Opinion
Index 2015EF492
10-17-2016
DIANE R. JACKSON, as Administratrix for the Estate of JOHN M. JACKSON, and DIANE JACKSON, Individually Plaintiffs, v. 84 LUMBER COMPANY, et al. Defendants. RJI No. 33-15-0949
WEITZ & LUXENBERG, PC Chris Romanelli, Esq., of counsel Attorneys for Plaintiff K&L GATES. LLP Nicole M. Kozin, Esq., of counsel Attorneys for Defendant Crane co. BARRY McTIERNAN & MOORE Suzanne M. Halbardier, Esq., of counsel Attorneys for Defendant Azrock Industries, Domco Products Texas, Inc. McGIVNEY & KLUGER, P.C. Eric Gernant, Esq., of counsel Attorneys for Defendant The Fairbanks Co. DARGER ERRANTE YAVITZ & BLAU, LLP Sandra K. Steinman, Esq., of counsel Attorneys for Defendant Union Carbide Corporation
Unpublished Opinion
At a Term of the Supreme Court of the State of New York, held for the County of Onondaga at Lowville, New York on the 11 th day of October, 2016.
WEITZ & LUXENBERG, PC Chris Romanelli, Esq., of counsel Attorneys for Plaintiff
K&L GATES. LLP Nicole M. Kozin, Esq., of counsel Attorneys for Defendant Crane co.
BARRY McTIERNAN & MOORE Suzanne M. Halbardier, Esq., of counsel Attorneys for Defendant Azrock Industries, Domco Products Texas, Inc.
McGIVNEY & KLUGER, P.C. Eric Gernant, Esq., of counsel Attorneys for Defendant The Fairbanks Co.
DARGER ERRANTE YAVITZ & BLAU, LLP Sandra K. Steinman, Esq., of counsel Attorneys for Defendant Union Carbide Corporation
PRESENT: HON. CHARLES C. MERRELL Justice of the Supreme Court
DECISION AND ORDER
Charles C. Merrell, Judge
Before the Court are a number of motions in limine which are considered herein. These anticipatory rulings are preliminary and advisory and remain subject to appropriate objections made at trial (Cotgreave v. Public Administrator of Imperial County, 91 A.D.2d 600 [2nd Dept. 1982]).
Preclusion of Plaintiff's State of the Art Witnesses (Castleman, Rosner and Markowitz) and Related Evidence, (Union Carbide, Crane, Domco, Fairbanks)
Defendants move to preclude the testimony of Plaintiff's "state-of-the-art" expert witnesses generally because (1) the testimony is speculative and without foundation, (2) the documents collected by the witnesses are inadmissible hearsay, (3) the expected testimony does not require expertise and intrudes upon the province of the jury, and (4) the expected testimony is more prejudicial than probative.
This Court has permitted these state of the art witnesses to testify in prior cases, and continues to hold that "state-of-the-art" testimony is appropriate and admissible where an adequate foundation is established. The testimony is limited testimony regarding the availability of knowledge of the dangers of asbestos at various points in time. The testimony, is relevant, does not usurp the province of the jury, is not inadmissible hearsay, and is not unduly prejudicial.
The motion to preclude state of the art evidence such as trade association documents, catalogs, medical articles, etc. is denied without prejudice to object at the time it may be offered.
Preclude Evidence of Corporate Structure, Affiliated Companies, (Union Carbide)
Granted insofar as this evidence may be offered on the issues of relative culpability, state of the art proof, and punitive damages.
Exclude References at Trial to Industrial or Chemical Accidents, (Union Carbide) Denied as premature. The Court will reconsider these references if raised at trial.
Speculative Evidence of Fiber Supply, (Union Carbide)
Denied as the motion is a summary judgment motion couched as a motion in limine.
Health Conditions or Medical Records of Union Carbide King City Asbestos Workers
Reserved. Plaintiff has represented that this issue will not be raised in her direct case at the present time.
Regulatory Materials / Public Health Pronouncements ("No Safe Level"). (Union Carbide, Crane)
Defendant's general motion to preclude regulatory materials and public health pronouncements regarding asbestos is denied as overly broad more properly an evidentiary issue for trial. The Court will consider the admissibility of particular materials as they are offered at trial.
Evidence by the Mellon Institute, (Union Carbide)
Union Carbide's motion to preclude evidence regarding the Mellon Studies is denied. The studies are facially relevant and material to state-of-the-art issues raised by Plaintiff. The Court finds they are not unduly prejudicial, that the subject matter of the studies may not have involved mesothelioma does not render them inadmissible. The issues raised by Defendant can be addressed in the testimony and, if necessary, by a limiting instruction.
