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FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`.. SUPREME COURT OF THE STATE OF NEW YORK
`NEW YORK COUNTY
`
`INDEX NO. 190028/2014
`
`RECEIVED NYSCEF: 07/31/2017
`
`PRESENT: HON.MARTINSHUL~
`
`Justice
`
`PARTl
`
`INDEX NO.
`
`MonONDATE
`
`_
`
`_
`
`MOTION SEQ. NO.
`
`_
`
`\
`
`190028/2014
`Index Number:
`COONEY, GEORGE
`vs
`AMCHEM PRODUCTS
`SequenceNumber: 004
`TRIAL DE NOVO
`
`INC
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`The following papers, numbered 1 to ~,were
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`Affidavits - Exhibits
`to Show GallOP,
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`,Answering Affidavits - Exhibits,
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`__________
`
`.,J.S.C.
`
`HON. MARTIN SHULMAN'
`D CASE DISPOSED
`~ON.FINAL
`DISPOSITION
`DGRANTED DDENIED DGRANTED IN PART DOTHER
`DSETILE ORDER
`DSUBMIT ORDER
`D 00 NOT POST D FIDUCIARY APPOINTMENT DREFERENCE
`
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`1
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK:
`CIVIL TERM PART 1
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`GEORGE COONEY,
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`-
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`--x
`
`Plaintiff,
`
`INDEX NUMBER:
`- against -
`190028/14
`AMCHEM PRODUCTS, INC., BORG-WARNER CORPORATION,
`CATERPILLAR, INC., CERTAINTEED CORPORATION,
`CUMMINS ENGINE COMPANY, INC., DANA COMPANIES,
`Defendants.
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`-
`-
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`-
`60 Centre Street
`New York, New York
`July 7, 2017
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`-
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`--x
`
`BEFORE:
`
`HONORABLE MARTIN SHULMAN, Justice
`
`APPEARANCES:
`WEITZ & LUXENBERG
`Attorney for the Plaintiff
`760 Broadway
`New York, New York 10003
`BY:
`DANNY R. KRAFT, JR., ESQ., Of Counsel
`PIERRE A. RATZKI, ESQ., Of Counsel
`HOLWELL, SHUSTER & GOLDBERG, LLP
`Attorney for the Defendant
`750 Seventh Avenue, 26th Floor
`New York, New York 10019
`BY:
`JAMES M. MCGUIRE, ESQ., Of Counsel
`DANIEL M. SULLIVAN, ESQ., Of Counsel
`
`MONICA HORVATH
`SENIOR COURT REPORTER
`
`MONICA S. HORVATH - SENIOR COURT REPORTER.
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`2
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`Proceedings
`Good morning, everybody.
`THE COURT:
`Good morning, Your Honor.
`MR. KRAFT:
`Good morning, Your Honor.
`MR. RATZKI:
`MR. SULLIVAN: Good morning, Your Honor.
`MR. MCGUIRE:
`Good morning, Your Honor.
`"THE COURT: I thank counsel who have come on
`short notice this morning to accommodate the Court in an
`effort to resolve or dispose of Caterpillar Inc. 's,
`4404(a) motion to dismiss on a variety of grounds.
`As stated off the record, in an effort to
`foster judicial economy and move things along, it was
`the Court's considered judgment to render a bench
`decision, rather than devote a great deal of time to
`writing an opinion here. I think it best serves the
`parties in this case.
`That said, because this transcript is the
`Court's decision based on different comments or opinions
`that I may make during the course of oral argument, I
`requested and obtained consent of counsel to allow the
`Court to reread the transcript for that portion of the
`transcript of the Court's colloquy preferably to correct
`typographical errors and things of that nature.
`I will not in any way change or modify any of
`the comments, arguments, statements by respective
`counsel on this matter.
`
`MONICA S. HORVATH - SENIOR COURT REPORTER
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`3
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`Proceedings
`Bear in mind, oral argument is not what counts.
`What counts are the motion papers, the trial transcript,
`and the evidence that was submitted, all that is the
`record if an appeal is taken goes up.
`And all that is
`what my decision will be predicated on, notwithstanding
`how creative, clever and charming, the arguments are at
`this point.
`That said, let's sort of hit the ground running
`with Mr. Sullivan addressing what I think might be one
`of the easier issues to address as we go through the
`different arguments seriatim.
`MR. SULLIVAN: Certainly, Your Honor, so --
`THE COURT: So, I opened the door.
