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INDEX NO. 190311/2015
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`INDEX NO- 190311/2015
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`NYSCEF DOC. NO. 870
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`NYSCEF DOC. NO. 870
`SUPREME COURT OF THE STATE OF NEW YORK — NEW YORK COUNTY
`
`
`
`PRESENT:
`
`MANUEL J. MENDEZ
`
`I
`
`PART 13
`
`Justice
`
`IN RE: NEW YORK CITY ASBESTOS LITIGATION
`.....................................................................x
`
`MARY MURPHY-CLAGETT, as Temporary
`Administrator for the Estate of PIETRO MACALUSO,
`Plaintiff,
`
`- Against -
`
`A.O. SMITH WATER PRODUCTS CO., et al.,
`Defendants.
`
`INDEX NO
`
`190311/ 15
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`MOTION DATE
`
`08-31-2018
`
`MOTION SEQ. NO.
`
`021
`
`MOTION CAL. No.
`
`The following papers, numbered 1 to
`
`5 were read on this motion to set aside the verdict.
`
`Notice of Motion/ Order to Show Cause — Affidavits — Exhibits
`
`Answering Affidavits — Exhibits
`
`Replying Affidavits
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`Cross-Motion:
`
`Yes X No
`
`PAPERS NUMBERED
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`1-2
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`3-4
`
`5
`
`Upon a reading of the foregoing cited papers it is ordered that this motion by
`defendant Burnham for an order pursuant to CPLR § 4404 (a) setting aside the
`jury’s verdict on liability and damages, or in the alternative reducing the damages
`award for pain and suffering and loss of parental guidance is granted and a new
`trial on damages is ordered unless, within 30 days from the date of service of a
`copy of this order with notice of entry, plaintiff stipulates to reducing the
`damages award for Pietro Macaluso’s pain and suffering from $25 million to $10
`million, loss of parental guidance to Jackson Macaluso from $17 million to $9
`million and loss of parental guidance to Nora Grace Macaluso from $18 million to
`$10 million.
`If the plaintiff so stipulates then the motion is denied.
`
`After a jury trial in which a verdict was returned in favor of plaintiff and
`against the defendants, the Defendant Burnham moves to set aside the verdict and
`for a new trial. The Defendant alleges that the verdict was against the weight of the
`evidence and excessive. Defendant alleges that:
`(1) Burnham should be granted judgment notwithstanding the verdict because :
`A- Dr. Markowitz causation opinion was invalid;
`B- The court improperly allowed plaintiff’s hearsay interrogatory Response and gave
`a curative instruction which decided a contested factual issue against Burnham;
`C- Plaintiff failed to prove proximate cause;
`D- The court should grant a directed verdict as to the children’s claim for loss of
`parental guidance.
`
`
`
`FORTHEFOLLOWINGREASON(S):
`
`
`
`MOTION/CASEISRESPECTFULLYREFERREDTOJUSTICE
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`(2) Burnham should be granted a new trial because :
`A- The court erred in its duty to warn instruction;
`8- The court erred in admitting the Johns-Manville records;
`C- Burnham’s apportionment defense was prejudiced by the quashing of its
`subpoena;
`D- The Court erred in refusing to place Johns-Manville on the verdict sheet;
`E- The Court erred in charging the jury on Recklessness;
`F- The Court erred in precluding evidence of Mr. Macaluso’s failure to pay child
`support.
`(3). The court should grant Remittitur because:
`A- The pain and suffering award is excessive;
`B- The award for loss of parental guidance is excessive.
`
`These errors, it argues, compel setting aside the verdict and granting a new trial.
`Alternatively the jury’s award for pain and suffering and for wrongful death should be
`substantially reduced.
`
`Plaintiff opposes the motion and argues that the verdict is not against the weight
`of the evidence nor excessive, and that the court did not err in its evidentiary rulings or
`in its charge to the jury. Plaintiff contends that :
`(1) Burnham is not entitled to judgment as a matter of law because:
`A- plaintiff presented sufficient evidence of specific causation;
`B- Decedent’s interrogatory responses were properly used;
`C- Plaintiff provided sufficient evidence from which the jury could infer that
`decedent would have heeded a warning;
`D- defendant is not entitled to Judgment Notwithstanding the verdict on
`plaintiff’s claim for loss of parental guidance.
