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February 27, 2019

VIA ELECTRONIC FILING

The Honorable Justice Martin Shulman, J.S.C.

Supreme Court of the State of New York

60 Centre Street

New York, New York 10007

Re: Carol Leigh Szego, as Administratrix for the Estate of Richard Lefrak vs.

Aerco International Inc., et at

Supreme Court of the State of New York, County of New York

Index No.: 190033/2014

Dear Justice Shulman:

This firm represents Mole-Richardson Co.("Mole-Richardson"

or "Defendant") in the

above-captioned matter. Mole-Richardson respectfully serves this reply to plaintiff s oppositions

to our various motions, in limine, on the following issues.

Mole-Richardson states that plaintiff did not number her motions in opposition to

correspond with Mole-Richardson's. Additionally, plaintiff's motions in opposition were not

necessarily in the same sequence as Mole-Richardson's numbered motions in limine, and the

oppositions did not necessarily have corresponding titles. Mole-Richardson has endeavored to

provide replies to each of plaintiff s inations in opposinons, but respectfully reserves it right to

provide further briefing, as applicable.

1. Motion In Limine to Preclude Monona Rossol From Testifying as an Expert

Mole-Richardson's reply to plaintiff's oppacinanregarding preclusion of Monona Rossol

from testifying as an expert has been submitted separately.

2. Motion in Limine To Preclude the Testimony of Valerie Lefrak

Plaintiff's oppose this motion stating that Mole-Richardson moves to preclude Mrs.

Lefrak due to the"purported"

late fact witness notification. There is nothing purported about the

BUFFALO, NY FIDRHAM PARK, NJ FT LAUDERDALE, FL HARTFORD, CT Los ANGELES, CA

(716) 626-3583 (973) 822-1110 (954) 848-3681 (860) 404-3000 (213) 995-2001

NEW YORK, NY PHILADELPHIA, PA SAINT LOUIS, MO SPARTA, NJ SYRACUSE, NY WILMINGTON, DE

(212) 509-3456 (215) 557-1990 (314) 571-4332 (973) 726-4958 (315) 473-9648 (302) 656-1200

{N0838617-1}

{N0838617-1} 2

lateness of the disclosure. It is a fact that plaintiff did not disclose Mrs. Lefrak as a witness until

February 21, 2019 despite a trial date of February 19, 2019. It is also a fact that the disclosure

occurred five years into the litigation, four and one-half years past the deadline to disclose fact

witness, four years and three months past plaintiff’s request for a trial assignment and days into

jury selection. See Exhibits E and G.1

In plaintiff’s opposition, they provide no justification or excuse for their failure to timely

amend their disclosures. Rather, they attempt to turn the mirror on Mole-Richardson, noting that

we were “on notice” of the existence of decedent’s wife. This attempt at deflection is

disingenuous and beside the point. Mrs. Lefrak is a non-party, not a co-worker during the

relevant period,2 and she has no viable loss of consortium claim because she married decedent

after the exposure period. She is not even the executor of the estate. “Notice” of a person who

has no relationship to any claim is irrelevant. In any event, plaintiff must disclose her own fact

witnesses. Having abjectly failed to do so – she cannot hide behind the idea that defendant

should have divined, somehow, that she is a witness for the plaintiff.

The cases cited by plaintiff are off the mark. In Guillen v. N.Y.C. Transit Auth., 596

N.Y.S.2d 88 (App. Div. 1993), the late-disclosed witnesses, Messrs. Rosario and Galvan were

named defendants in the case concerning a motor vehicle accident. Id. at 89, 90. Mr. Rosario was

the driver at the time of the incident and Mr. Galvan was the owner of the vehicle; both their

names were on the police report. Id. Similarly, in Breen v. Laric Entm't Corp., 2 A.D.3d 298, the

Appellate Division, First Department reversed the decision of the trial court, which had

precluded plaintiff from calling Dr. Alicea as a witness because they had failed to serve a

3101(d) statement (and dismissed the case because there was no physician scheduled to testify.

Id. at 299. In reversing, the First Department noted that the intended medical expert witness was

a treating medical witness whose records and report had been fully disclosed pursuant to CPLR

3121 and 22 NYCRR 201.17; thus, defendants had “sufficient notice of the proposed testimony

to negate any claim of surprise or prejudice.” Id. Guillen and Breen are vastly different in that

there was already information in the record about what the witnesses knew – produced by the

party proponent. That is not the case here. Plaintiff has produced no information regarding this

purported witness.