`Let's talk about the Article 16 issue, first.
`MR. MCGUIRE: That is basically mine.
`I thought Your Honor was beginning with
`causation.
`THE COURT: No.
`importance.
`MR. MCGUIRE: Okay.
`James McGuire, for the defendant Caterpillar
`
`There is no particular order of
`
`Inc.
`
`with respect to the Article 16 issue, as Your
`Honor will recall, the sole ground that was, you know,
`raised at trial was basically the contention that the
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`4
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`proceedings
`other manufacturers of the forklifts and the
`asbestos-containing products should not be on the
`verdict sheet for Article 16 purposes.
`Because there
`weren't any hypothetical questions asked of the
`causation expert for the plaintiff with respect to those
`entities.
`
`And, you know, our position is basically that
`that is just a red herring.
`Because the -- Mr. Cooney
`testified that he was exposed to the forklifts of the
`other manufacturers in the exact same way. He said he
`couldn't distinguish them in any way.
`His exposure to
`their forklifts, and their asbestos-containing products
`in any -- it wasn't in any way different. He said a
`forklift, is a forklift, is a forklift.
`And, so, our point is that the jury could not
`reasonably or rationally have accepted that Caterpillar,
`was liable without, without finding that the other
`parties, that Mr. Skelly sought to have included on the
`verdict sheet were also liable.
`THE COURT: Mr. McGuire, two points or rather a
`question and a point.
`Correct me, if I'm wrong, but can an adverse
`party such as Caterpillar, use an expert on the other
`side in the affirmative to satisfy your independent and
`discrete burden to put a particular Article 16 entity on
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`Proceedings
`the verdict sheet, whether it be an actual named
`defendant, settled defendant, or bankrupt tort feasor?
`So that's the first question.
`And the second point is, if I understand your
`point, this jury should be able to circumstantially,
`infer, from Dr. zhang's testimony that when he advised
`of all the exposures, which cumulatively contributed to
`Mr. Cooney's, lung cancer and that he identified -- when
`I say "he," Mr. Cooney -- based on reading portions of
`his deposition transcript or any other information that
`came before the jury in identifying the different
`forklift companies that he was exposed to and the
`different asbestos-containing products or components he
`was exposed to in working on these forklifts during that
`period when he was working for Heister, that you are
`saying that as a matter of law the jury can draw those
`inferences without having an affirmative, discrete
`expert opinion establishing specific causation as to
`each and every product, assuming each and every
`defendant of those products were actually sitting in
`this courtroom.
`Do you understand what I'm raising, sir?
`MR. MCGUIRE: Well, I may.
`I certainly understand the first question, Your
`Honor. And I will try to do my best with the second
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`6
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`question.
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`proceedings
`
`with respect to the first question, I think
`there is law that says that, you know, you can't use an
`affirmative parties's expert to basically make -- to use
`him as a coopted expert as your witness.
`THE COURT: But that's what you are doing, sir,
`
`isn't it?
`
`It's not that at all.
`MR. MCGUIRE: No, no.
`It is simply, it is simply pointing out that on
`the basis of the testimony given by their expert, the
`jury could have only accepted that expert's testimony as
`it undoubtedly did, it could not rationally, have come
`to any other conclusion than that the other
`manufacturers were"also liable.
`THE COURT: How could that be, sir, in the
`absence of a specific question to Dr. zhang, in a
`hypothetical, or in assuming certain facts in evidence
`to specifically opine that that particular exposure
`contributed or caused Mr. Cooney's lung cancer?
`So, for example -- let's play it out a bit -- I
`understand what you are advancing is logical, but last
`time I looked, causation here is not based on logic.
`Causation is based on facts on the grounds to establish
`by a preponderance of the credible evidence that a
`specific fact has been determined.
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`proceedings
`So, as far as I know on this record -- and
`correct me if I'm wrong -- Dr. Zhang,'opined solely as
`to Caterpillar's forklifts, and the products that were
`part of its forklifts, as being a substantial factor in
`causing Mr. Cooney's illness during period x and period
`Y.
`
`Do you agree?
`
`There was no other question that I am aware of
`that he was asked, with respect to any other forklift
`manufacturer, or any other brake, clutch, or gasket
`manufacturer with respect to elicit specific causation
`opinion testimony. There was none.
`You are shaking your head.
`MR. MCGUIRE: Yes, I do.