Working conditions at Union Carbide facilities may be relevant and material to state-of-the-art and notice issues, and issues of recklessness. Defendant's motion to preclude such evidence at this time is denied, without prejudice to renew any such objection at trial.
Testimony of C. William Lehnert, (Union Carbide)
Union Carbide's motion to preclude Plaintiffs use of a deposition of C. William Lehnert taken October 3, 2001 and October 13, 2003 is denied. Use of such depositions at trial by Plaintiff is permitted by CPLR 3117 and encouraged by the 5thDistrict Case Management Order.
Mr. Lehnert was produced by Georgia Pacific with respect to all cases filed in Madision County, Illinois, to testify as to topics which included the use of Union Carbide SG210 asbestos in Georgia Pacific products. Union Carbide counsel appeared and cross-examined Mr. Lehnert on those issues.
Mr. Lehnert's testimony was apparently based in part on notes he prepared as a result of his review of Georgia Pacific formulas and other documents he had assembled and stored at home. Union Carbide now claims, based on a later 2007 deposition of Mr. Lehnert, that his testimony in 2001 and 2003 may not have been accurate or comprehensive as to Georgia Pacific's use of Union Carbide asbestos products, and this should be precluded as not being the "best evidence" of Georgia Pacific's product formulations or is otherwise unreliable as a matter of law.
At the time of Mr. Lehnert's testimony Union Carbide made no such specific objections and made no attempt to adjourn the deposition to obtain the documents upon which Mr. Lehnert relied. Any inaccuracies in Mr. Lehnert's testimony are in the record and could, in theory, be corrected by Mr. Lehnert or another witness from Union Carbide or Georgia Pacific. The jury is certainly capable of resolving these issues.
Recklessness. Punitive Damages. Bifurcation. (Union Carbide, Fairbanks, Crane)
Defendants' motion to preclude evidence of recklessness and punitive damages is denied in that this is not the proper subject of a motion in limine, in essence, a thinly veiled summary judgment motion on the sufficiency rather than admissibility of evidence (see Marshall v. 130 North Bedford Road Mount Kisco Corp., 277 A.D.2d 432, [2nd Dept. 2000]; Downtown Art Co. v. Zimmerman, 232 A.D.2d 270, [1stDept. 1996]).
Defendants seek to preclude evidence as to their wealth, finances and gross revenues. Such evidence may be admissible to the issue of Defendants' ability to warn, test or study the effects of asbestos exposure through use of its products. The Court reserves as to admissibility on these particular issues, should they arise at trial.
Defendants' finances/wealth cannot otherwise be raised in the trial of this action. However, in the event that the fact finder concludes that Defendants' conduct rises to a level of wanton or reckless conduct necessary to sustain a cause of action for punitive damages, Defendants' financial condition would be relevant in assessing punitive damages. In that event, the amount of punitive damages will be separately determined after a verdict in the main action (see, Prior v. Brown Transport Corp., 103 A.D.2d 1042, [4th Dept. 1984]; Rupert v. Sellers, 48 A.D.2d 265 [4th Dept. 1975]; Comment, New York Pattern Jury Instructions 2:278). The motion is granted to the extent of bifurcating the punitive damages phase, if necessary.
Exclusion of Plaintiffs Testimony as to Specific Causation "Each and Every Exposure". "Substantial Factor". Frye Hearing. (Union Carbide, Fairbanks, Domco, Crane)
Defendants seek to preclude Plaintiff's experts from testifying as to specific causation; that Decedent's cumulative exposure to asbestos from Defendants' products was a substantial fact in causing his mesothelioma.
Defendants argue that causation opinions of Plaintiffs experts are inadmissible and should be stricken because they lack sufficient foundation and were based on invalid assumptions. Defendants further contend that the expert opinions are not based on any relevant "scientific expression" of Mr. Jackson's exposure to asbestos from Defendants' products, as required by Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 449 (2006). In that regard, Defendants argue that expert testimony that Mr. Jackson's cumulative exposure to Defendants' products were substantial contributing factors in causing Mr. Jackson's mesothelioma, or that "each and every exposure" is capable of causing Mr. Jackson's mesothelioma should be stricken as a matter of law and science.
As noted by the Court of Appeals in Parker, "an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" Id. at 448.
The Court in Parker held that precise qualifications of exposure levels or use of the dose response relationship is not always necessary, provided whatever methods the expert uses are generally accepted in the scientific community. "So long as plaintiff's experts have provided a scientific expression of plaintiffs exposure levels, they will have laid an adequate foundation for their opinions on specific causation", (Nonnon v. City of New York, 88 A.D.3d 384, 396 [3rd Dept. 2011]).