Contrary to plaintiff’s suggestion, preclusion of a late-disclosed witness is appropriate

and warranted. In Caraballo v. Rivas-Barzola, 92 A.D.3d 532, 532, 2012 N.Y. App. Div. 1st

Dept., the Appellate Division, First Department held, “[t]he motion court properly precluded the

evidence of plaintiff's eyewitness to the accident because plaintiff failed to disclose in discovery

the eyewitness's identity (see e.g. Ravagnan v One Ninety Realty Co., 64 AD3d 481, 883 NYS2d

490 [2009]). Similarly, in Robinson v. New York City Housing Authority, 583 N.Y.S.2d 381, 382

(1992, N.Y. App. Div. 1st Dep't), the First Department held, “[t]he IAS court did not abuse its

discretion in precluding the testimony of the plaintiff's notice witnesses. At the preliminary

conference, plaintiff stated she had no notice witnesses, and it was not until more than a year

after a preliminary conference order directing plaintiff to disclose the identities of her witnesses,

after she had filed a note of issue, and then only in opposition to a motion for summary

1 In the interest of efficiency, we refer to the exhibits included in Mole-Richardson’s underlying omnibus motion in

limine filed with this court on February 22, 2019 at NYSEF Docket Nos. 523 through 534, inclusive. 2 Plaintiff talked about a “Valerie Russell” as an “artist” he worked with, but after the alleged exposure period. See

Exhibit K, pages 115-118.

{N0838617-1} 3

judgment, did plaintiff finally disclose that her two sons were her notice witnesses.”

Additionally, in Crespo v. Metro. Tranp. Auth., 15 Misc. 3d 1117(A) (Bronx Cnt’y Sup. Ct.

April 2, 2007) the court precluded a witness plaintiff attempted to disclose after the note of issue

and certificate of readiness were filed and after the case placed on trial calendar.

The CPLR directs that there shall be “full disclosure of all evidence material and

necessary in the prosecution or defense of an action.” CPLR §3101(a). “This statute embodies

the policy determination that liberal discovery encourages fair and effective resolution of

disputes on the merits, minimizing the possibility for ambush and unfair surprise.” Spectrum Sys.

Int’l Corp. v. Chem. Bank, 78 NY 2d 371 (1991) (emphasis added). In the case of Bermejo v.

N.Y.C. Health & Hosps. Corp., 135 AD 3d 116, 147 (2d Dept 2015), in affirming the trial court’s

decision to grant a mistrial, the Appellate Division noted, “the failure of the plaintiff’s attorneys

to disclose to defense counsel the [previously undisclosed] videotape…violated CPLR 3101. It

also violated the spirit of New York’s open disclosure policy which, to a large extent, ‘was

intended to mark an end to the presentation of presentation of totally unexpected evidence and to

substitute honesty and forthrightness for gamesmanship.’”

In accordance with the above, and the reasons discussed more fully in the underlying

motion, Mole-Richardson respectfully requests Mrs. Lefrak be precluded from testifying in this

action.

3. Motion in Limine to Preclude Plaintiff’s Experts From Offering Causation

Testimony at Trial, or Alternatively, to Preclude Plaintiff’s Experts from

Presenting Any Evidence or Testimony that “Each and Every Exposure”

Contributed to Plaintiff’s Disease.

Plaintiff’s Omnibus Opposition indicates that a separate opposition to this motion in limine

was filed separately. No such opposition has been filed as of yet, and we understand it will be

filed on February 27, 2019, the day of oral arguments. Mole-Richardson requests additional time

to brief and argue any opposition.

4. Motion in Limine to Require Parker/Frye Hearings Prior to Admission of Expert

Testimony.

Plaintiff’s Omnibus Opposition indicates that a separate opposition to this motion in limine

was filed separately. No such opposition has been filed as of yet, and we understand it will be

filed on February 27, 2019, the day of oral arguments. Mole-Richardson requests additional time

to brief and argue any opposition.

{N0838617-1} 4

5. Motion in Limine to Preclude Evidence at Trial from Plaintiffs and Other Lay

Witnesses Regarding Alleged Asbestos Content of Parts Associated With Mole-

Richardson Lighting.

Plaintiff’s opposition to Mole-Richardson’s motion misstates the point. The motion to

preclude lay witnesses and/or the plaintiff from offering testimony regarding asbestos content

of a Mole-Richardson product is based on the fact that they are not qualified. Decedent was not

a mineralogist, or any other type of expert trained in the identification of asbestos, and he never

had our product tested. Identification of asbestos was not in the scope of his employment.

