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DEYBLLP
July 27, 2018
VIA FEDERAL EXPRESS
The Honorable Richard T. Aulisi
Supreme Court of the State of New York
Fulton County Courthouse
223 West Main Street
Johnstown, NY 12095
Re: Lynn M. Lockwood as Executrix for the Estate of Kathryn F. Mohl v. A.O. Smith
Water Products Co., et al.
3JDAL Albany County, Index No.: 901530-15
Dear Justice Aulisi:
On behalf of defendant Gould Electronics Inc. ("GEI")', we respectfully submit this letter
application for the following in limine motions in the above referenced case. GEI also adopts
any motion in limine made by any other defendant which may be pertinent to GEI.
E!!£ls
Plaintiff Lynn M. Lockwood seeks to recover for personal injuries sustained by decedent
Kathryn Mohl due to decedent's alleged secondary, take-home exposure to asbestos from 1978
to the early 1990s. Plaintiff alleges decedent was secondarily exposed to asbestos at home from
laundering her husband Clyde Mohl's work clothes. Plaintiff claims that, as a result of Mrs.
Mohl's exposure to asbestos, she was diagnosed with mesothelioma on approximately January
14, 2015 and passed away on March 30, 2015.
Mrs. Mohl passed away prior to being deposed.
The deposition of Mr. Paul Hoffman, the former co-worker of Mrs. Mohl's deceased
husband, was conducted over the course of one day, on November 2,2016.22016. During the
deposition, Mr. Hoffman testified that decedent's husband Clyde Mohl worked with and around
I GEI was created in 1990 and did not sell, ship, distribute, contract for, or manufacture electrical products. Plaintiff
Lynn Lockwood herein alleges decedent was secondarily exposed toasbestos-containing dust from laundering her
husband's work clothes, who allegedly worked with electrical equipment purportedly manufactured by"Gould," a
precursor entity with respect to certain products in relation to GEI.2 References to "Hoffman Tr. at____"
at " are to the pages of the transcripts of the discovery deposition testimony of
product identification witness Paul Hoffman.
Darger Errante Yavitz & B!au L.LP
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Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 2
a variety of asbestos containing products as a maintenance supervisor while employed by Garden
Way in Troy, NY. Mr. Hoffman worked with Mr. Clyde Mohl from 1978 until the early 1990s,
approximately 1992, when Mr. Mohl retired. Mr. Hoffman testified that Mr. Mohl worked in the
maintenance shop and in several buildings that were part of the Garden Way facilities,
performing maintenance work and supervising others performing maintenance work. Asbestos
insulated pipes were located throughout the buildings. Mr. Hoffman alleged that Mr. Mohl was
present while work was performed on boilers, pumps and air conditioner units found at buildings
that comprised the Garden Way facilities. Mr. Hoffman further testified that Mr. Mohl
supervised other employees working on disconnect switches, motor feeds and motor controls.
The deposition of Michelle Sullivan, decedent's adult daughter, was taken on September
19, 2017. She testified regarding decedent's mesothelioma diagnosis and decedent's laundrypractices. Michelle Sullivan did not identify any product manufacturers during her deposition.
Legal Standard
Under New York law, only relevant evidence is admissible. Evidence is relevant if it has
any "tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without theevidence."
People v.
Davis, 43 N.Y.2d 17, 27 (1977); see also People v. Aulet, 111 A.D.2d 822, 825 (2d Dept 1985)
(affirming exclusion of evidence as not relevant or probative). In other words, evidence is
relevant and admissible if "it has any tendency in reason to prove the existence of any materialfact."
Am. Motorist Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 468 (2d Dept 2002).
Relevancy requires that facts should not be submitted to the jury unless logically and legallyrelevant to the issues presented for determination at trial. See id. Thus, irrelevant evidence must
be excluded. Id. Further, under New York law, evidence that may be otherwise relevant is not
necessarily admissible. A court has the discretion to exclude relevant evidence if "its probative
value is substantially outweighed by the danger that it will unfairly prejudice the other side or
mislead thejury."
See People v. Scarola, 71 N.Y.2d 769, 777 (1988).
1. This Court Should Preclude Lay Opinion Testimony that GEI -
Attributable Products Contained Ashestos.