As for general causation, the link between asbestos and disease is well documented, and it is generally accepted that inhalation of "raw" asbestos fibers can contribute to an individual risk of developing mesothelioma. See Wiegman v. AC&S. Inc., 24 A.D.3d 375 [1st Dept. 2006], ("The link between asbestos and disease is well-documented, and the parties merely differed as to whether the asbestos contained in this particular product could be released in respirable form so as to cause disease. Since the parties agreed over causation, no novel scientific technique or application of science was at issue, and a Frye hearing was not warranted").
At this juncture Defendants' motion to preclude and for a Frye hearing as the issue of specific causation is generally one for the jury, (Berqer v. Amchem Products, 13 Misc.3d 335; Weiaman v. A.C. & S.. Inc., supra 24 A.D.3d 375; Lustenrina v. A.C. & S.. Inc., 13 A.D.3d 69 [1st Dept. 2004]).
Trade Organization Evidence. (Domco)
Decision reserved, subject to offer of proof concerning admissibility. See George v. Celotex Corp., 914 F.2d 26, 29-31 (2nd Cir. 1990).
References to Other Pending Actions. (Fairbanks, Domco)
Reserve. Subject to the following conditions: Plaintiffs may only mention similar, pending or prior actions (1) publishing prior corporate testimony to the jury via videotape or transcript; (2) reading answers to interrogatories from other proceedings, and (3) cross-examining witnesses to establish the frequency of testimony for the Defendant, to show bias and interest. The Court will consider other offers of proof and objections on a case by case basis.
Expert Reliance on Articles that Do Not Deal With Plaintiff's Disease, (Domco)
Denied. Subject to Plaintiff laying a foundation at trial.
Equitable Shares Attributable to Bankrupt Entity, (Domco)
Denied without prejudice as premature.
Regardless of Who Pays, (Fairbanks)
Granted to the extent that direct or indirect references to insurance are precluded.
Undisclosed Witnesses. (Fairbanks)
Denied. The Court will rule at trial if the issue arises.
Disparaging References, (Fairbanks)
Denied as overly broad.
Improper Comparisons, (Fairbanks)
Denied as overly broad.
Inflammatory Photographs and Videotapes, (Fairbanks)
Denied. The Court will consider admissibility when offered. All such photographs or videotapes sought to be used in opening must be presented to opposing counsel twenty-four (24) hours prior to opening statements, or as otherwise agreed by counsel.
Subsequent Remedial Measures, (Fairbanks)
Denied. The Court will consider admissibility when/if offered.
Case Reports, (Domco, 84 Lumber, Fairbanks) Denied.
Expert Testimony of Conspiracy Among Asbestos Manufacturers and Suppliers, (Domco)
Denied as premature. The Court will consider specific objections at trial.
References to Duty and Provide Warnings, (Fairbanks)
Denied. Not the proper subject of a motion in limine.
Documents From Other Companies, (Fairbanks)
Denied. Objections will be considered if such evidence is offered.
Evidence Including Events and Products Manufactured or Sold After Decedent's Alleged Last Exposure to Asbestos ("Evidence Post-Dating Exposure"), (Fairbanks, Crane, Union Carbide)
Reserve. The Court will determine on the admissibility of documents or other evidence on a document by document basis. However, counsel for the Plaintiff is precluded from mentioning any knowledge or conduct post dating Plaintiffs alleged exposure in his/her opening and prior to an offer of proof concerning a document or other evidence (Cepeda v. AC&S, 15 Misc.3d 1111 (A); In re Eighth Judicial District Asbestos Litigation, 152 Misc.2d 338, 342 [ S.Ct. Erie Co. 1991]).
Other Products Manufactured By Defendant. (Fairbanks, Crane)
Denied. Objections will be considered if such evidence is offered.
Alleged Ban on Asbestos. (Fairbanks)
Denied; however, Plaintiff shall not use the phrase "asbestos ban" or "ban on asbestos" to describe EPA findings.
"Profits over People". (Fairbanks)
Denied. Subject to proof at trial.
Statements Regarding Absent Defendants. (Fairbanks)
Granted as to statements regarding "failure to pay fair share". If necessary, the Court will instruct the jury as to making impermissible inferences from the absence of other Defendants.
Bankruptcy Proofs of Claim Forms. (Fairbanks)
Reserve.
Admission of Plaintiffs Interrogatories and Deposition Transcripts of Co-Defendants No Longer in the Case. (Fairbanks)
Reserve.
William Longo/Materials Analytic Services, (Fairbanks)
Denied as moot based on Plaintiffs representations that such evidence will not be offered.
Adopting All Co-Defendants' Motions In Limine. (Union Carbide)
Denied. Blanket references to and reliance on motions made by co-defendants who have settled, not addressed in this Decision and Order, are deemed withdrawn and will not be considered by the Court.
The foregoing constitutes the Decision and Orderaf the Court. So Ordered.