throbber
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`FILED: ERIE COUNTY CLERK 04E2019 03:26 P
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`NYSCEF DOC. NO. 523
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`SUPREME COURT OF THE STATE OF NEW YORK
`EIGHTH JUDICIAL DISTRICT
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`In the Matter of the Eighth Judicial District Asbestos Litigation
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`
`STATE OF NEW YORK
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`COUNTY OF ERIE
`:
`SUPREME COURT
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`JAMES STOCK , Jr. and LYNN M. STOCK
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`DECISION AND ORDER
`Index No: 807846/2017
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`vs.
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`AIR & LIQUID SYSTEMS CORP.,as
`Successor by Merger to
`Buffalo Pumps, Inc. et al.,
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`Plaintiffs
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`Defendants
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`The court has considered the following papers: Notice of Pest-Trial Motion of
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`Defendant Jenkins Bros, dated November 13, 2018; Affirmation in Support of Jeffrey
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`C. Fegan, Esq, with attached exhibits, dated November 13, 2018; Affirmation in
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`Opposition to Defendant Jenkins Bros.’ Motion of Seth A. Dymond, Esq., dated
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`December 10, 2018, with attached exhibits; Reply Affirmation in Further Support of
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`Jeffrey C. Fegan, Esq, with attached exhibits, dated December 21, 2018;
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`Notice of Motion of Plaintiffs for Post-Verdict Relief, dated November 13, 2018;
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`Affirmation in Support of Plaintiffs’ Motion of Seth A. Dymond, Esq, with attached
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`James Stock, Jr. and Lynn M Stock vAir and Liquid Systems Corp,
`Erie County Index No. 807846/2017
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`exhibits, dated November 13, 2018; Affirmation in Opposition to Plaintiffs’ Motion of
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`Jeffrey C. Fegan, Esq, with attached exhibits, dated December 10, 2018; Reply
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`Affirmation in Further Support of Plaintiffs’ Motion of Seth A. Dymond, Esq, with
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`attached exhibit, dated December 21, 2018.
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`Joint Request to Supplement the Record of Settled Third Parties Warren Pumps,
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`LLC, Crane Co. and Flowserve US, inc. regarding Defendant Jenkins Bros. Motion,
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`dated December 11, 2018; Affirmation of David J. Goodearl, Esq. in Support of the
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`Joint Request, with attached exhibits, dated December 10, 2019 ; Affirmation of David
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`Oxamendi, Esq, in Support of the Joint Request, dated December 7, 2018, with
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`attached exhibits, Affirmation of Joseph P. LaSala ,Esq., in Support of the Joint
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`Request, with attached exhibit, dated December 7, 2018.
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`At the trial of this action, plaintiffs1 recovered for James Stock, Jr.’s personal
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`injuries from mesothelioma caused by exposure to asbestos which occurred while Mr.
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`Stock was employed at New York Wire Mills (Wire Mills) in Tonawanda, N. Y. from
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`1979 until 1986. Plaintiffs contended at trial that plaintiff's work with asbestos-
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`containing materials used in and on valves manufactured and supplied by defendant
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`Jenkins Bros. (Jenkins) was a substantial factor in the development of his illness.
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`The jury trial in this matter, in which Jenkins was the sole remaining defendant,
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`began on August 24, 2018. On September 14, 2018, a verdict was rendered which
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`1This decision and order uses plaintiffs to include both spouses and plainitff to mean
`James Stock, Jr., as the context requires.
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`NYSCEF DOC. NO. 523
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 8078461201?
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`found that decedent was exposed to asbestos-containing gaskets or packing used in
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`connection with Jenkins valves ; that Jenkins failed to exercise reasonable care by not
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`providing a warning about the hazards of asbestos—containing gaskets of packing used
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`in connection with its valves; and that the failure to warn plaintiff was a substantial
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`factor in causing his injuries. The jury awarded $4,500,000.00 for James Stock's past
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`pain and suffering, including loss of enjoyment of life, $1,500,000 in future pain and
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`suffering fora period of one year, $66,000 for past loss of earnings, $400,000 for future
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`loss of earnings for period of six years, $50,000 for past loss of consortium to Lynn M.