It is a well-established rule that lay witnesses are not permitted to provide opinions on
subject matters beyond the witness's perception. See People v. Creasy, 236 N.Y. 205, 222
(1923) ("[o]pinion evidence is never allowed, except when from the nature of the case the facts
cannot be stated in such a manner as to enable the jury to form an accurate judgment therefrom,
and no better evidence than such opinions is obtainable").obtainable"
Any opinion testimony regardingwhether a product did or did not contain asbestos should be limited to the
parties'expert
witnesses.
Mr. Hoffman testified that when others were working on motor feed boxes, Mr. Mohl
may have been exposed to asbestos from his work supervising others removing and replacing
asbestos-containing insulation plates in the equipment. Tr. 242:13-24. Mr. Hoffman testified that
exposed to asbestos others onMr. Mohl may have been from supervising working disconnect
material.
"'Bakelite'
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 3
switches with asbestos-containing insulation blocks. Tr. 259:12-24.. Mr. Hoffman testified he
had no formal training in identifying asbestos-containing materials. Tr. 264:6-8. Mr. Hoffman
testified that he learned through trade magazines and a lot of talk about abatement that these
materials contained asbestos. Tr. 264:15-22.
As Mr. Hoffman's opinion lacks any scientific knowledge or specific product
composition information, there is no legitimate basis on which he could conclude that the alleged
Gould electrical products Mr. Mohl worked in the vicinity of contained asbestos.
2. This Court Should Preclude Any Testimony Offered by Plaintiff That"Bakelite" Contained Asbestos.
GEI anticipates that Plaintiff will seek to introduce evidence purporting or tending to show
that because Mr. Clyde Mohl was allegedly exposed to dust from"bakelite"
in electrical
equipment, decedent was secondarily exposed to asbestos dust from the equipment while
laundering Mr. Mohl's work clothes. While GEI never manufactured"bakelite"
or"bakelite"
products, Mr. Hoffman alleged that electrical equipment Mr. Mohl encountered contained"bakelite"
or a"bakelite" material.3
To the extent"bakelite"
refers to the trade name of a product,
more often than not that product did not contain asbestos This testimony should be precluded
because (1) Mr. Hoffman admitted that he was using bakelite as a generic term, descriptive of a
stiff, early plastic material; and (2) Mr. Hoffman did not have personal knowledge of whether the
bakelite to which he referred contained asbestos.
A."Bakelite" is a generic term and may not refer to an asbestos-containing
product.
Most of the material commonly referred to as"bakelite"
did not contain asbestos. While
at one time"Bakelite"
was a registered trademark of Union Carbide (see 55 Fed Reg 5I57-58
[I990]), even the majority of"Bakelite"
manufactured by Union Carbide did not contain asbestos.
See 55 Fed Reg 5157-58 [1990]. Moreover, the term bakelite has long since ceased to refer to a
particular product manufactured by any particular entity and has been widely used as a generic
term, similar to the way the word"kleenex"
is used today to refer to all facial tissue generally, not
in reference to a particular manufacturer or brand.
There are innumerable references in technical and popular literature establishing that
bakelite is a generic term for a resin, plastic-like material. For instance, in Plastic and Synthetic
Rubbers, the authorsnote:'"Bakelite'note: became a household word in the years after the 1914-18 war
and was applied indiscriminately to any material which looked as if it might be made of synthetic
3 Mr. Hoffman testified that he believed the Gould electrical equipment at Garden Way contained a material that hetestified was
"bakelite." See Hoffman Tr. at 382:4-1 1; 735:18-23. He testified that he was not referring to a brandname when he used the term "bakelite," but that he was using the term in a generic sense to refer to a hard, plastic
insulating material. See Hoffman Tr. 144:12-21; 288:21-24, He stated that he was told bakelite contained asbestos.See Hoffman Tr. l44:2-7.
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions inlimine
July 27, 2018
Page 4
resin."See Plastic and Synthetic Rubbers. Likewise, the authors of Plastics state: "The first
synthetic resinoids of this type were given the name Bakelite, and it is a tribute to the rapid
expansion of these products that to the great mass of people all over the world they stand as a
synonym forplastics."
See Plastics. The scientific community continues to use the term bakelite
generically. Id. Even today, plastic synthetic resins are commonly referred to as bakelite, a generic
term.