`
`(2) Defendant is not entitled to a new trial because:
`A- The Jury Charge as to Duty to warn was proper;
`B- The court properly admitted Johns-Manville records to cross-examine
`Burnham’s corporate witness as to its purchase from Johns-Manville;
`C- The court properly quashed defendant’s trial subpoena and the Jury’s verdict
`on apportionment is not against the weight of the evidence;
`D- Defendant failed to make a submissible case for apportionment to Johns-
`Manville;
`E- The Jury’s determination of Recklessness was not against the weight of the
`evidence;
`F- The court properly excluded evidence of decedent’s failure to pay child
`support.
`
`(3) The court should deny any Remittitur because:
`A- Defendant fails to show that the award for Pain and suffering deviates
`materially from what is reasonable under the circumstances;
`8- Defendant fails to show that the award for wrongful death deviates materially
`from what is reasonable compensation.
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`FILED: NEW YORK COUNTY CLERK 10/01/2018 09:35 AM
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`NYSCEF DOC. NO. 870
`NYSCEF DOC. NO. 870
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`Relevant Trial Testimony
`
`Pietro Macaluso, at the age of 55, was diagnosed with Mesothelioma in April
`2015 and died, at the age of 56, in July 2016. He is survived by his two children,
`Jackson and Nora Grace Macaluso, a pair of twins who were each 9 years old at the
`time of his death. Mr. Macaluso’s estate sued the defendants and other entities it
`
`believed were responsible for his death.
`
`Mr. Macaluso stated that he was exposed to asbestos when he worked for Bruno
`Frustaci removing heating systems from residences in Brooklyn from between 1972, or
`1973, and 1982. Mr. Macaluso stated that he worked for Mr. Frustaci for about 10 years,
`part-time on weekends before and during college, and full-time during the summer. He
`mostly worked renovating homes. Mr. Macaluso stated that he assisted the plumber as
`a helper clean-up guy. He worked on heaters, smashing out old units and removing
`them to the dumpster. He replaced Peerless, A.O. Smith and Burnham boilers. Before
`the new boiler was installed he would take out the old boiler by smashing it with a
`Sledgehammer, heavy hammer or crowbar. He came into contact with asbestos dust
`from breaking up these units. He stated that he used a mask when he worked with
`Bruno Frustaci because it was very dusty, but he never wore a respirator.
`
`Mr. Macaluso described the Peerless, A.O Smith and Burnham boilers that he
`removed. He stated that the A.O. Smith boiler had a stamp on it that said “A.O. Smith”
`and described its size and dimensions. He stated that the defendants’ boilers were
`
`sectional boilers that came in pieces, they looked like sections when he was taking
`them apart. Some of the boilers were rectangular and some were oval on top. They
`were cast iron and he could not remember the fuel type that they used. Some of these
`boilers had already been taken off-line, the fuel source removed, when he came to de-
`construct them.
`
`The boilers were in basements of houses that were built in the 1940's after World
`
`War II. He would use a crowbar to separate the sections and then used a
`Sledgehammer. He saw external insulation on the outside of the boilers, caked on
`joints like a mummy.
`
`There were boilers that looked like a refrigerator, that were oval and vertically
`oriented, and there were boilers that were smaller and had a horizontal shape. The
`boilers could be made bigger or smaller by adding or removing sections. These boilers
`were in the basements of one and two-family homes. They had white insulation on top.
`He stated he always used the same technique to take out the boilers: He used a
`scraper to scrape-off the white stuff on the outside of the boiler, then used a
`Sledgehammer and crowbar to break the unit apart.
`
`He stated there was dust when he removed insulation from the boilers. The
`
`place turned into a dust bowl. The dust permeated the room, it was a lot.
`all over his body, his hair, his mouth, and he breathed it.
`
`It would be
`
`There was rope insulation that just disintegrated and there was dust everywhere.
`He would break the units apart with a Sledgehammer to get the boiler pieces through
`the door. The metal would break up into shards that created dust. Then he had to
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`sweep up the dust and this created more dust. He breathed the dust in, even if he
`wore a mask. His nose would be white with stuff. He stated the dust came in through
`his nose and mouth.
`
`
`
`He stated that he removed Peerless boilers, A.O. Smith boilers and Burnham
`boilers using the same tools and practice as previously described. He further stated
`that he received no warnings from Peerless, A.O. Smith or Burnham. He assumed the
`thing (white stuff) between the pieces was asbestos.