Decedent did not provide any testimony supportive of the position that he was in any was

qualified to identify asbestos. Accordingly, his testimony regarding the asbestos content of any

Mole-Richardson product should be precluded because it is based on speculation or hearsay.

6. Motion In Limine to Preclude Any Attorney, Fact Witness or Expert Witness From

Imputing the Actions or Knowledge of a Trade Association to Mole-Richardson

Unless Plaintiff Proves That Mole-Richardson Had Actual Knowledge And

Approved Such Actions.

Mole-Richardson’s involvement in any trade organization does not and cannot put

them on notice or make them aware of what that separate organization may have been aware

of. Therefore, evidence of defendant’s participation or membership in an organization cannot

be used to establish notice of any potential hazards associated with their equipment. Mole-

Richardson repeats and reiterates the arguments in its underlying motion, which plaintiff has

failed to adequately address or overcome.

7. Motion in Limine to Preclude Plaintiffs From Referencing The Wealth, Financial

Condition or Liability Insurance of Mole-Richardson.

Plaintiff has provided no objection to this motion, and Mole-Richardson respectfully

requests it be granted.

8. Motion in Limine To Preclude Plaintiffs’ Statements On A Purported “Lack of

Personal Knowledge” Pertaining To The Mole-Richardson Corporate

Representative Witness.

Mole-Richardson seeks to preclude plaintiff from mentioning, referencing, or

introducing evidence regarding any purported “lack of personal knowledge” on the part of

the corporate representative witness for Mole-Richardson. Plaintiff opposes and cites to an

Eleventh Circuit case regarding a corporate representative had no personal knowledge of the

facts and then defendant only provided selective information favorable to their position.

Sciarretta v. Lincoln National Life Ins., 778 F.3d 1205 (11th Cir. 2015). That is wholly

irrelevant here. Here, Mole-Richardson’s representative Mr. Parker has been provided with

all available discovery material by Mole-Richardson, and has been questioned regarding

discovery by various plaintiffs at depositions and trial. As a corporate representative, he is

deemed to have personal knowledge of all of the matters on which he is requested or required

to testify because of the legal fiction that a corporation is a person, but is only able to testify

{N0838617-1} 5

through individuals. Accordingly, the collective knowledge of the corporation must be

presented through its authorized agents; in this case, a designated corporate representative.

Plaintiff may be able to cross examine him with documents which in their view contradicts his

statements, but he is deemed to have the personal knowledge required and plaintiff should be

precluded from arguing otherwise.

9. Motion In Limine to Preclude Plaintiff from Introducing Evidence Against Mole-Richardson Regarding Asbestos After the Dates of Plaintiff’s Alleged Exposure.

Plaintiff’s efforts to admit evidence post-dating plaintiff’s years of exposure is a

concerning prospect, particularly in asbestos cases that are critically dependent on state of the art

evidence that demonstrate what a particular company knew or should have known about the

hazards associated with the use of its products before a given exposure occurred or it

manufactured that product. The introduction of evidence beyond the date of plaintiff’s claimed

exposure, or date of manufacture, here would only confuse a jury and cause extreme prejudice to

defendant Mole Richardson during trial. Further, plaintiff’s argument that post exposure

evidence would have some probative as to Mole Richardson’s reckless conduct is nonsensical.

Mole Richardson would have had to act recklessly before manufacturing the product at issue in

order to be held reckless for Mr. LeFrak’s claimed injury. It is well known that knowledge

regarding the hazards associated with some asbestos products developed over time. To hold

Mole Richardson to a standard of knowledge that was not in existence at the time it

manufactured a given product would be fundamentally unfair and irreparably prejudicial. A jury

should not be provided with irrelevant state of the art testimony that post-dates the exposure

period or date of manufacture of a given product to determine if Mole Richardson knew or

should have known of the hazards of asbestos or acted recklessly prior to a product’s date of

manufacture or the date by when plaintiff claims to have encounter that product. Any

information available to Mole-Richardson or in the public realm, including any documents in

Mole-Richardson’s possession or other evidence, that relates to a time period after the products

at issue were manufactured or plaintiff encountered them is wholly irrelevant to plaintiff’s claims

in this case and would cause irreparable prejudice to Mole-Richardson if they were admitted

during trial. This Court should preclude such evidence from introduction during trial.

10. Motion in Limine To Preclude Any Attorney, Fact Witness, Or Expert Witness

From Introducing Or Referencing Certain Medical And Scientific Articles,

Treatises, Periodicals Or Pamphlets At The Time Of Trial.