The constituent ingredients of"bakelite"
insulating material, and whether one piece of"bakelite"
did or did not contain asbestos, are not areas of common knowledge. Mr. Hoffman
did not state that there was a name or the words"Bakelite"
anywhere on the bakelite material
encountered in electrical equipment. See Hoffman Tr. at 288:25-289:3. Without actually testingthe material he referred to as
"bakelite,"Mr. Hoffman would not be able to determine whether
the"bakelite"
components allegedly encountered in the GEI-attributable products actuallycontained asbestos. As such, it is impossible to determine whether any of the dust Mr. Mohl mayhave encountered in conjunction with electrical equipment did, in fact, contain asbestos.
Therefore, Plaintiff cannot proffer testimony that the Gould electrical equipment Mr. Mohl
worked in the vicinity of contained an asbestos-containing bakelite.
When, as here, the term"bakelite"
is being used generically, it would be impossible for
anyone to conclude, without more, that it contained asbestos. Moreover, Mr. Hoffman admitted
he did know if any of the bakelite he encountered actually contained asbestos. Therefore, any
testimony or evidence offered by Plaintiff to show that the bakelite Mr. Mohl may have allegedlyencountered contained asbestos must be precluded.
3. This Court Should Preclude Expert Opinion Testimony Regarding "SpecificCausation" as it Relates to Any GEI-Attributable Product.
Under settled Court of Appeals law "[i]n toxic tort cases, an expert opinion on causation
must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the
particular injuries plaintiff suffered (general causation), and (3) that the plaintiff was exposed to
sufficient levels of the toxin to cause such injuries (specificcausation)."
Sean R. v. BMW ofNorth America, LLC, 26 N.Y.3d 801, 808 (2016), citing Parker v. Mobil Oil Corp., 7 N.Y.3d
434, 448 (2006); accord Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014);
Juni, 148 A.D.3d 233, 236.
In Parker, supra, the Court of Appeals established that in a toxic tort case an expert
opinion is lacking in foundation and is inadmissible if it does not provide a "scientificexpression"
quantifying the amount of exposure to establish that the exposure was sufficient to
be a contributing cause of the disease. Accord, Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d
762 (2014).
Recently the First Department confirmed that Parker and its progeny applied in the
asbestos context. Juni v. A.O. Smith Water Products Co., 148 A.D.3d 233 (lst Dept 2017)("Juni"). In Juni, the plaintiff claimed he was exposed to asbestos from dust created from his
work over years with brakes, clutches, and manifold gaskets on Ford Motor Company vehicles.
Inld. Juni, Dr, Jacqueline Moline, the plaintiffs expert in internal medicine and occupational
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 5
and environmental science, asserted, inter alia, that the plaintiff's "cumulative exposures to
asbestos caused hismesothelioma."
Id. Dr. Steven Markowitz, an internist, occupational
medicine specialist and epidemiologist, opined that "chrysotile in friction products, if it becomes
airborne and inhaled, can cause malignantmesothelioma."
Id. at 235-36.
Following trial, a jury returned a verdict for the plaintiff, but the trial court granted Ford's
motion to set it aside. Id. Agreeing with the trial court, the First Department held that these
opinions were insufficient to establish causation for the plaintiff's mesothelioma, and reiterated
Parker and Cornell's requirement that a plaintiff must establish "some scientific basis for findingof causation attributable to the particular defendant's
product."Id. at 237. As the Court wrote,
"plaintiff was obliged to prove not only that Juni's mesothelioma was caused by exposure to
asbestos, but that he was exposed to sufficient levels of the toxin from his work on brakes,
clutches, or gaskets, sold or distributed by defendant, to have caused hisillness,"
and that the
plaintiff had failed to satisfy this standard. Id. at 233-34.
Citing Sean R., the Juni court cautioned that "[th]e fact that asbestos, or chrysotile, has
been linked to mesothelioma, is not enough for a determination of liability against a particular
defendant; a causation expert must still establish that the plaintiff was exposed to sufficient
levels of the toxin from the defendant's products to have caused hisdisease."
Id. at 234.
"Causation from exposure to toxins in a defendant's product must be established through some
scientific method, such as mathematical modeling based on a plaintiffs work history, or
comparing the plaintiffs exposure with that of subjects of reportedstudies."
Id.
