Sri McCam ri Q ae ga I Se 9 al McCambrid J e Sin g er &Mahone Y V Illinois I Michigan I Missouri I New Jersey I New York I Pennsylvania I 'Texas www.smsm.com Jennifer L. Budner Direct (212) 651.7415 jbudnernsmsm.com August 16, 2017 VIA ELECTRONIC FILING AND OVERNIGHT DELIVERY Hon. Manual J. Mendez Supreme Court, New York County 71 Thomas Street, Room 210 New York, NY 10013 Dear Justice Mendez: Re: Supreme Court of the State of New York, New York County Roger J. Carilli (Index No. 190252/2015) Thomas Gallen (Index No. 190343/2015) Ernest Gilbert (Index No. 190198/2015) Defendant, Weil-McLain, by and through its attorneys, moves this Court for the entry of an order in limine base on the issues set forth below: GENERAL MOTION IN LIMINE Defendant Weil-McLain moves to preclude plaintiffs, plaintiffs' counsel, their witnesses. their employees and/or their agents from mentioning, referring to, or otherwise attempting to convey before the jury, or the venire, at any time during these proceedings, the subject matter of any of the following: 1. That this defendant, it agents or employees, is insured against liability for incidents alleged in plaintiff's complaint, for the reason that such evidence is not relevant to any issue in this lawsuit and the introduction of this evidence would be unduly prejudicial to this defendant. 2. That this defendant made any offer to settle with plaintiffs or that settlement negotiations were entered into or conducted between the parties. Such evidence is not relevant to any of the issues in this lawsuit. Settlement offers and/or negotiations do not constitute any admission on the part of this defendant and would tend to confuse the jury. Therefore, the introduction of such evidence would be unduly prejudicial to this defendant. 850 Third Avenue ~ Suite 1 100 ~ New York, NY 10022 ~ T: (212) fi51.750q ~ F: (212) 651.7499
3. The use of any prior deposition testimony or trial testimony which has not been stipulated to by this defendant. Weil-McLain objects to any such prior testimony as inadmissible hearsay, and also objects to use of any testimony where Weil-McLain was not a party to that litigation; Weil-McLain was not in privity with any parties present during the prior testimony; and it does not have a predecessor-in-interest who was present during the prior testimony and had a similar motive to develop the witnesses testimony; it was not present or represented at the prior testimony; and/or the witness has not been shown to be unavailable. Further, the issues involved in the prior depositions and trial testimony are not those which concern Weil-McLain in this litigation and will only serve to confuse the trier of fact. As such, it would be unfair and unduly prejudicial to admit this hearsay testimony when Weil-McLain did not have any opportunity to cross examine the witness. Therefore, such deposition or trial testimony should not be utilized at trial or admitted into evidence. 4. Any reference to Weil-McLain as an Asbestos Company or, in general, as a member of the "Asbestos Industry." Use of the terms Asbestos Company(ies) or "Asbestos Industry" is an effort to impose the knowledge of other companies on Weil-McLain and to inaccurately represent the nature of Weil-McLain s business to the jury. Any such representation is prejudicial and without probative value, and will only confuse the jury on the ultimate issue of whether the deceased inhaled asbestos dust from a Weil-McLain product, causing his illness. Therefore, Plaintiff should be barred from the use of these terms at trial. 5. Any mention of prior jury trial verdicts or other lawsuits. 6. Any and all references that the plaintiff and/or the deceased in this case is a victim or an asbestos victim. 7. Any and all reference to defense counsel as asbestos defense lawyers. 8. Any reference to the presence or use of any product containing asbestos on any job where deceased worked unless the evidence has been produced or provided during discovery and establishes that deceased used or was exposed to a product of defendant, that the product contained asbestos, that the asbestos-containing product emitted asbestos dust, that deceased inhaled asbestos dust which came from defendant s product, and that this caused his illness. 9. Any reference or comment by counsel at any time during voir dire or during the trial regarding the amount of money or time spent by the defendant in the defense of this matter, including attorney time and expenses and expert witness time and expenses. 10. Any statement that plaintiff s recovery will be shared with their attorneys, or that they have incurred expenses in bringing this lawsuit. 11. Any reference to any other lawsuit in which this defendant may have been involved or is involved. 12. Any statements or arguments which encourage or attempt to place the jurors in the place of the plaintiff, plaintiff s decedent, plaintiff s family members or plaintiff s friends. Page 2 of 7