This Court should preclude evidence referencing, mentioning and introducing evidence

of medical and scientific articles as introduction of these studies is impermissible under New

York law. The medical and scientific articles, treatises or periodicals may not be proffered as

substantive evidence of the facts contained therein – they are inadmissible hearsay. Plaintiff must

be precluded from reading them into evidence or seeking to establish that they contain truthful or

accurate information. Because plaintiff may not use the publications to prove the facts contained

therein, plaintiff equally may not use documents to it to support the proposition that the facts

contained therein are facts known to Mole-Richardson or should have been known to Mole-

Richardson. Since they cannot establish actual hazards associated with asbestos they cannot

serve to put Mole-Richardson, historically, on constructive notice that asbestos was potentially

hazardous. For these reasons the medical and scientific article must be precluded.

{N0838617-1} 6

11. Motion In Limine for Mole-Richardson to Admit Plaintiffs Proof of Claim Forms.

Plaintiff’s argument in opposition to the admissibility of proof of claim forms as a

generalized rule completely disregards the analysis to which they cite offered by Justices in the

NYCAL that have ruled on this issue. It is clear from prior rulings that proof of claim forms can

be party admissions and therefore properly admissible as part of defendant’s Article 16 case,

under the right circumstances. Based on prior NCYAL rulings, which plaintiff cites in

opposition, the question of admissibility turns on the Court’s determination of whether the

statements made to submit the claim to a bankruptcy trusts was offered by the plaintiff, or upon

information and belief as counsel for plaintiff in a particular case (lacking any evidence offered

to support the claim from plaintiff directly). This is an important distinction, as any claim

submitted to a trust that relies on plaintiff’s own testimony or statement should be deemed a

party admission, while a claim asserted by plaintiff’s counsel based on their own information and

institutional knowledge could be treated differently. In this case, Mr. LeFrak was questioned and

provided testimony regarding the exposures that gave rise to his claims against bankruptcy

trusts. The bankruptcy trust claims at issue in this case were filed as a direct result of his own

assertions.

The question of admissibility of bankruptcy claim forms should be determined after a

review of the facts and circumstances supporting each specific claim, in each case. A bright line

rule regarding “all proof of claims” is not supported in the law as there, simply is no blanket rule

against admissibility. This Court should determine the admissibility of each bankruptcy claim

submitted on Mr. LeFrak’s behalf to determine if the conditions surrounding that specific claim

raise it to the level of a party admission. As expected, plaintiff’s opposition fails to explain why

prior rulings by this Court have any precedent to automatically deem all 31 of Mr. LeFrak’s

proof of claim forms inadmissible in this case; a review of the reasoning offered in those

decisions is quite contrary to such a position.

As to Your Honor’s ruling in Dietz, we note that the admission of plaintiff’s proof of

claim forms here will not provide Mole Richardson with a free pass in meeting its obligations to

prove its case against each of the bankrupt entities subject to a claim. None of the claim forms

provide information about the entities’ knowledge regarding the hazards of asbestos, asbestos

content in the products that are at issue for that entity, or warnings that may have been issued

regarding the hazards of asbestos from working with their products. The claim forms simply

establish that plaintiff himself believes he was exposed to asbestos from these products, a

premise upon which Mole Richardson must still meet its burden to prove liability against each of

these entities as part of its Article 16 case. Still, plaintiff’s assertion that he was exposed to these

bankrupt entities’ products is a critical component of Mole Richardson’s Article 16 case and of a

jury’s ability to adequately discern the facts and reach a verdict.

Admission of these claim forms does not relieve defendant Mole Richardson of its

burden to prove its case against these entities under CPLR Article 16. We further note that Your

Honor’s comments and rulings on this issue as expressed in Vega is instructive as to when claim

forms are admissible. Your Honor’s discussion addressing the mode and form by which the

information is being communicated to assert the claim to the trust speaks to the circumstances

under which the claim forms may be admissible as much as when it they may not be. As

{N0838617-1} 7

plaintiff’s counsel references in opposition, Justice Kern also spoke to this point when ruling

during the Dul trial that the claim forms in that case were inadmissible. Her reasoning supports

why the claim forms submitted on behalf of LeFrak here are admissible. Based on Your Honor’s

and Justice Kern’s rulings, the question of admissibility of these forms rests on whether there

was some supporting statement or testimony by plaintiff used to assert the claim. In Dul, the

claim forms lacked supporting testimony or an affidavit from plaintiff to assert the claims.