Applying Parker, the Juni court explicitly held that the testimony in all ways
indistinguishable from that to be offered by Dr. Zhang and Dr. Ginsburg, that exposure to eachdefendants'
product was a substantial contributing cause of the disease because it contributed to
the cumulative total, was inadmissible. As the court wrote:
(1) Cumulative Exposure: "The trial court also correctly declined to adopt plaintiffs
theory of cumulative exposure to support the verdict... reliance on the theory of
cumulative exposure, at least in the manner proposed by plaintiff, is irreconcilable
with the rule requiring at least some quantification or means of assessing the amount,
duration, and frequency of exposure to determine whether exposure was sufficient to
be found a contributing cause of thedisease."
Juni, 148 A.D.3d at 239 (citing Parker,7 N.Y.3d at 449).
(2) A Consensus as to Low Dose: "The dissent references a 'consensus from the medical
and scientific communities that even low doses of asbestos exposure, above that in the
ambient environment, are sufficient to causemesothelioma.' We do not agree that the
existence of any such consensus entitles a particular plaintiff to be awarded judgment
against a particular defendant by merely establishing some exposure to a product
containing any amount ofasbestos."
Juni, 148 A.D.3d at 239; Accord, Pistone v.
American Biltrite, Inc. Index No. 607637/2015 (Sup. Ct. Nassau Co. April 18, 2018).
Trial courts in the Second Department, applying Parker and Juni, also have rejected so-
called expert testimony that attempted to prove causation based on the theory of cumulative
exposure to low doses of asbestos.
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 6
In Novello v. American Honda Motor Co., Inc., et al., Index No. 607229/2015 (Sup. Ct.
Nassau Co. August 2, 2017), the court granted reconsideration to its order denying summaryjudgment and, applying Juni, reversed itself and granted summary judgment on the ground that
plaintiff's theory of cumulative exposure did not comply with the requirement to provide some
quantification or means of assessing the exposure to each individual defendant's product and
showing that the exposure was sufficient to cause the disease. The court wrote:
Prior to Juni, the potential to establish causation could exist despite
inability to quantify exposure. Based upon the holdings of the Court
in Juni, Plaintiffs in the instant matter have not put forth expert
opinions that have the potential to establish causation as required
inasmuch as it now stands for the proposition that "reliance on the
theory of cumulative exposure... is irreconcilable with the rule
requiring at least some quantification or means of assessing the
amount duration, and frequency of exposure to determine where
exposure was sufficient to be found a contributing cause of thedisease."
Absent some quantification or means of assessing the
exposure to each individual Defendant's product, the foundation forPlaintiffs' experts'
opinions regarding causation is lacking and
therefore legally insufficient.
Id at 3-4.
Similarly, in Pistone v. American Biltrite, Inc., the trial court also held that the theory of
cumulative exposure was inadmissible in an asbestos case. In that case, Dr. Moline opined that
the plaintiff's exposure to asbestos at her father's work sites and to his clothing at home can
cumulatively lead to an increased risk of mesothelioma, without regard to the product, fiber type
or the capability of a specific fiber to cause thedisease."
The court found that this opinion was
not sufficient to forestall the entry of summary judgment, as Dr. Moline had not "demonstrated
that the plaintiff was subjected to adequate amounts of mesothelioma causing asbestos from
either of the defendant's products to cause her disease. Suffice to say, the plaintiffs have clearlynot met their burden via the opinion of Dr. Moline, either. She has provided no evidence that
either of thedefendants'
products contained asbestos which causes peritoneal mesothelioma nor
has she demonstrated that the plaintiff was subjected to adequate amounts of mesothelioma
causing asbestos for either of the defendant's products to cause herdisease."
Id. at 23.
Thus, this Court should reject as a surrogate for quantification the "any exposure/each
and every exposure/cumulativeexposure"
theories because they are not expressions of dose and,
separately, these theories concede that certain low-level exposures are not substantial in and of
themselves (i.e., background and below background), and can only be deemed potentiallycausative when cumulative with other exposures. This reasoning, of course, is not scientific or
reproducible, and is easily confusing to a juror trying to understand causation.