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`Stock and $450,000 for future loss of consortium for a period of 22 years. Thejury
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`found that Jenkins was fifty percent responsible for plaintiff’s injuries. The jury also
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`found four co-defendant valve and pump manufacturers responsible and allocated the
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`following shares of responsibility: Bell & Gossett Company (Beil & Gossett), Rockwell
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`Manufacturing Company (Rockwell) and Warren Pumps, LLC (Warren ) at 12 % each
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`and Crane Co. (Crane) for 14%.
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`Defendant takes issue with the verdict in all its particulars and moves, in the
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`alternative: forjudgment notwithstanding the verdict and dismissal of the complaint; for
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`a new trial; and remittitur to cure an excessive verdict.
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`Plaintiffs move for judgment as a matter of law awarding $376,307 in damages
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`for loss of household services in the future, or in the alternative, for a new trial on that
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`issue.
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`Jenkins argues that plaintiffs, in order to recover, had to prove that the Jenkins
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 8078461201?
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`valves plaintiff worked with and around contained asbestos or used asbestos-containing
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`components when they left the factory. Further, defendant maintains that plaintiffs
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`failed to establish that Mr. Stock’s asbestos-related disease was caused by his work
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`with Jenkins valves. Defendant’s proposed remedy is judgment notwithstanding the
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`verdict.
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`Jenkins seeks a new trial, asserting that it was deprived of a fair trial because co—
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`defendant pump and valve manufacturers Crane, Rockwell and Warren failed to comply
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`with its subpoena for trial testimony of their corporate representatives. This testimony
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`was sought, Jenkins explains, on issues of liability, including allocation.
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`Defendant also contends that the jury’s allocation of fault was against the weight
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`of the evidence, mandating a new trial.
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`Further, defendant claims that the court made evidentiary errors, each requiring
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`a new trial: the court erred in refusing to allow defendant to introduce a 1973 paper by
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`Barry Castleman, Sc D., during the cross-examination of plaintiffs' expert David Rosner,
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`Ph.D.; the court erred in failing to preclude the testimony of plaintiffs’ economic expert,
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`Larry Spizman, Ph.D.; and the court erred in refusing to permit Jenkins’ expert
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`industrial hygienist, Gayle McCluskey , to testify concerning _a study she conducted in
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`the 1980's.
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`Finally, Jenkins asserts that the jury’s award for plaintiff’s past and future pain
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`and suffering is excessiveand should be reduced.
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`Plaintiffs oppose the motion forjudgment notwithstanding the verdict, asserting
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`James Stock, Jr. and Lynn M. Stock 1/ Air and Liquid Systems Corp,
`Erie County Index No. 8078461201?
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`that plaintiff’s direct testimony, the testimony of David Boisvert, Jenkins’ corporate
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`representative, Jenkins’ own product catalogs and literature and the testimony of their
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`occupationat medical expert, Jacqueline Moline, MD. are more than sufficient for
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`plaintiffs to meet their burden of establishing that plaintiff was exposed to asbestos
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`used in, on and with Jenkins valves and that defendant was liable to plaintiff for injuries
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`resulting from its failure to warn of asbestos’ dangers. Further, plaintiffs argue that the
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`testimony of its experts Dr. Motine and Dr. Rosner established specific causation.
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`Plaintiffs contend that it was Jenkins’ own choice and a matter of trial strategy to
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`use a summary of past deposition testimony of corporate representatives, rather than
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`live testimony, to prove the shares of responsibility of the co-defendants and this
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`decision does not afford a basis upon which to grant a new trial.
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`Plaintiffs also contend that the jury's allocation of liability was based on a fair
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`interpretation of the evidence.