`in cross
`THE COURT: So, if Mr. Skelly
`examination said, doctor, I would like you to assume
`that Mr. Cooney was exposed to a variety of different
`companies' forklifts, and a variety of different
`asbestos-containing products, in the absence of
`plaintiff raising those entities and products, in the
`affirmative on direct -- which plaintiff did not do
`because there was nobody else here but Caterpillar --
`could you have done that? And that's why I asked the
`first question.
`And you credibly answered agreeing with me on
`the law that you could not coopt an affirmative witness
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`8
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`Proceedings
`You had the
`on behalf of your Article 16 burden.
`ability to call your own expert, an industrial
`hygienist, a medical causation expert, Dr. Mulgavkar, an
`epidemiologist.
`I mean, you could have brought in a
`whole army of people here to be able to specifically ask
`them, well, what about all these other products as part
`of your burden.
`And that was not done.
`So, I'm really left with, sir, you are asking
`me to set aside the verdict grounded on logic and
`circumstantial inferences in the absence of facts on the
`ground as to specific causation.
`That's why I thought
`the Article 16 issue for me was so much easier to
`resolve or think about here.
`Your other issue is a little more complicated.
`MR. MCGUIRE: Well, Your Honor, first of all --
`and I don't want your Honor to think I'm backing away in
`any sense --
`THE COURT: I don't think that at all.
`MR. MCGUIRE: -- with whatever else I was about
`
`to say.
`
`I said that I was aware of the Court's
`authority of the proposition that you can't coopt. I
`have never run that down to the ground.
`And, so, I
`don't mean to be making any concessions about that.
`I don't think that Your Honor needs to get
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`9
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`proceedings
`Because Your Honor said it is based on the facts
`there.
`on the ground. And the facts on the ground are that
`Mr. Cooney, testified -- Mr. Cooney testified he was
`exposed to the other forklifts and the
`asbestos-containing components in exactly the same way.
`He couldn't distinguish the amount of time, he couldn't
`distinguish any difference.
`And as I said before, the forklift --
`THE COURT: So, let me ask you something, sir,
`that is correct that we have identity.
`That's one part.
`Then we also have to think about -- see, you are raising
`a good point Mr. McGuire, so let's buildup the case as
`to the burden you expected them to have, which you claim
`that they failed, A -- if it's the same burden;
`A) they have to identify the particular
`product that Mr. Cooney was exposed to.
`Then they have to identify negligence or
`determine that those companies failed to warn and that
`those companies knew or were required to know
`constructively about the information in the state of the
`art to establish the failure to warn burden which would
`be your Article 16 burden. That's A.
`Was that done on this record, sir?
`MR. MCGUIRE: Well --
`THE COURT:
`Yes or no, sir?
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`10
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`proceedings
`MR. MCGUIRE: Yes, I think it was.
`It was done on the record in the sense that
`their state of the art expert testified quite clear.
`And this was not raised, so I don't have all the
`testimony on the top of my head.
`That wasn't --
`THE COURT: It's in their papers.
`It's in their
`opposition papers.
`It was raised.
`I am relying logically and factually on the
`entire record before me, Mr. McGuire. This is not
`gamesmanship.
`I'm a straight shooter.
`I'm trying to
`understand, sir.
`I tend to recall, information fairly well
`during the trials that I preside over -- I do not recall
`where your side, specifically asked questions of the
`state of the art expert where he was told, what about A
`entity, B entity, C entity, were these companies
`expected to know or did they know or should they have
`known or was it in the market place for them to know so
`that they were negligent in failing to warn?
`Respectfully, I don't know if I saw any of that
`on the record.
`Did you see that on the record?
`MR. MCGUIRE: I don't recall seeing any
`questions from --
`THE COURT: So, that's one point.
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`11
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`We
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`proceedings
`You are jumping to the specific causation.
`still have to go back to the building blocks.
`The first same burden they have, which you
`claim they didn't meet, one, A, did they identify a
`product or company.
`Two, was there a basis to establish negligence.
`Three -- Mr. Sullivan will pick this up when he
`addresses the general and specific causation item, I
`don't mean to burden you on this issue, so that if you
`believe they should be on the verdict sheet, then you
`believe that based on Mr. Cooney's testimony addressing
`visible dust and all that that entails that plaintiff
`has met their burden qualitatively and he did not have
`to meet it quantitatively in order to get these other
`entities on the verdict sheet, that would be the third
`component of the burden on Article 16.