Unlike Dul, plaintiff’s counsel submitted over 100 of pages of Mr. LeFrak’s sworn testimony to

assert the claims against bankruptcy trusts in this case. Mr. LeFrak’s claim forms under these

circumstances are therefore party admissions. Given Your Honor’s prior rulings on this issue,

and Justice Kern’s analysis offered in Dul, Mr. LeFrak’s proof of claim forms should be

admissible during trial of this case. The jury should not be deprived of hearing about all of the

products or entities that Mr. LeFrak himself asserts were a source of his asbestos exposure and

resulting disease. Without this information the jury will not have a clear picture of the exposures

at issue and cannot be asked to make a full and fair determination of the facts surrounding

plaintiff’s claims.

Plaintiff’s arguments regarding confidentiality are moot, as the claim forms have already

been publicized to parties in this case. In addition, the idea that Your Honor would deem all

bankruptcy claim forms inadmissible – impeding defendants’ due process rights and available

defenses in New York – to avoid “mini trials” regarding the admissibility of bankruptcy claim

forms is outrageous. Despite that it would not be a basis to preclude consideration of these

documents, there would be no significant delay, or impact on the length of a trial, as a result of

the Court’s review and analysis of the admissibility of Mr. LeFrak’s proof of claim forms in this

case.

12. Motion In Limine To Preclude Plaintiffs’ Counsel From Arguing To The Jury That

Plaintiff Is Entitled To An “Excessive” Pain And Suffering Damages Award.

Plaintiff has provided no objection to this motion, and Mole-Richardson respectfully

requests it be granted.

13. Motion In Limine To Preclude Plaintiffs Counsel From Mentioning Any Dollar Award To The Jury During Voir Dire And Opening Statements.

Plaintiff’s opposition to this portion of the omnibus motion states, “plaintiff’s counsel has no intention of referencing specific dollar amounts to the jury during voir dire and opening statements, thereby rendering defendant’s motion in limine effectively moot.” Plaintiff’s opposition then goes on to qualify this and state “in case there is a lapse…it is best handled on a case-by-case basis.”

The parties appear to be united on the issue of preclusion of mentioning dollar amounts during voir dire or opening statements. Mole-Richardson notes, however, that “in case there is a lapse” it reserves its right to move for a mistrial or other relief, as applicable.

14. Motion In Limine To Compel Plaintiff To Disclose The Amount And Terms Of

Any Settlements, Whether Written Or Oral, And To Require Plaintiff To Produce

Any Releases, Settlement Agreements, And/Or Written Agreements With Each

And Every Defendant And Entity With Whom Plaintiff Has Settled To Date.

{N0838617-1} 8

Mole Richardson reiterates the case law an authority upon which it relied in its motion in

limine on this issue. Plaintiff should be compelled to disclose information regarding settlements

in this case to permit Mole Richardson to adequately assess its trial risk and the set offs available

to it in this case. Plaintiff’s unilateral agreements with other entities and non-parties to keep

information confidential can not operate to subvert New York law and relieve plaintiff of the

obligation to produce discoverable information to which Mole Richardson is entitled. In the

event that this Court determines confidentiality of settlement information is warranted, Mole

Richardson is open to discussing the possibility of executing a confidentiality agreement prior to

receipt of information concerning plaintiff’s settlements.

15. Motion In Limine To Admit Deposition Transcripts and Interrogatories of All

Article 16 Fault Sharers.

Plaintiff’s opposition fails to address the clear intent of the CMO and CPLR, bastardizes

the purpose of NYCAL discovery rules, and seeks to weaponize the NYCAL CMO against New

York law. It is imperative that one consider the CPLR in the context of centralized asbestos

litigation and pursuant to the governing CMO in NYCAL cases. To read the CPLR without such

consideration disregards the most critical purposes of the NYCAL CMO, which are to streamline

discovery and ensure progress of cases toward trial without undue burden to parties in discovery

and preserving due process rights. Given that the CMO limits discovery in these cases,

specifically regarding depositions of defendants’ corporate witnesses, prior testimony of

corporate witnesses must be admissible in every case venued in NYCAL. If prior testimony is

not admissible, the CMO operates to simply prevent the parties from conducting basic discovery

in each case by virtue of the discovery rules. Alternatively, if the CMO rule precluding

repetitive depositions of corporate witnesses did not exist, parties would depose the corporate

witnesses in each case to satisfy their burdens and discovery would extend endlessly and

unnecessarily. In many cases, this would result in the denial of living plaintiffs from participating

in their own trial; such a burdensome discovery process in cases involving repeat defendants