This Court should preclude Plaintiff's experts from testifying as to specific causation
because their opinions nowhere address the specific causation question as to GEI, i.e., whether
decedent's secondary take home exposure to asbestos-containing dust from products attributable
caused mesothelioma. areto GEI was sufficient to have her PiaintifFs expert reports no more
Hon. Richard T. Aulisi
Kathryn kohl: Defendant GEI's motions in limine
July 27, 2018
Page 7
than opinions touching on general causation; i.e., that asbestos exposure causes mesothelioma
and that Mrs. Mohl's mesothelioma was caused by her secondary take home exposure to
asbestos, but they are utterly lacking in a "scientific expression of plaintiff's exposurelevel"
as
required by Parker as they do not quantify or otherwise provide a scientific expression to
provide a foundation for the opinion that Mrs. Mohl's exposure levels to a GEI-attributable
product were sufficient to have caused her injury. The opinions of Plaintiff's experts here,
which assert that each exposure to asbestos "contributed to the cumulativedose,"
are exactly the
same as those found to be insufficient under Parker by the Juni court. As a result, this Court
should preclude Plaintiff's experts from offering an opinion on specific causation.
A. Testimony as to "Cumulative Exposure" Must be Precluded.
Plaintiffs expert reports by Dr. David Zhang and Dr. Mark Ginsburg do not provide a
scientific expression of quantify decedent's exposure to asbestos in general or her exposure to
asbestos in GEI-attributable products specifically sufficient to provide a foundation for anyconclusion that exposure caused decedent's mesothelioma. The expert opinions state no more
than that the cumulative exposure to any defendant's products was a substantial contributingfactor in causing decedent's disease, a formulation which does not approach the requirements set
forth in Parker and Juni.
To the extent Plaintiff's experts will opine that decedent developed mesothelioma as a
result of her cumulative secondary, take-home exposure to asbestos, or that each and everyexposure to asbestos is a substantial factor in causing mesothelioma, including the mesothelioma
suffered by decedent, this Court should preclude such testimony. As is shown below, under the
law of this State, this kind of testimony does not provide a sufficient foundation to proffer an
opinion regarding causation in a toxic tort case because it does not sufficiently show that
exposure to any particular defendant's product was a substantial contributing factor in causingthe decedent's disease. Nonetheless, in his report, Dr. Zhang explicitly adopts the cumulative
exposure theory of causation, as he writes: "In this context Mrs. Mohl's cumulative exposure to
asbestos was a substantial contributing factor in the development of her malignant mesothelioma.
Additionally, the cumulative exposure to each company's asbestos-containing products with
visible asbestos dust significantly contributed to the development of her malignantmesothelioma."
Plaintiff's expert Dr. Ginsburg stated in his report: "... that Ms. Mohl's
cumulative exposure to asbestos was a substantial contributing cause of her malignantmesothelioma."
Dr. Ginsburg further opined that "... the cumulative exposure to asbestos from
each company's asbestos product or products was a substantial contributing factor in the
development of Ms. Mohl's malignant mesothelioma anddeath."
The opinions of Plaintiff's experts here, which assert that each exposure to asbestos
"contributed to the cumulativedose,"
are exactly the same as those found to be insufficient under
Parker by the First Department in Juni, and by the Novello and Pistone trial courts located in the
Second Department, and must be precluded.
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 8
4. This Court Should Preclude Evidence of Regulatory Materials and
Public Health Pronouncements Regarding Potential Adverse Health
Effects From Different Types of Asbestos Fibers.
Plaintiff's counsel and their witnesses, including testifying experts, typically attempt to rely
on pronouncements by organizations such as OSHA, EPA, NIOSH, IARC, the WHO, and/or the
IPSC to support the theory that chrysotile caused decedent's disease. Plaintiff should be
precluded from referring to or relying on any of these types of regulatory materials or public
health pronouncements regarding potential adverse health effects from different types of asbestos
fibers during trial of this action because, inter alia, i) these materials reflect policy decisions
based on the "precautionaryprinciple,"
and do not constitute valid scientific evidence of
causation as required by Parker, supra; and, ii) they are hearsay as to which no exception
applies. See e.g., In re Eighth Judicial Dist. Asbestos Litig., 576 N.Y.S.2d 757 (Sup Ct. Erie Co.
1991) (excluding EPA's Final Rule on asbestos as hearsay, noting that the document did not
qualify for the public records exception). Moreover, evidence from these regulatory and public
health pronouncements is far more prejudicial than probative, especially when such
pronouncements are discussed by Plaintiff's scientific experts. See e.g., Betz v. Pneumo Abex,
LLC, 44 A.3d 27, 53 (Pa. 2012) (recognizing "the influential nature of expert testimony on
complex subjects, and the potential that distortions have to mislead laypersons.")
5. This Court Should Preclude Any State-of-the-Art Evidence Against GEI That Post-
Date Decedent's Exposure Period.