`So, how do you address that?
`MR. MCGUIRE: Okay, I'm not sure that I'm
`following you.
`But, let me just say first, that I apologize if
`anything I said gave the Court the impression that I
`thought that the Court was engaging in any gamesmanship.
`If the Court thought that, I certainly didn't mean to
`suggest that at all.
`THE COURT: Okay.
`
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`12
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`proceedings
`MR. MCGUIRE: I'm very sorry if I inadvertently
`
`did that.
`
`We are good.
`THE COURT: You don't have to.
`MR. MCGUIRE: Again, their act, I think goes
`back to the question of whether there is a necessity in
`order to get a party included in an Article 16 -- for
`Article 16 purposes -- is whether or not there has to be
`an affirmative case put on by a witness for the Article
`16 purpose.
`And if Your Honor specifically disagrees with
`us on that then that will be the answer and that will be
`up to the Appellate Division to figure out.
`THE COURT: Okay, fair enough.
`Good.
`need to keep belaboring it.
`It is my considered judgment that any other
`party other than the plaintiff would have an affirmative
`burden as the plaintiff would to put a particular
`Article 16 entity on the verdict sheet. Which the
`defendant did meet his burden in putting Mr. Cooney on
`the verdict sheet for contributing to his lung cancer by
`smoke in which required an independent burden which was
`met and not challenged by the plaintiff. I believe that
`came through with Dr. Safirstein's testimony.
`So, just
`by way of an example.
`So, yes, I believe that is the case law that
`
`We don't
`
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`13
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`Proceedings
`Under those circumstances, your
`supports that.
`application to seek a reversal based on error of law in
`that regard is denied.
`The next interesting issue, Mr. Sullivan, I
`believe you began your papers addressing -- and if I'm
`mistaken, you can correct me if I'm wrong
`on the
`general and specific causation weaknesses of this case.
`MR. SULLIVAN: Specifically, specific causation,
`Your Honor.
`Yes.
`THE COURT: Okay.
`MR. SULLIVAN: Very well.
`Daniel Sullivan, for the defendant Caterpillar
`
`Inc.
`
`So, again, I appreciate the Court making the
`time to see us this morning.
`And I don't want to take
`up more of the time than is necessary.
`I think that this issue is, you know, as I was
`rereading the papers in advance of the hearing today,
`really boils down to a simple proposition. And that is
`that the Court of Appeals cases, from Parker to Shawn R,
`which the first department's decision in Juni made
`clear, applied to asbestos cases, require the plaintiff
`to establish by some kind of scientific assessment,
`admittedly, not necessarily a quantitative one, but some
`scientific assessment that a level of exposure that the
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`14
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`proceedings
`decedent had specifically from the products of the
`defendant was enough to make it more likely than not
`that the defendant's products caused the illness.
`And, in Juni, we know or from Juni we know that
`an asbestos case visible dust alone is not enough.
`THE COURT: I agree with you.
`MR. SULLIVAN: Okay.
`And then I think that -- you know, I think
`stripping away a lot of the 26-pages in the plaintiff's
`opposition, I think that that's much of the their theory
`of the case on specific causation.
`Now, I know they say that there's other
`but
`material in the record -- I want to address that
`I
`I think that's a critical proposition of law here.
`won't belabor it since it doesn't appear to be at issue.
`But, then --
`THE COURT: I'm not sure that that's accurate,
`Mr. Sullivan.
`Mr. Ratzki, do you want to quickly
`respond?
`
`MR. RATZKI: Yes, absolutely, Your Honor.
`pierre Ratzki, for the plaintiffs.
`We are not arguing that visible dust alone is
`sufficient.
`Nor, have we ever stated -- and this is a
`persistent strongman -- that Parker does not apply in
`asbestos cases or Shawn R, does not apply in asbestos
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`That has never been or position.
`Our position is that of the long line of cases
`from the first department, and from trial level,
`affirming jury verdicts based on evidence such as the
`one in this record is perfectly consistent with the
`Parker standard.
`In fact, the same first department that decided
`Juni, only in October of 2016, decided Hackshaw and
`Sweberg.
`
`The causation evidence in that case was that
`there was long days of working in visible dust.
`And
`this was over a sufficient period of time.
`And the
`plaintiff's expert said this was necessarily enough
`fibers to cause the disease.
`That's the same evidence
`we have on the record here.
`The plaintiff worked for several hours a day.