13. Any references, statements or arguments that the jury should attempt to send defendant a message. 14. Any references, statements or arguments concerning personal beliefs or past experiences of counsel. 15. Any references, statements or arguments that the Defendant has to pay its fair share or a debt. 16. Any references, statements or arguments that the family members of the plaintiff or plaintiff s decedent suffer pain or mental anguish. 17. Any references, statements or arguments that this motion has been filed, or to any ruling by the Court in response to this motion, suggesting or implying to the jury that Weil- McLain has moved to prohibit proof or that the Court has excluded proof of any particular matters. 18. Requesting defendant s counsel to produce any information or documents in its file in front of the jury. 19. Any comment by counsel for plaintiff that he knows or has learned from his past experience that this defendant or other defendants are unwilling to fully cooperate with discovery, or any other comment regarding the manner in which this defendant may have defended lawsuits in the past based upon the personal knowledge of counsel for Plaintiff. Further, any comment that defendant has hidden documents or other evidence from the plaintiff as counsel for plaintiff knew they would. 20. Any reference to any prior personal experience of any of the attorneys for the plaintiff which relate to physical injuries or illnesses or their treatment. 21. Any statement by counsel at any time during the course of this trial that the attorneys for the defendant or the experts retained by the defendant to testify in this cause have collaborated or conspired with attorneys or experts who represent or are associated with other defendants with respect to this case or any other case. Specifically, this motion is intended to include any reference to the exchange of depositions or any other activities which tend to create an image of a united industry agent against a single plaintiff in this cause. Any reference to these particular subjects is irrelevant, and is of such an inflammatory nature that to convey this information to the jury would be highly improper and prejudicial to the defendant. 22. That the plaintiff not mention or state to the jury what they have been told by a doctor, osteopath, chiropractor, or medical witness as to plaintiff s respective physical conditions or disabilities or the decedent s respective physical conditions or disabilities. Such statements are both prejudicial and cumulative. In addition, such statements constitute hearsay and are inadmissible. Page 3 of 7
23. Any reference by plaintiff s counsel to defendant s counsel as insurance lawyer, or any reference to adjusters, claims handlers, or any similar reference which would imply or suggest to the jury that the defendant is covered by liability insurance, either in whole or in part. 24. That defendant has failed to call any particular witness available equally to all parties herein through the subpoena process. 25. That defendant is or is not covered by liability insurance of any kind. 26. Any reference to profits being made at the expense of others, or without regard to the safety of welfare of others or any similar appeal to sympathy, bias or prejudice. 27. Any reference to the wealth, power, corporate size or assets of Weil-McLain which would suggest to the jury that the jury ought to compare the relative wealth of the plaintiff and defendant in answering the jury questions. 28. That plaintiff and counsel for plaintiff make no reference that since this defendant is a company, it is without a heart and soul, or comment as to its financial capacity, or make any other reference implying that this defendant, as a company, has any less rights under the law than a natural person. The fact that defendant is not a natural persons is totally irrelevant and therefore inadmissible. Furthermore, any reference to the fact that it is a financially solvent entity, or any related inference is not only irrelevant, but is prejudicial and would unduly confuse the jury and is therefore inadmissible. 29. That no mention be made or testimony given concerning the future consequences of any injury or disease in the absence of medical testimony that in reasonable medical probability the anticipated conditions will occur. 30. That any friend, relative, co-worker or other person who had been exposed to asbestos suffered any injury as a result of said exposure or died from an illness related to said exposure. 31. That defendants or any other companies have settled prior asbestos-related claims. 32. That juries in prior asbestos cases have awarded damages to any plaintiff, or the size of the awards. 33. That the jury should or would set the safety standards in New York City, or any other area. 34. Any reference to a conspiracy or a conspiracy of silence or other industry wide collusion or attempt to hide evidence, unless there is an allegation in the Complaint and proof of same against the defendant. 35. Any reference or suggestion that this defendant has taken any remedial measures with respect to defendant s product, marketing, warnings or instructions, be it in the form of Page 4 of 7