Any documentary or testimonial state-of-the-art evidence that postdates the relevant time
period relating to GEI should be deemed inadmissible and precluded as to defendant GEI.
Plaintiff's expert witnesses disclosures do not specify experts capable of testifying regarding
state-of-the-art, but reference prior disclosures in other cases, which have included: Dr. Barry
Castleman, Dr. David Rosner, and Dr. Gerald Markowitz. In the instant case, Plaintiff asserts
causes of action for both negligence and strict liability. The basis for Plaintiff's claims is an
alleged failure to warn. To establish their claims, Plaintiff must prove that a defendant knew, or
by the exercise of reasonable care should have known, of the potential danger, and in the
reasonable course of its business, should have been able to foresee the possible uses of its
product, as well as the potential injury that might result from such use. See Lancaster Silo &Block Co. v. Northern Propane Gas Co., 54 AD.2d 820 (4th Dept 1980).
Under New York law, the duty to warn is commensurate with the state-of-the-art at the
relevant time. See Bichler v. Willing, 58 A.D.2d 331 (lst Dept 1977). In the Fourth Department
case of Bolm v. Trumph Corp., 71 A.D.2d 429 (4th Dept 1979), the court held that it was an error
to receive into evidence post-accident studies, safety tests, and testimony where the plaintiff did
not first establish that such post-accident studies and tests were within the state-of-the-art at the
time of the manufacture. Id. at 975. Furthermore, in In Re Eighth Judicial District Asbestos
Litigation, the court held that portions of United States Environmental Protection Agency's
rule onasbestos"
(hereinaAer was not admissible an asbestos matter. In(EPA) "final"Rule"
) in
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 9
Re Eighth Judicial District Asbestos Litigation, 152 Misc.2d 338 (Sup. Ct., Erie County 1991).
The Rule was promulgated in 1989 and the plaintiff's alleged exposure to asbestos occurred prior
to that time. The court stated that the Rule was "simply too late in the chain of events to be
helpful to the trier of fact in proving or disproving a material fact at issue herein". Id. at 760.
Similarly, in the case at bar, any state-of-the-art documents, literature, or testimony published
subsequent to relevant time period at issue against GEI are not relevant to the actual events in the
case, are devoid of evidentiary value, and have no bearing on state-of-the-art knowledge as it
existed during the relevant time frame.
6. This Court Should Preclude Any Evidence Regarding Subsequent Remedial
Measures
Mentioning, referencing, or introducing evidence of any subsequent remedial measures or
actions is improper because such evidence is not admissible on the issues of negligence or
culpable conduct in connection with the event. Evidence of subsequent measures is also not
relevant on the issue of gross negligence. Dusenbery v. U.S., 534 U.S. 161, 172 (2002).
Evidence of GEI's knowledge and conduct taking place after Mrs. Mohl was allegedlyexposed to GEI-attributable products is wholly irrelevant to the disputed issues in this case.
People v. Davis, 43 N.Y.2d 17, 27 (1977) (under New York law, only relevant evidence is
admissible, and relevant means "evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence") (citations omitted); see also People v. Scarola, 71 N.Y.2d 769
(1988); People v. Alvino, 71 N.Y.2d 233 (1987). Such evidence has no bearing on the relevant
inquiry, namely, what GEI knew or did, including what warnings it provided, during the time
when decedent allegedly experienced secondary, take home exposure to GEI-attributable
products. Evidence outside the scope of that pertinent exposure period is unconnected in any
way to Plaintiff's allegations against GEI, and it does not have the tendency to prove or disprove
any material fact at issue. On the basis of relevancy alone, evidence post-dating decedent's
alleged secondary, take home exposure to GEI-attributable products should be excluded prior to
trial.
Even assuming such evidence is relevant, which it clearly is not, it should nevertheless be
excluded under New York law. It is well-established that relevant evidence may be excluded if
"its probative value is outweighed by the danger that its admission would prolong the trial to an
unreasonable extent without any corresponding advantage; or create substantial danger of undue
prejudice to one of theparties."