(sometimes over 100 defendants in a given case) will create a significant and unnecessary delay

in the progress of these cases toward trial. Given this, it makes sense in the NYCAL that parties

are limited to producing witnesses for deposition once and that no repetitive depositions of

corporate witnesses are permitted in this jurisdiction. Still, the consequence of this streamlined

discovery should not operate as a forfeiture of necessary discovery by defendants, or a waiver of

their entitled defenses under Article 16. Considering the purpose of the CMO’s limitation on

depositions of corporate witnesses and the reasoning behind its implementation, this Court

should not sanction plaintiff’s attempts to use the NYCAL CMO as a shield against defendants

available defenses. CPLR 3131 and 3117(a)(2) together provide for the circumstances under

which prior testimony of a non-party may be offered into evidence. These CPLR provisions

must be read and interpreted in the context of NYCAL, in order to be reasonably applicable to

the litigation of asbestos cases in this jurisdiction. The NYCAL’s efforts to streamline discovery

in cases to the benefit of plaintiffs should not prevent parties from their rights and defenses under

New York law. Based on the CMO, and reasonable interpretation of CPLR 3131 and 3117(a)(2),

the non-party testimony of relevant corporate witnesses must be admissible for Mole

Richardson’s use as part of Article 16 case.

16. Motion In Limine To Preclude Testimony From Plaintiffs’ State of the Art

{N0838617-1} 9

Witnesses.

Dr. Castleman should be precluded from testifying as a state-of-the-art witness during

trial. Dr. Castleman will offer opinions on the historical studies and available information about

potential asbestos hazards, but he does not have the medical training necessary to offer any

opinion on the content or substance of those studies. Dr. Castleman will testify how he went to

libraries in the 1980s to find what studies there were about asbestos-related diseases and will

give his opinion or interpretation of what these studies say. His role was to go to libraries and

search for articles related to asbestos, but he is unable to say when those libraries had those

studies and if they were available when Mole-Richardson made the products at issue. The fact

that some studies were found later cannot establish they would have been available to Mole-

Richardson in a way that would somehow made it knowable that the asbestos-containing

components they may have used was potentially hazardous.

Dr. Castleman “presumes” that articles prepared by niche researchers were publically

available, were true and scientifically accurate, or placed Mole-Richardson on notice, but there is

no basis for such a presumption. Contrary to plaintiff’s assertion, it is not our argument that only

physicians can say what information was publically available regarding asbestos, but that Dr.

Castleman is unable to say that the information he found was available in any meaningful

capacity before he began to look for it. He began looking for such material after the time period

at issue here. Plaintiff’s counsel will undoubtedly attempt to use this testimony to invade the

province of the jury and the Court by establishing the legal duties to be imposed on Mole-

Richardson and then having the SOA witness draw inferences from a vast library of irrelevant

and unauthenticated documents to prove that Mole-Richardson “knew” or “should have known”

about certain things, leading to additional duties.

Additionally, plaintiff’s seek to use Dr. Castleman for more than just to present what he

found in libraries, but to provide his interpretation of the medical studies themselves. As a

historian he is not qualified to opine on the content of the medical studies or the principles they

stand for because he lacks the requisite training and experience. His historical training does not

qualify him to testify about medicine or what those studies may have signify about causation or

potential health hazards such that Mole-Richardson would have been on notice of any potential

health hazards associated with their products. Given that the science disputes that their products

were potentially hazardous to this day, Dr. Castleman cannot offer testimony that the products

Mole-Richardson used posed any health hazard or that Mole-Richardson should have interpreted

any of the medical literature to suggest that these components could be a health hazard.

Dr. Castleman has done nothing more than what the jury itself can and must do - read and

evaluate documents and assess the testimony. Admitting his testimony would invade the special

province of the jury as the finder of fact and his testimony should be precluded.

17. Motion In Limine To Preclude Plaintiff From Admitting Case Reports And

References To Case Reports To Prove Causation.