alterations, changes or otherwise, unless and until it is first sufficiently demonstrated outside the presence or hearing of the jury that such evidence is admissible for some legitimate purpose other than to prove negligence or culpable conduct on the part of this defendant. 36. That plaintiff has been told anything by an expert concerning any matter, for the reason that such revelation would be hearsay, not subject to proper cross-examination by Defendant s counsel, and for the further reason that such expert testimony would not be admissible without a proper predicate concerning the expert s qualifications and abilities to give such testimony. 37. Any settlement, offer of settlement, which has been made or any reference to the fact that such lawsuit could not be or was not settled, compromised or resolved, or that Weil- McLain never made a settlement offer, including any comments that some cases have to be brought to a jury, it was necessary to file this suit, or other similar comments. 38. Weil-McLain additionally moves this Court in limine for an order as follows: a. That each party advise all other parties, at least forty-eight (48) hours in advance, of each witness that the party will call at trial. b. That each party designate documents forty-eight (48) hours prior to seeking to admit the documents into evidence or to elicit testimony for a witness concerning the document, with the exception of documents used for impeachment purposes or for demonstrative purposes. c. That no documents be specifically referred, quoted, or published to the jury until the opposing side has had the opportunity to request a hearing on the admissibility, outside the presence of the jury. d. That each party designate the portion of each deposition seventy-two (72) hours prior to seeking to read the deposition to the jury; that each party designate objections and/or counter-designations to proposed deposition testimony within twenty-four (24) hours thereafter. MOTION IN LIMINE TO EXCLUDE DOCUMENTS CREATED OR MAINTAINED BY OTHER CORPORATE PARTIES TO THE CURRENT SUIT AS EVIDENCE REFLECTING WEIL MCLAIN S KNOWLEDGE Defendant Weil-McLain moves this Court to prohibit Plaintiffs from asserting, directly or indirectly, through witnesses or exhibits, that documents created, maintained, or circulated in house by other corporations or entities, not published or generally available to the public, can be used to impute knowledge of the contents of same, or of facts stated therein, to Weil-McLain. Weil-McLain requests that Plaintiffs be prohibited from making such assertions and that this Court specifically give a limiting instruction to the jury that these documents may not be used as evidence. Page 5 of 7
MOTION IN LIMINE TO PRECLUDE PLAINTIFF S FROM CALLING CUMULATIVE / IRRELEVANT EXPERT WITNSSES AT TRIAL Weil-McLain moves to preclude the plaintiff from calling cumulative witnesses to testify at trial. Allowing cumulative testimony will unnecessarily prolong the trial without any corresponding advance. The court has inherent power to limit cumulative evidence. This includes the number of experts that may be called by either party to testify upon a given issue in light of the nature of expert opinion as evidence and of the possibility that the trial may be of undue length if the parties are permitted to call expert witnesses without restriction as to the number called. Irrizary by Velez v. City of N.Y., 95 A.D.2d 713, 713, 464 N.Y.S.2d 5, 6 (1st Dep t 1983). If there is significant overlap between expert testimony but some differences, the best remedy is to limit the subsequent expert s testimony to material not covered by the first witness. Shafran v. St. Vincent's Hosp. & Med. Ctr., 264 A.D.2d 553, 557, 694 N.Y.S.2d 642, 645 (1st Dep t 1999). A Court may exclude evidence that is proximately relevant if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advance. People v. Davis, 43 N.Y.2d 17, 27, 371 N.E.2d 456, 460 (1977). Further a Court can exclude expert testimony that is not sufficiently relevant. People v. Walker, 156 A.D.2d 271, 271, 548 N.Y.S.2d 661, 662 (1st Dep't 1989). We request that that the Court preclude overlapping expert testimony and limit subsequent expert s testimony to material not covered by the first witness. MOTION IN LIMINE TO PREVENT PLAINTIFFS FROM SUBMITTING MEDICAL BILLS IN EXCESS OF ACTUAL AMOUNT PAID Defendant Weil-McLain moves this Court to preclude Plaintiffs from submitting medical bills in excess of the actual amount paid by Medicare, Medicaid and supplemental insurance for the injuries at issue in this lawsuit. WHEREFORE, Defendant, Weil-McLain respectfully requests that this Court enter an order granting the relief requested herein and granting any other relief as the Court deems appropriate and just. Entry of such order will allow the parties to adequately protect their client s interests at trial. Respectfully, SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD. /s/jennifer L. Budner Jennifer L. Budner cc: (via first class mail) Weitz & Luxenberg, P.C. Page 6 of 7
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