`
`Mr. Macaluso began to feel ill in the spring and was diagnosed with
`Mesothelioma in the summer of 2015. He had a bronchoscopy, then he had a
`Thoracotomy, where approximately three (3) liters of fluid were removed from his left
`chest cavity. On December 2015 he had a Pleurectomy to remove the pleura in his left
`lung and scrape the chest cavity. Part of his diaphragm was removed and the
`remaining part had to be reconstructed. He developed a bone infection. As a result of
`this surgery he experienced significant pain, and a catheter was placed in his spine to
`control the pain. He had breakthrough pain which required even more pain medication.
`
`He was hospitalized for approximately eight to ten days. On discharge he was
`required to take Percocet and morphine, pain medication, to alleviate the pain he was
`experiencing. Mr. Macaluso stated that the pain came and went to different parts of the
`low back, the chest and the left side. He stated that when the doctor told him he had
`
`Mesothelioma he knew he was going to die no matter what, and that this made him feel
`terrible.
`
`Mr. Macaluso stated that he experienced nausea and lack of appetite, and was
`too weak to take chemotherapy. He stated that food tasted different and that he had to
`be helped to go to the bathroom. Once he didn’t make it to the bathroom and defecated
`on the floor and held it in his hand. He had to wear diapers and urinated on himself in
`the bed. He stated that these things affected his pride and reminded him that he was
`going to die.
`
`Ms. Murphy-Clagett testified that one time she came home during lunch to check
`on Mr. Macaluso and found him on the floor of the bathroom. He didn’t know how long
`he had been there. He looked emaciated. He was very weak and could not get out of
`bed without support. She further testified that after the surgery he was in severe pain,
`(reported in his medical chart as being 15/10). He could not breathe, could not sleep at
`night because he was kept awake by a tingling sensation at the incision on his left side,
`which he said felt like something crawling all over his skin. Mr. Macaluso was given
`morphine which made him itch terribly. He could not touch the left side of his body
`because it gave him too much pain. Mr. Macaluso grimaced with pain and never
`received medication that completely relieved the pain. The Chemotherapy also caused
`pain and discomfort.
`
`Mr. Macaluso could not clothe, clean or toilet on is own. He was helped in these
`activities by Ms. Murphy-Clagett and this was humiliating for him. Mr. Macaluso was
`again hospitalized in February 2016 and afterward was placed in a nursing home. Mr.
`Macaluso hallucinated a lot, and experienced mental anguish in knowing his impending
`death and that he would not be there for his children.
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`NYSCEF DOC. NO. 870
`Ms. Murphy-Clagett further testified that Mr. Macaluso died on the early morning
`of July 8, 2016.
`
`
`
`Ms. Laborde testified that she was married to Mr. Macaluso- but legally
`separated since 2010- until he died. They had two children, Jackson and Nora Grace
`Macaluso, who were both 9 at the time of his death. When the children were born Mr.
`
`Macaluso became a stay-at-home dad. He was the children’s care-giver: He prepared
`their meals, fed them, cleaned them, bathed them, took them on stroller walks, and
`
`later when they were a little older to parks and museums. They separated in 2010 and
`the children went to live with her in California; however, Mr. Macaluso talked to the
`children on the phone everyday, face-time, and he would come out to California to be
`with them once a month, because the kids were his life. When he visited in California
`the first time he stayed in a hotel, but afterwards he stayed with Ms. Laborde and the
`children in their home. While there he would make breakfast for the children.
`In 2012
`
`or 2013 Mr. Macaluso moved to Sacramento California to be closer to the children, and
`moved one mile away from where they lived. He took the children to school and picked
`them up after school every day. Nora Grace has a learning disability, Mr. Macaluso was
`instrumental in getting her tested. When it was determined that she required tutoring
`for her disability Mr. Macaluso made sure she got to the tutor, and accompanied her to
`every session.
`
`Ms. Laborde further testified that Mr. Macaluso taught the children to ride their
`bikes, took them to museums, parks and the Sacramento historic district. The children
`played team sports and he came to every soccer, T-ball, softball and baseball game.
`He loved seeing the children develop athletically. The children spent time with him in
`his apartment. He was a very social individual and he taught the children to be very
`social as well. He and Ms. Laborde were co-parents, friends and teammates. They had
`joint custody of the children but there was no document. Mr. Macaluso was fully
`integrated into the children’s lives. Even after he became too sick to be an active care-
`giver he saw his children as much as he could. Mr. Macaluso was devastated when he
`realized he was not going to be around to do any of the things he thought about doing
`with the children, that he wouldn’t be there to walk Nora Grace down the aisle or see
`Jackson graduate from college.