`It would take him four to five hours to change a gasket,
`two to seven hours to change a clutch, two to
`eight hours to replace brakes.
`And that was over a
`period of almost a decade.
`For that to be considered
`di minimus exposure is simply not factual.
`Our expert certainly met his burden or
`He
`certainly helped plaintiffs meet their burden.
`stated that visible dust in this context necessarily
`contained millions of asbestos fibers.
`Millions of
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`asbestos fibers over a period of almost a decade,
`certainly satisfies the Parker standards.
`Certainly
`satisfies the standard under the Lustinring line of
`cases, under Hackshaw, under Sweberg, and under Juni.
`Juni made clear, that Lustinring, is perfectly
`compatible with the Parker standard.
`As is Penn, which
`was of course a Parker, first department case.
`They stated that the distinction between the
`records at issue in Juni and the record in those cases
`was the factual underbelly of visible dust over long
`periods of time over many hours during the day. That's
`what we have here.
`So when visible dust is coupled with testimony
`showing the intensity and the proximity and the
`duration, that is perfectly sufficient to support a jury
`verdict.
`
`THE COURT: Mr. Sullivan, would you agree that
`one of the key factual issues in Juni is not at play
`here with respect to conversion of chrysotile to
`forsterite?
`MR. SULLIVAN: So, I think that the record here
`is obviously not exactly the same as it was in Juni.
`It's a different case.
`But, I think that in relevant part, you know.
`you have, what my friend on the other side just suggests
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`proceedings
`recited, years long exposure to asbestos-containing
`products from working on brakes and gaskets as a car
`mechanic.
`
`Right here, you have -- that was how he
`described -- or excuse me, as a forklift repairman
`that was how he described the record here. Well, that's
`very, very, close to the record in Juni.
`In the course of
`THE COURT: Well, one of the issues in Juni as I
`understand it -- and again this is important because if
`there is an appeal it's important that the Appellate
`Division recognize that we are dealing with different
`kinds of records -- what's at issue here is whether the
`undisputed facts here are different from Mr. Juni's
`exposure.
`There's nothing on Caterpillar's side of the
`table that would challenge a description of the products
`Cooney was working on, and/or his testimony and those
`products containing asbestos-containing materials --
`just bear with me --
`MR. SULLIVAN: Sure.
`THE COURT: Which is again a description of the
`Lohrmann standards -- he didn't know those words, I'm
`just describing -- with frequency, regularity, and
`proximity, as an end user working with removing the old
`products and putting in the new products and using the
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`

`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`proceedings
`air hose and all that he described in his multiyear
`exposure to forklifts and components working on the
`forklifts, all that has not really been disputed by the
`defense side.
`Your argument, as you understand Juni to be is
`that plaintiff failed to meet his burden in establishing
`the quantity of the exposure.
`In other words, was there some kind of formula
`proffered by an expert, that says, okay, having worked X
`number of hours with such and such products with this
`type of fiber release, this is what was in the air over
`the threshold values to have established his disease.
`I'm trying to make sense of the argument --
`MR. SULLIVAN: Sure.
`THE COURT: -- why you believe Juni is
`applicable and warrants reversal here.
`MR. SULLIVAN: Sure.
`THE COURT: And as I see it the critical issue
`in Juni was the fact that the Appellate Division
`arguably believed that based on Dr. Markowitz's and
`Dr. Moline's testimony in conjunction with the claim
`that chrysotile turned into forsterite, that that factor
`triggered a quantity issue.
`And because of that fact
`even if told there was visible dust, the AD wrote, well,
`in Juni visible dust doesn't work.
`You need something
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
`
`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`So,
`
`Proceedings
`more. So, the Court said, i.e., majority, (the dissent
`says something differently.)
`And as I understand it
`upon information and belief leave has been granted.
`we will see how the Court of Appeals sorts this out.
`But, what I'm posing to you, sir, is on this
`record -- and, again, correct me if I am wrong -- I do
`not believe there has been any challenge that as to
`Mr. Cooney's identification of the products that he
`worked with that they were on the Caterpillar forklifts,
`-- we will deal with the company later -- that his
`description of how he removed the old and put in the new
`and the cleaning methods, all that he described actually
`met the Penn, Lustinring, and Caruolo standards that I
`understand have not been reversed in the Juni decision.
`Is there anything that challenged that on the
`record separate from the legal argument that you are
`making
`and I respect it -- that Juni mandated a
`different kind of burden that they put on this record?