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`Finally, plaintiffs contend that the Court’s evidentiary rulings were correct and
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`that even if they were erroneous, they were harmless as they had no impact on the
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`verdict and the claimed errors afford no basis for a new trial.
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`CPLR 4404 (a) provides that after atrial, the court may either set aside the
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`verdict orjudgment and direct judgment as a matter of law or order a new trial where
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`the verdict is contrary to the weight of evidence or contrary to the interest of justice. A
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`court may not set aside a verdict as a matter of law based upon insufficiency of the
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`evidence unless no valid line of reasoning and permissible inferences could-possibly
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County index No. 80784612017
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`lead rational jurors to the conclusion they reached (see Cohen v Hallmark Cards, Inc.
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`45 NY2d 493, 499 [1978];Zane v Corbett, 82 AD3d 1603, 1606 [4th Dept 2011]).
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`Evidence adduced at trial in a case such as this must be viewed in the light most
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`favorable to the plaintiff (see Penn VAmchem Prods, 85 AD3d 475, 476 [1St Dept
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`2011p
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`A trial court has discretionary authority upon review of the trial record to set aside
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`a verdict if it finds that the jury could not have reached it on any fair interpretation of the
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`evidence (see Husak v 45’“ Ave. Hous. Co., 52 AD3d 782, 783 [2rld Dept 2008]) .
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`Contrary to Jenkins’ claim that plaintiffs failed to prove that Mr. Stock was
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`exposed to asbestos from Jenkins valves, the trial record contains ample evidence from
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`which the jury could conclude that Jenkins valves were manufactured and supplied
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`with asbestos-containing materials. Plaintiff James Stock described the Wire Mills
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`plant as "full [and] valves and pumps and gate valves and steam and water and acid
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`going through out the whole facility.” (T 8/24 p. 35)2 With respect to his exposure to
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`asbestos, lVlr. Stock testified: "And it was a well» known fact back when l was being
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`educated because of the high temperature and the specific elements that we ran
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`through all of the pipework, that the only thing we used back in them days was
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`asbestos. Between asbestos gaskets, asbestos packing you couldn't put a piece of
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`rubber on a valve. The temperature is a thousand degrees. It would melt. [t was known
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`2 “T" references are to the trial transcript, attached to the Fegan 11l13/‘l 8 Affirmation as
`Exhibit A.
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 8078461201?
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`back then. That's how 1 was educated on what it was. " (T 8/28 pp. 36-37) Plaintiff
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`described his work with Jenkins valves’ asbestos—containing components:
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`"Q. Now what asbestos-containing products did you
`handle or use or replace, with respect to the Jenkins
`valves, the general types of products?
`
`A. Well, on that specific valve, you’re going to have two
`gaskets, asbestos gaskets, on the bottom for your intake
`and exit. Where you see the bolts on the bottom, the
`stuffing, that’s the stuffing box. You are going to have a
`a there. And as you take —on the—you’ve got the handle
`on top. There’s a bonnet there. When you take the bonnet
`out, there’s string. Usually it is three. Usually three
`strings go in there and they are cut and fit and pressed
`in. And that is able to handle the high heat." (T 8128 p. 40)
`
`A number of Jenkins’ catalogues and manuals, received into evidence , confirm
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`that its valves contained asbestos packing and gaskets as early as 1925 (T 8131 pp.
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`63-90 , Pls’ Exs 98, 99, 100, 105, 106, 107, 111, 112,114, 118 and 119). For example,
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`in its 1968 and 1982 catalogues, Jenkins stated: . "All Jenkins globe and angle valves
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`have...asbestos packing.” (T 8/31 pp 86—89, Pls’ Exs 118 and 119).
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`Jenkins’ Answer to interrogatories, dated 12/11/17, and submitted in the New
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`York City Asbestos Litigation, admitted that asbestos gaskets and packing were
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`ingredients in its valves for “ pressure sealing and mechanical integrity” (T 8/31 p. 95,
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`Asbestos Product Information Sheet Pls’ EX 20 ) .