Davis, 43 N.Y.2d at 27 (citations omitted). Relevant evidence
may also be excluded when the probative value is outweighed by the danger that it will mislead
the jury. Scarola, 71 N.Y.2d at 777 (citations omitted). Admitting evidence of GEI's knowledge
and conduct taking place after decedent was allegedly secondarily exposed at home to Gould
products would lead to unnecessary and distracting litigation over irrelevant matters. Further,
interjection of disputes over what GEI did or knew after the date of decedent's last alleged
exposure would naturally lead to juror confusion and prejudice against GEI. Jurors could not be
expected to exclude from their minds allegations about what GEI allegedly did or knew after the
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 10
date of decedent's last alleged secondary exposure at home in rendering a verdict, although such
evidence would be clearly irrelevant.
7. This Court Should Preclude Plaintiff's State-of-the-Art Experts From InterpretingMedical Articles and Scientific Literature.
Whoever testifies as Plaintiff's state-of the art expert should be precluded from
interpreting medical articles and scientific literature at trial. In Celotex Corp. v. Tate, 797 S.W.2d
197, 202 (Tex. Ct. App. 1990), the court granted defendant's motion to limit Dr. Castleman's
testimony to matters concerning existence of medical articles, as distinguished from testimony
concerning interpretation and contents of those articles). Dr. Rosner is considered a historian
who has compiled printed materials allegedly relating to the hazards of asbestos exposure datingback to the late nineteenth century and purports to offer opinions about the meaning of those
documents. Such opinions are not the proper subject of expert testimony because the jury is
capable of interpreting the same documents on their own. These experts should also be precluded
from testimony about any individual defendant's state of mind. In Threadgill v. Manville Corp.
Asbestos Disease Compensation Fund 928 F.2d 1366 (3d Cir. 1991), the appellate court affirmed
the trial court's decision, holding that Dr. Castleman improperly testified that a corporation
fraudulently concealed its knowledge of asbestos hazards.
8. All Evidence Pertaining to GEI's Financial Condition Should be Excluded from the
First Phase of Trial.
This court should preclude any and all evidence pertaining to GEI's financial condition.
Such evidence is only admissible in the punitive damages phase of a trial. See Prior v. Brown
Transport Corp., 103 A.D.2d 1042 (4th Dept 1984) (holding that evidence of defendant's wealth
is irrelevant until plaintiff obtains special verdict entitling plaintiff to punitive damages);
Varriale v. Saratoga Harness Racing, Inc., 76 A.D.2d 991, 992 (3d Dept 1980). The punitive
damages issue cannot be presented to the jury during the first phase of this trial, however.
Bifurcation of the punitive damages phase of a trial is required in order to avoid any undue
prejudice during the liability phase. Tillery v. Lynn, 607 F. Supp. 399, 403 (S.D.N.Y. 1985)
(ordering bifurcation of punitive damages "in the interest of justice and to avoid any undue
prejudice during the liability phase.").
Moreover, bifurcation is required in order to preclude an evidence of a defendant's
wealth or financial condition. The underlying rationale behind this rule is that a defendant's
financial condition might taint the jury's determination of the underlying liability case and the
issue of malice. See Rupert v. Sellers, 48 A.D.2d 265, 272 (4th Dept 1975) ("Defendant's wealth
should not be a weapon to be used by plaintiff to enable him to induce the jury to find the
defendant guilty of malice, thus entitling plaintiff to punitive damages. To avoid such possible
abuse, we conclude that the split trial procedure should be used ..."). Thus, the well-settled rule
in New York is that "evidence of fa] defendant's wealth [can] not be brought out upon trial
unless and until the jury [brings] in a special verdict that plaintiff is entitled to punitive damages
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 11
againstdefendant."
Rupert, supra; Prior, supra; and Varriate supra. Accordingly, in the event
that the Court should find that Plaintiff is entitled to submit evidence in furtherance of a punitive
damages claim, such a claim should be bifurcated and evidence related to GEI's financial
condition should be excluded from the first phase of trial.
9. This Court Should Admit Deposition Transcripts and Interrogatories of All Article
16 Fault Sharers, and all Evidence Adduced by Plaintiff Against Absent Defendants.
Pursuant to the CPLR, discovery served by other entities is admissible to prove the
liability of Article 16 fault sharers. CPLR 3131 provides that answers to interrogatories may be
used at trial 'to the same extent as the depositions of aparty."