Plaintiff’s opposition misunderstands the point. Plaintiff states, “defendant presumably

claims that only epidemiological studies can be used to determine an association between

{N0838617-1} 10

exposure and disease.” These words do not appear in Mole-Richardson’s motion in limine, and

plaintiff’s opposition, which derives from this mis-statement is therefore unclear. Mole-

Richardson repeats and reiterates its motion in limine to preclude case reports or “observational

studies” as proof of causation because they are not accepted in the scientific community as a

valid methodology. Pullman v. Silverman, 125 A.D.3d 562, 563 (1st Dep’t Feb. 26, 2015);

Heckstall v. Pincus, 19 A.D.3d 203, 205 (1st Dep’t 2005); Pauling v. Orentreich Med. Group,

787 N.Y.S.2d 331 (1st Dep’t 2005).

18. Motion In Limine to Preclude Regulatory and Consensus Statements.

This Court should preclude evidence referencing, mentioning and introducing evidence

of case reports, case report compilations, or expert opinions based on such reports to prove

causation, or other agency studies such as from the World Health Organization concerning

potential asbestos hazards. Introduction of these studies is impermissible under New York law.

Also called “observational studies,” case reports are not accepted in the scientific

community as a valid methodology and are incapable of establishing plaintiff’s burden on

causation. Case reports and notices by regulatory bodies, such as the World Health Organization,

have been rejected by courts and the scientific community as unreliable evidence because they

simply describe reported phenomena without comparison to the rate at which the phenomena

occur in the general population or in a defined control group; do not isolate and exclude

potentially alternative causes; and do not investigate or explain the mechanism of causation. A

study which purports to say that there is no safe level of asbestos, or have minimum thresholds

regarding levels of exposure, cannot establish any particular level of asbestos as capable of

causing disease, or that any alleged asbestos exposure actually caused the disease at issue.

Similarly, regulatory agencies are not required to support their findings with a high degree of

confidence or scientific certainty, and seek to warn of potential hazards where the science has not

yet established causation in order to be cautious and reduce risks. Ultimately, a regulatory

agency acts based on policies concerning potential risks and not by clear science on causation,

and so they err on the side of safety.

Additionally, Mole-Richardson’s involvement in any trade organization does not and

cannot put them on notice or make them aware of what that separate organization may have been

aware of. Therefore, evidence of defendant’s participation or membership in an organization

cannot be used to establish notice of any potential hazards associated with their equipment.

19. Motion In Limine to Preclude References to an “Asbestos Ban” or Referring to

Asbestos as a “Banned Substance” by the Environmental Protection Agency.

Plaintiff’s state they do not oppose the portion the motion with respect to using the words

“asbestos ban.” Mole-Richardson accordingly considers the matter settled.

20. Motion In Limine To Preclude Plaintiffs From Making Any Reference At Trial To

Plaintiffs As “Victim or Victims” Or An “Asbestos Victim."

{N0838617-1} 11

In their Opposition, Plaintiffs contend that Defendants “cited no authority” favoring

Mole-Richardson’s position that the term “asbestos victim” or any form or derivation thereof be

precluded from use by the Plaintiffs, their counsel or their witnesses. However, Mole-Richardson

provided a legal basis that establishes that conclusory terms are unfairly prejudicial, particularly

when used in the presence of a jury at trial.

It must be noted that the Courts have previously held that reference to a plaintiff as a

“victim” impermissibly insinuates to a jury that the plaintiff was “the victim of the injuries

resulting from acts committed by the defendant.” See, People v. Davis, 73 A.D.2d 693, 694 (2nd

Dept. 1979). The use of such conclusory language as the term “victim” constitutes an invasion of

the jury’s role for deliberation. Id. The case law provided by Mole-Richardson in their original

Motion feeds off of the same interpretation, where it was, again, stressed that such conclusory

terminology would result in unfair prejudice before the jury.

Plaintiffs base their Opposition on the fact that the courts have used the phrase to

describe individuals with asbestos-related illnesses, and that, again, the “[c]ourt’s inadvertent

use of the term ‘victim’ during th[e] [jury] charge was not unduly prejudicial.” See, Plaintiff’s

Letter Opposition to Defendant’s Omnibus in Limine Motion Practice, citing to Wylie v. Consol.

Rail Corp., 261 A.D.2d 955, 955 (4th

Dept. 1999), emphasis added. Plaintiffs’ opposition fails to

take into account that (a) the cases cited to do not establish that the term, when used by the

plaintiff, their counsel, or their witnesses, is not deemed to be unfairly prejudicial, and (b) in

Wylie, the court’s use of the term “victim” was inadvertent, which leads to the understanding

that it was not foreseen that the term would be used.