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`Jenkins” corporate representative, David Boisvert, testified at trial and through
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`portions of an earlier video-taped deposition. He confirmed not only that Jenkins’ valves
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`contained asbestos gaskets and packing (see, eg. T 9111 pp 92-93 ; Pls’ Ex 122, pp 8-
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp.,
`Erie County index No. 80784612017
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`9) but also that Jenkins manufactured asbestos gaskets and packing and purchased
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`asbestos packing for use with its valves (T. 9/11 pp. 79-80, 79-80; Pls’ Ex 122, pp 14—
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`17). Further, Jenkins continued to manufacture asbestos gaskets and packing until at
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`least 1981 (T 9/11 p. 86).
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`Jenkins also contends that plaintiffs failed to prove that it had a duty to warn of
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`the dangers of asbestos-containing parts because it had no control or knowledge of
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`“third-party" packing and gasket used with its valves. Plaintiffs assert that the trial
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`record supports the jury’s findings that Jenkins failed to exercise reasonable care by not
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`providing a warning about the hazards of exposure to asbestos from gaskets or packing
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`materials used in connection with its valves.
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`In evaluating this aspect of defendant’s motion, the court is guided by In re New
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`York City Asbestos Litig.[Dummiti; In re Eighth Jud. District Asbestos Litig. [Suttner], 27
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`NY3d 765 (2016). in Dummitt,
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`the Court of Appeals found manufacturers liable for
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`injuries caused by asbestos dust released by scraping and removal of insulation and
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`gaskets from valves, the same as the cause of the injuries suffered by plaintiff here.
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`"Consistent with our decision in Rasteiii v Goodyear
`Tire 8: Rubber 00., 79 NY2d 289, (1992), we hold that
`the manufacturer of a product has a duty to warn of
`the dangerarising from the known and reasonably
`foreseeable use of its product in combination with
`a third—party product which, as a matter of design,
`mechanics or economic necessity, is necessary to
`enable thermanufacturer‘s product to function
`as intended".
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`James Stock, Jr. and Lynn M. Stock vAir and Liquid Systems Corp,
`Erie County index No. 8078463/2017
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`Here the it is clear that Jenkins knew that asbestos—containing parts were
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`needed to run its valves properly. Mr. Boisvert agreed that asbestos gaskets and
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`asbestos packing used in certain Jenkins valves were “necessary to ensure the
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`mechanical integrity of the valve” (Pls’ Ex 122 p. 19) and that asbestos gaskets would
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`be needed, for example to connect the valve to piping (Pls' Ex 122 p. 9; T 9/11 p. 84) .
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`He stated that Jenkins not only equipped its valves with asbestos-containing gaskets
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`and packing which it manufactured (Jenkins also bought some packing), it
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`manufactured and sold such asbestos-containing products as replacement parts (Pls’
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`Ex 122 pp. 15 -16). In addition, the record contained evidence that Jenkins knew that
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`the packing and gaskets in its valves would need to be replaced with like kind
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`replacements as acknowledged by Mr. Boisvert (T. 9/11 p. 47, Pls' Ex 122 p. 9) .
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`Jenkins specified asbestos gaskets as replacements ( Pls’ Exs 98 & 99, Pls’ Ex 122 p.
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`8). In fact, Jenkins issued manuals detailing how to perform this work on its valves (Pts
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`Ex 107) . Plaintiffs ‘ evidence, including Mr. Stock’s own testimony, quoted supra,
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`supports their ciaim that Jenkins valves, as used in the Wire Mills plant needed
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`asbestos-containing gaskets and packing to function as intended. The triai record
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`shows that Jenkins knew that these components would have to be replaced, specified
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`that asbestos should be replaced with asbestos and knew the methods of replacement.
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`Plaintiffs have therefore satisfied the Dummitt standard.
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`Finally, it was undisputed at trial that Jenkins never gave any warnings
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`concerning the use of asbestos with, in and on its valves.