`MR. SULLIVAN: Well, so I guess I would say a
`couple things in response to that, Your Honor --
`THE COURT: Sure.
`and I don't want to loose
`MR. SULLIVAN:
`sight of making as clear as I can the nature of the
`legal argument that we are making here because I don't
`mean to suggest that the plaintiff has to provide a
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`

`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`proceedings
`precise quantitative measurement of the level of
`exposure.
`
`I accept that the Court of Appeals said in
`Parker that the precise mathematical calculation is not
`required, but there must be some either quantitative or
`qualitative scientifically reliable assessment.
`And
`that's where we begin, right.
`And so the question from our perspective is
`whether it is enough that Dr. Zhang, said that there
`must have been, not that there necessarily were, but
`there must have been millions of fibers in the air
`because there was a lot of dust. That's the sum and
`substance of the expert record that we have here.
`And I think that that is, that is no more
`compelling than what the first department had before it
`in Juni.
`
`And the lynchpin of the decision in Juni, is
`exactly an application of the Court of Appeal's
`requirement of a quantitative or qualitative scientific
`assessment of the level of exposure than would be that
`the plaintiff had and establishing that that level of
`exposure was enough to cause the illness.
`THE COURT: Sir, excuse me, do you know the
`record in Penn?
`MR. SULLIVAN: I don't have the record in
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`

`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`RECEIVED NYSCEF: 07/31/2017
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`Penn --
`
`proceedings
`
`21
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`I just
`
`product.
`
`THE COURT: That's okay.
`MR. SULLIVAN: -- in front of me.
`THE COURT: That's okay.
`Again, it's not a test question
`MR. SULLIVAN: Sure.
`THE COURT:
`I'm just making a point.
`want to know if you are familiar with it.
`MR. SULLIVAN: Sure.
`THE COURT: Penn, involved some type of dental
`Dental liners, if I'm not mistaken.
`MR. SULLIVAN: Sure.
`THE COURT: And I believe the plaintiff was
`involved in a technical context in cutting these dental
`liners -- I don't know how many, I'm not sure if there
`was any testimony of how many he cut on a particular day
`-- and the nature of the dental liner was that it wasn't
`something like pipe covering where there is dust all
`over the place.
`Although, there may have been some
`visible dust when he cut them.
`And yet his description
`of it and the testimony that was presented in Penn, is
`comparable to the kind of testimony that was offered by
`Dr. Zhang, and was upheld by the Appellate Division.
`Hackshaw and Sweberg, as I understand it based
`on my reading of those decisions describe the same type
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`The plaintiffs
`of exposure history that Mr. Cooney did.
`worked with certain products.
`They described the
`regularity, frequency, proximity and the manner in which
`they worked with those products.
`They described visible
`dust noted. And the experts on those records gave the
`same type of testimony that Dr. Zhang did here.
`So I'm struggling with your attempt to suggest
`that qualitative testimony requires something more
`precise than what has been described here.
`I need you
`to help me with that.
`What do you think should have been said here?
`MR. SULLIVAN: Well, all we really know is that
`the decedent worked with products containing asbestos.
`In working with those products dust was created.
`And so
`that's all we know as the factual matter.
`That was the
`situation in Juni.
`And the Court in Juni was clear on exactly what
`distinguished the Lustinring, and all those cases that
`go down to Hacksaw and Sweberg, what those cases had
`that Juni did not, the Court said that, "where the
`courts relied on evidence linking visible dust to the
`use of a particular defendant's product, expert
`testimony established that the extent and quantity of
`the dust to which the plaintiffs had been exposed
`contained enough asbestos to cause the mesothelioma."
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`FILED: NEW YORK COUNTY CLERK 07/31/2017 02:08 PM
`NYSCEF DOC. NO. 90
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`INDEX NO. 190028/2014
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`proceedings
`
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`And none of those cases was the mere presence
`of physical dust considered alone --
`THE COURT: So my point --
`MR. SULLIVAN:
`if I could just complete the
`thought, Your Honor.
`THE COURT: Sure, sorry.
`MR. SULLIVAN: So it can't be the case that it's
`enough for an expert to add to the presence of visible
`dust alone.
`I say that that's enough, but it has to be more
`than a conclusory ipse dixit.
`It has to be a scientific
`analysis of look this -- and this is clear in Parker
`itself, right?
`Parker says, although you don't need a
`mathemati

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