Pursuant to Mole-Richardson’s Motion, the courts have previously held that “where the

use of unfair or prejudicial language can be foreseen, it properly is prohibited in limine. See, e.g.,

In re Related Asbestos Cases, 543 F. Supp. 1152, 1159 (N.D. Cal 1982). Furthermore, it does not

matter if the terms or labels are expected to be used by plaintiff, plaintiff’s counsel, or by one of

plaintiff’s expert witnesses See, e.g., Beck v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941).

These references lay the foundation that Mole-Richardson properly cited authority favoring their

position that the phrase should be precluded from use by plaintiffs, plaintiff’s counsel, or their

witnesses.

The above case-law supports that the use of the term “victim” or any form or derivation

thereof by individuals other than the court would clearly make the term unfairly prejudicial, as it

would cast a negative light on the defendants and would in turn tarnish the jury’s ability to

provide a fair and just verdict. Additionally, the term is foreseeable, despite not knowing the

specific context in which the term may be used, as the use of the term in any context, if presented

before the jury would automatically be unfairly prejudicial. Mole-Richardson’s Motion In

Limine, the Defendant moved to preclude plaintiffs, their counsel, and their witnesses from using

the term “victim” or any form or derivation thereof at trial in order to avoid an unfair trial before

the likes of the jury. In light of the aforementioned, Mole-Richardson respectfully requests that

the Court grant its motion in limine to preclude Plaintiff from using this term.

21. Motion In Limine To Preclude A Charge of Recklessness.

{N0838617-1} 12

Plaintiffs in their Opposition erroneously claim that Mole-Richardson’s Motion ignores

the language of the applicable portions of the CPLR §1602, particularly §1602(7), which

provides “The limitations set forth in [Article 16 of the CPLR] shall: … not apply to any person

held liable for causing claimant’s injury by having acted with reckless disregard for the safety of

others.” Additionally, Plaintiffs assume that Mole-Richardson will be claiming that Plaintiffs’

own recollection of exposure should be the only evidence on which to base a claim of

recklessness. However, Plaintiffs’ argument is inconsequential and without merit, as Mole-

Richardson did not contend that “only evidence of its reckless disregard for Plaintiffs’ safety can

be considered.” In fact, Mole-Richardson particularly concludes its Motion by stating that there

is insufficient evidence to support the finding of reckless disregard for decedent’s safety or the

safety of others. As such, given that Mole-Richardson did not “ignore” the applicable portions of

the statute, and that Mole-Richardson is not focusing on evidence as it relates solely to the

Plaintiffs, but to others as a whole, we respectfully request that Plaintiffs’ Opposition to this

Motion be denied.

22. Motion In Limine To Exclude Punitive Damages and/or to Preclude Any and All

Evidence Related to Punitive Damages.

Plaintiff states in Opposition (page 2) she they will not be seeking punitive damages.

Accordingly, we consider this controversy resolved.

23. This Court Should Preclude Plaintiffs From Referring to Punitive Damages In

Their Opening Statement and From Claiming Any Amount of Punitive Damages

Before the Jury.

Plaintiff states in Opposition (page 2) she they will not be seeking punitive damages.

Accordingly, we consider this controversy resolved.

24. Motion in Limine to Preclude Audio or Visual Recording or Publication of Court

Proceedings or Social Media Use

Plaintiff has submitted no opposition to this motion in limine. Mole-Richardson renews

its request for the reasons articulated in its underlying motion.

25. Mole-Richardson Requests a Forty-Eight Hour Disclosure Rule

The parties have privately agreed on this issue. Mole-Richardson withdraws its request to

the Court based on this agreement.

26. Motion In Limine To Compel Plaintiff To Provide Complete Disclosure In Writing

Of Settled Entities

Plaintiff has submitted no opposition to this motion in limine. Mole-Richardson renews

its request for the reasons articulated in its underlying motion.

{N0838617-1} 13

27. Motion In Limine to Seek The Placement Of Settled Entities On The Verdict Form

For Apportionment Purposes As Required By General Obligations Law § 15-108

Plaintiff has submitted no opposition to this motion in limine. Mole-Richardson renews

its request for the reasons articulated in its underlying motion.

28. Motion In Limine to Preclude Chad Staller and/or David Markham from Providing

Testimony

Following oral argument on the separately briefed lost wages claim, the Court has held

that plaintiff’s economic loss claim shall be precluded. We assume plaintiff’s have no reason to

call these experts and this motion is now moot.

Very truly yours,

McGIVNEY, KLUGER & COOK, P.C.

Ryan W. Sweeney

Ryan W. Sweeney, Esq.

cc: All counsel of record (via electronic filing)