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 807846/2017
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`Jenkins next asserts that plaintiffs’ causation evidence is faulty in that it does not
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`meet the quantification standard for specific causation set forth in Parker v Mobil Oil, 7
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`NY3d 434 (2006) as applied in in re New York City Asbestos Litigation [Junrj 32 NY3d
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`1116 (2018). Further Jenkins asserts that plaintiffs' expert evidence lacks a proper
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`foundation.
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`The Fourth Department’s decision in Dominick v Charles Millar & Son, 149
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`AD3d 1554,1555—1556 (2017), while preceding the Court of Appeals decision in Juni, is
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`instructive:
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`“With respect to specific causation, the Court of Appeals
`held in Parker v Mobil Oil Corp. (7 NY3d 434, 448 [2006],
`rearg denied 8 NY3d 828 [2007]) that the expert opinion
`must set forth that the piaintiff “was exposed to sufficient '
`levels of the toxin to cause the [injuries]” (see Sean R.
`v BMW of N. Am, LLC, 26 NY3d 801, 808 [2016]). However,
`as the Court of Appeals later wrote, ”Parker explains, that
`‘precise quantification' or a ‘dose-response relationship’
`or ‘an exact numerical value’ is not required to make a
`showing of specific causation" (Cornell v 360 W. 5 1 st 81‘.
`Realty, LLC, 22 NY3d 762, 784 [2014], rearg denied
`23 NY3d 996 [2014]). There simply“ ‘must be evidence
`from which the factfinder can conclude that the plaintiff
`was exposed to ievels of [the] agent that are known to
`cause the kind of harm that the plaintiff claims to have
`suffered’ " (id). Here, plaintiff's expert opined that,
`if a worker sees asbestos dust, that is a “massive
`exposure .
`.
`. capable of causing disease.” Contrary to
`the M-illar defendants' contention, the expert's opinion,
`considered along with the rest of her testimony, was
`sufficient to establish specific causation (see Matter of
`New York City Asbestos Litig., 143 AD3d 483, 484 [2016];
`Matter of New York City Asbestos Litig, 143 AD3d 485,
`486 [2016]; Penn vAmchem Prods, 85 AD3d 475,
`476 [2011])."
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County index No. 807846/2017
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`Plaintiffs in Dummitt and the plaintiff in Dominick were exposed to asbestos in
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`the same manner as Mr. Stock. All removed and replaced asbestos-containing gaskets
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`and packing , which were used in and on valves.
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`The Court of Appeals decision in Juni did not create a new standard and
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`continued to apply Parker and Cornell, finding the “particular evidence was insufficient
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`to meet the required standard". Hence the Parker/ Cornell standard as recognized and
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`applied by Dummitt and Dominick is still the rod by which the court is to measure the
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`proof.
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`In Juni, as detailed in the Appellate Division, First Department’s opinion (148
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`AD3d 233 [2017]) plaintiff automobile mechanic was exposed to brakes, clutches and
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`automobile gaskets. Unlike this case, in Juni, plaintiff’s experts were confronted with
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`uncontested evidence that simply was not present here, for example: evidence that
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`chrysolite asbestos fibers in brake pads can be transformed into a nontoxic chemical,
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`forsterite; studies which showed that brake debris and some forms of brake dust were
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`99 percent non-asbestos; and that 21 of 22 epidemiological studies of mechanics
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`working with friction products found no increased risk of mesothelioma.
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`In contrast, here, Mr. Stock testified that his work with asbestos-containing
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`gaskets and packing included removing old gaskets and packing which were “crumbly,
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`baked on, dusty” (T 8l28 p. 43) and had to be cleaned out with a wire brush 99 percent
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`of the time. (id) He also testified that the packing he replaced was burnt, and the area
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`cleaned with an air hose before replacement (T 8/28 p. 44). This work was" always
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 80784672017
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`dusty” and “created a lot of dust” (T 8/28 pp. 44.48.5166, 68 and 111). Further, he
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`stated that the dust covered his face, head and hair (T 8/28 pp. 53, 69) . He also
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`worked in the vicinity of others who did this work (T 8/28 pp. 44, 46) and performed this
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`work daily during the period 1979-1986 (T 8/28 p. 46) . He was also exposed to
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`asbestos when he constantly cleaned up with air hoses and brooms (T 8/28 p.54 ),
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`breathing in dust which contained “asbestos fibers, gaskets, asbestos gaskets, packing
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`dust, other materials" (T 8/28 p. 55).