In 1997, CPLR 3117 was amended
to add language clarifying that deposition testimony is admissible at the request of a party who
was adverse to the deponent as of the date of the deposition or who is adversely interested when
the deposition is offered into evidence. Furthermore, CPLR 31I7[a][2] was specifically amended
to clarify that such discovery is admissible at trial even after a defendant has settled the case. See
Mem. Of Assembly Rules Comm., Bill Jacket, L 1996, ch. 117. CPLR 3I17[a][2] now provides
that:
"the deposition testimony of a party or of any person who was a
party when the testimony was given or of any person who at the time
of the testimony was given was an officer, director, member,employer or managing or authorized agent of a party, may be used
for any purpose by any party who was adversely interested when the
deposition testimony was given or who is adversely interested when
the deposition testimony is offered inevidence."
The prior deposition testimony and interrogatory responses under CPLR 3131 of a
defendant who settles before trial is therefore admissible for any purpose by any party. The
deposition testimony and interrogatories of any parties including Article 16 entities taken in
other related cases should be admissible, as the Plaintiff here shares a unity of interest withplaintiffs'
with alleged asbestos exposures. New York City Asbestos Litigation CoordinatingJustice Manuel Mendez has ordered that admitting interrogatory responses and deposition
testimony of Article 16 defendants, specifically settled parties, is the most efficient way to
address Article 16 issues at trial. See Gallen v. Aerco International, Inc, et al., Index No.
190343/2015 (Oct. 12, 2017). A similar position on the admissibility of Article 16 deposition
testimony and interrogatory responses was reached by the Hon. Lucy Billings, J.S.C. in a
decision pertaining to two New York City Asbestos Litigation cases: Deane v. John Crane Inc.,
Index No. 190284/2015 (Sept. 29, 2017) and Figueroa v. John Crane Inc., Index No.
190101/2017 (Sept. 29, 2017). The jury here will be provided with a better understanding and
more accurate depiction of Plaintiffs true asbestos exposures, both in quantity and quality, rather
than those exposures that Plaintiff's counsel chooses to emphasize at trial with the discoverymaterials admitted. Most importantly, these materials are relevant to determining which
products, if any, caused PlaintifFs disease. GEI will be prejudiced if Plaintiff is able to ignore
Hon. Richard T. Aulisi
Kathryn Mohl: Defendant GEI's motions in limine
July 27, 2018
Page 12
and suppress evidence which, by their acceptance of the settlement, demonstrates that an entitywas responsible for harms suffered by the Plaintiff.
GEI also asserts that in an instance in which Plaintiff has identified a discovery response,
transcript, or other document of a fault sharer in his/her pretrial disclosures, then there can be no
later complaint that the discovery is unreliable. In Bigelow v. AC and S. Inc.. 196 A.D.2d 436
(lst Dept 1993), the Court rejected the use of discovery of settled parties, but permitted the use
of a transcript because Plaintiff had identified it in his discovery response. As such, this court
should allow admission of deposition transcripts and interrogatories of all article 16 fault sharers.
Further, should GEI be found liable by the jury after the trial, the jury should be allowed
to consider the evidence that Plaintiff has presented with regard to absent defendants to whose
products plaintiff was exposed. See Marsala v. Weinraub, 208 A.D.2d 689, 697 (2nd Dept 1994)("("Once there is a factual finding that more than one jointly liable tortfeasor has culpability, the
parties asserting several liability status must prove that their proportionate share of responsibilityis 50% or less. In meeting this burden, they may properly rely on evidence offered by the
plaintiff, by a defendant, or by other parties in the action.") (Ritter, J.S.C., concurring); see also
Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the
Courts of the State of New York, at p. 47 (January 2003) (agreeing with the concurrence opinion
of Justice Ritter in Marsala with the Committee proposing that "a defendant seeking benefits of
Article 16 should be entitled to rely upon the factual claims pleaded and evidence adduced by the
other parties (including the plaintiff) in those instances in which the defendant chose not to
advance such further claims or proof.") GEI should not be required to put on evidence
potentially adverse to its position on issues, such as state of the art and causation, and thus
undermine its own defense.
Defendant GEI reserves the right to move for other in limine relief by oral application
before and during this trial. GEI additionally reserves the right to join in any motion in limine
filed by a co-defendant.
Respectfully submitted,
Vincent A. Errante, Jr., Esq.
Eric Statman, Esq.
Natalie A. Powers, Esq.
Megan R. McGovern, Esq.
Attorneys for Defendant
Gould Electronics Inc.
cc: Weitz & Luxenberg, P.C. (via first class U.S. mail & NYSCEF)
All Remaining Defense Counsel (via NYSCEF)