`
`Further, unlike Juni , plaintiffs’ expert Dr. Moline was able to testify with
`
`reference to studies showing that gaskets and packing contained up to 75 % asbestos
`
`(T 8130 pp. 92). She identified studies which quantified asbestos release from gasket
`
`and packing removal and replacement, as well as debris clean-up work. For example,
`
`she testified about asbestos fiber levels reported in two of those studies:
`
`“ That during sweeping activities, the fibers were measured
`at 1.7 fibers per cc [cubic centimeter] in sweeping up gasket
`materials. During the packing removal, there was fiber release
`of 1.01 fibers per cubic centimeter, and that there was a
`Range during the wire scraping ,
`I believe it was .44 fibers
`per cubic centimeter was in one of the articles that we
`discussed.
`
`But they were all in the range of .04 to .44 and [but] in the
`packing, I know there was a measurement of 1.01 fibers per
`cc with-removal of packing . And the sweeping was 1.7
`fibersper cc of the debris removal from the gaskets"
`(T 8/30 1910.117—118)3
`
`3 The studies to which Dr. Moline referred were: Reieasabi/ity of Asbestos Fibers from
`Asbestos-Containing Gaskets and Packing, Millette, Mount and Hays ; Evaluation of
`Airborne Asbestos Fiber Levels During Removal and Instai/ation of Valve Gaskets and
`Packing, McKinney and Moore.
`
`12
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`12 of 19
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`

`

`FILED: ERIE COUNTY CLERK 04/25/2019 03:26 PM
`FILED: ERIE COUNTY CLERK 04E2019 03:26 P
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`NYSCEF DOC. NO. 523
`NYSCEF DOC. NO. 523
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`INDEX NO. 807846/2017
`INDEX NO- 807846/2017
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`R«C«IV«D VYSCEF: 04/25/2019
`RECEIVED NYSCEF: 04/25/2019
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`
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`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 807846/2017
`
`Dr. Moline stated several times that the levels of exposure which she quantified were
`
`capable of causing mesothelioma (T 8/30 pp.114-120). Dr. Moline’s testimony
`
`sufficiently met the standards set forth in Parker as explained in Dominick and the
`
`cross-examination failed to discredit such testimony.
`
`Jenkins claims that its due process rights were violated when it was deprived of
`
`the trial testimony of co-defendants’ ( Rockwell, Warren and Crane) witnesses,
`
`occasioned by the failure of those witnesses to comply with its subpoenas. Defendant
`
`argues it planned to utilize these witnesses to prove co~defendants’ liability
`
`for the asbestos-related illness suffered by plaintiff, and allocation of that responsibility.
`
`Jenkins contends that, in the interest ofjustice, the remedy for this failure to comply
`
`with the subpoenas would be a new trial.
`
`Plaintiffs take issue with the facts as presented by Jenkins as do co-defendants
`
`Rockwell, Warren and Crane in their request to supplement the record.
`
`Defendant issued trial subpoenas shortly before trial. On September 5, 2018,
`
`Rockwell, Warren and Crane‘s motions to quash were denied (Ex E to Fegan 11/13/18
`
`Aft.) The Court also ruled that defendant could use either the deposition testimony of its
`
`adverse parties or trial testimony. (id) Efforts to stay the subpoenas by motions to the
`
`Appellate Division, Fourth Department were unsuccessful (Ex P to Dymond 12/10/18
`
`Aff.) Throughout this period, counsel for Jenkins and the co-defendants were in
`
`continuous contact concerning scheduling of these witnesses (See, eg. Ex F to
`
`Fegan11/13/18 Aft). Finally, on September 12, 2018, counsel for plaintiffs and Jenkins
`
`13
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`

`

`FILED: ERIE COUNTY CLERK 04/25/2019 03:26 PM
`FILED: ERIE COUNTY CLERK 04 25 2019 03:26 P
`
`NYSCEF DOC. NO. 523
`NYSCEF DOC. NO. 523
`‘
`
`807846/2017
`INDEX NO. 807846/2017
`INDEX NO'
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`
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`
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`04/25/2019
`RECEIVED NYSCEF: 04/25/2019
`R<.C«.IV«.D \IYSCEF:
`
`
`
`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 80784612017
`
`agreed the defendant could read a summary of past deposition testimony of the co-
`
`defenclants corporate representatives. This summary concerned the liability of co-
`
`defendants obviating the need for live witnesses or reading of transcripts (Ex D to
`
`Goodearl Aff). Counsel for Jenkins then withdrew his subpoenas (id).
`
`It is noted that
`
`defendant, through this strategy, successfully allocated 50% of the liability to the co-
`
`defendants and one other party.
`
`Jenkins maintains that the evidence at trial mandated the jury find an equal
`
`allocation to other valve manufacturers; that its 50 percent share is not supported by
`
`the evidence.
`
`With respect to the Jenkins’ claim that the jury's allocation of fault was not
`
`supported by the evidence, questions of negligence and apportionment of fault are for
`
`the fact-finder, and must be upheld on any fair interpretation of the evidence (see
`
`Rhoden v Montaibo, 127 AD2d 645, 646 [4‘h Dept 1987]; Ryan v New York City Health
`
`and Hosps Corp.r 220 ADZd 734,736 [2nd Dept 1995]).
`
`Here, as the jury was instructed, Jenkins had the burden of proving that plaintiff
`
`was exposed to products of the other entities on the verdict sheet, that those entities
`
`were negligent in failing to warn and that this negligence was a substantial factor in
`
`causing decedent’s injuries. After these three findings were made, Jenkins had to
`
`prove the “equitable shares” of responsibility (see Matter of New York City Asbestos
`
`Litig.[Marshaii], 28 AD3d1255, 256 [19't Dept 2006]; Matter of New York City Asbestos
`
`Litig.[reosim], 256 AD2d 250,252 [15t Dept 1988]; Zaiinka v Owens—Corning Fiberglass
`
`14
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`14 of 19
`14 of 19
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`

`

`FILED: ERIE COUNTY CLERK 04/25/2019 03:26 PM
`FILED: ERIE COUNTY CLERK 04 25 2019 03:26 P
`
`NYSCEF DOC. NO. 523
`NYSCEF DOC. NO. 523
`
`INDEX NO.
`807846/2017
`INDEX NO. 807846/2017
`
` fiIVfiD
`
`
`VYSCEF:
`04/25/2019
`RECEIVED NYSCEF: 04/25/2019
`
`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 807846l2017
`
`Corp, 221 AD2d 830, 831(3rd Dept 1995).
`
`Based on the proof submitted by the defendant , the apportionment made by the
`
`jury is a fair interpretation of the evidence.
`
`Turning to the errors claimed by Jenkins to warrant a new trial in the interest of
`
`justice:
`
`“CPLR 4404 (subd [a]) authorizes the court, either by motion
`of any party, or on its own initiative, to order a new trial "in the
`interest of justice". it is predicated on the assumption that the
`Judge who presides at trial is in the best position to evaluate
`errors therein (4 Weinstein-Korn- Miller, NY Civ Prac, par
`4404.01). The Trial Judge must decide whether substantial
`justice has been done, whether it is likely that the verdict has
`been affected (Matter of De Lane, 34 AD2d 1031, 1032,
`affd 28 NY2d 587) and "must look to his own common
`sense, experience and sense of fairness rather than to
`precedents in arriving at a decision”
`
`Micallef v. Miehie Co., Div. of Miehle-Goss Dexter; 39 N.Y.2d 376,
`381, (1976)
`
`During defendant’s cross-examination of plaintiffs’ expert David Rosner, Ph. D.
`
`counsel sought to introduce a 1973 paper titled “Asbestos & You” by Barry Castleman,
`
`Sc D. When confronted with the question whether Dr. Castleman had published the
`
`1973 paper, the witness stated “You know, you got me" and expressed surprise that
`
`Dr. Castleman was writing as early as 1973 (T 8/29 p. 221). Defendant failed to
`
`demonstrate that the 1973 paper had been published, that Dr. Rosner was familiar with
`
`the paper or that he recognized it as authoritative.
`
`in order to use a textbook or a
`
`treatise (assuming that the 1973 paper qualifies as either), on cross-examination, it
`
`must be shown that the expert regards the book or treatise as. authoritative ( Winiarski v
`
`15
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`

`

`FILED: ERIE COUNTY CLERK 04/25/2019 03:26 PM
`FILED: ERIE COUNTY CLERK 04E2019 03:26 P
`
`NYSCEF DOC. NO. 523
`NYSCEF DOC. NO. 523
`
`INDEX NO. 807846/2017
`INDEX NO- 807846/2017
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`
`
`
`
`R«.C«.IV«.D \iYSCEF: 04/25/2019
`RECEIVED NYSCEF: 04/25/2019
`
`
`
`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 80784812017
`
`Harris, 78 AD3d 1556, 1558 [4th Dept 2010], Labate v Plotkin, 195 AD2d 444, 445 [4th
`
`Dept 1993]). This was not done. The Court notes that Dr. Castleman’s testimony
`
`about this paper at an unrelated 2018 trial, was not part of the trial proof and is
`
`mentioned forthe first time in defendant’s memorandum on this motion. Thus, it had no
`
`bearing on the Court’s decision to preclude the paper at triat.
`
`Defendant next argues the Court erred in failing to preclude the testimony of
`
`plaintiffs’ economic expert, Larry Spizman, Ph.D., a subject of a pretrial motion in
`
`limine. White there is no question that the disclosure of the witness and his report were
`
`not provided to defendant until June 25, 2018, some 8 months after the deadline set by
`
`the discovery and trial submission schedule, it was received two months before trial.
`
`Defendant has failed, now and at the prior motion, to demonstrate that the delay was
`
`wilful or intentional or that it was prejudiced by the late disclosure , as required for
`
`preclusion ( Sisemore v Leffler, 125 AD3d 1374 (4“1 Dept 2015) . Further, that plaintiff
`
`was seeking economic damages was not novel information. Plaintiffs’ September 6,
`
`2017 interrogatory responses made it clear that economic damages were sought.
`
`Additionally, this Court declines to find Dr. Spizman’s testimony was speculative, as
`
`urged by Jenkins.
`
`Finally, the Court’s decision to preclude Gayle McCluskey from testifying about a
`
`study she conducted in the 1980‘s was not erroneous. A deposition given by the
`
`witness,
`
`in another case, reveals that the study she conducted while employed by Sun
`
`Oil Co., was never reduced to writing, was never published, the witness did. not "recall
`
`16
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`16 of 19
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`

`

`FILED: ERIE COUNTY CLERK 04/25/2019 03:26 PM
`FILED: ERIE COUNTY CLERK 04E2019 03:26 P
`
`NYSCEF DOC. NO. 523
`NYSCEF DOC. NO. 523
`
`INDEX NO. 807846/2017
`INDEX NO- 807846/2017
`
`
`
`
`
`R«.C«.IV«.D \iYSCEF: 04/25/2019
`RECEIVED NYSCEF: 04/25/2019
`
`
`
`James Stock, Jr. and Lynn M. Stock v Air and Liquid Systems Corp,
`Erie County Index No. 8078461201?
`
`the results of every sample” and the statisticai analysi

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