`
`Both Ms. Murphy-Clagett and Ms. Laborde stated that Mr. Macaluso was a
`careful person. Ms. Laborde gave examples of his driving habits and how he acted
`when she was pregnant with the twins. Ms. Laborde, in response to a question
`answered that she never knew Mr. Macaluso to smoke marijuana.
`
`Plaintiff presented Dr. Arnold Brody, PhD., expert with a doctorate in lung cell
`biology. He opined that asbestos causes and is the main cause of mesothelioma.
`
`Plaintiff presented Dr. Steven Markowitz, M.D., Board Certified in Occupational
`and Environmental Medicine. He stated that there is no established safe level of
`
`asbestos. That asbestos related cancer is not rare among asbestos exposed workers.
`That he took the history of persons who removed and cleaned up boilers using
`sledgehammers, crowbars, screwdrivers and scrapers and found substantial levels of
`exposure to asbestos in these individuals. He further stated that if someone saw
`visible dust it tells him that the exposure is substantial. Many asbestos fibers are not
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`visible because they are very small. He defined re-entrainment as the ability of dust to
`get back up into the air after it has settled down.
`
`
`
`Dr. Markowitz opined that Mr. Macaluso had pleural mesothelioma. That he was
`exposed to asbestos by demolishing and removing old boilers manufactured by
`defendants Peerless, A.O. Smith and Burnham. That the exposure to asbestos was
`substantial, and that exposure to asbestos from demolishing and removing Peerless,
`or A.O. Smith, or Burnham boilers alone was a substantial contributing factor to the
`development of Mr. Macaluso’s mesothelioma. Dr. Markowitz further opined that
`Chrysotile asbestos can cause mesothelioma. He described Mr. Macaluso’s course of
`treatment, the surgeries and the pain he endured.
`
`Plaintiff presented Dr. David Zhang, M.D., Board Certified in Pathology and
`Occupational Medicine. Dr. Zhang is of the opinion that Mr. Macaluso’s tumor cells
`show evidence of mesothelioma, that asbestos is the only cause of mesothelioma and
`that since the 1930's the literature states that asbestos causes mesothelioma. He
`
`stated on cross-examination that Mr. Macaluso’s cumulative exposure is the cause of
`the mesothelioma. He further stated on cross-examination by Peerless’ counsel that
`there are other causes for mesothelioma but they are not conclusively established.
`
`Plaintiff presented Dr. Gerald Markowitz, PhD in history, as a state of the art
`expert. Dr. Markowitz opined that by 1898 there was information on the dangers of
`asbestos and that by the 1930's it was generally recognized that asbestos causes
`disease. As of 1935, 1940 and by the mid 19505 it was acknowledged that asbestos
`caused cancer, and that by 1930 onward it was recognized that the people at risk were
`workers in different occupations that breathed asbestos dust. Dr. Markowitz testified
`about the different studies made and reports and articles written over the years,
`beginning in 1906, that refer to the dangers of asbestos. He also spoke about the
`different commissions and manufacturing associations and societies created over the
`years by state institutions and Industry, the membership of the defendants in some of
`these associations and societies, and how these associations and societies were aware
`
`and disseminated information to its members, including the defendants, of the
`dangers of exposure to asbestos dust.
`
`On cross-examination by defendant Peerless he stated that according to
`historical literature by the 1930's it was established that asbestos caused asbestosis;
`by 1950's that it caused lung cancer and that by the 1960's that it caused
`mesothelioma. He further stated that NIOSH in 1972 concluded that all fibers caused
`
`asbestosis, lung cancer and mesothelioma.
`
`On cross-examination by defendant A.O. Smith he stated that by the 1930's it
`was understood that asbestos was a public health danger. He further stated that “a
`company manufacturing a product needs to know all components and the potential
`danger of the product.
`If a company incorporates asbestos into their product they have
`a responsibility to find out the danger of asbestos. He stated that they had a
`responsibility to make sure these toxins wouldn’t injure the workers. The fact that the
`U.S. government required the use of asbestos doesn’t relieve the company of this
`responsibility.”
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`Plaintiff presented the testimony of Steven Paskal, Industrial Hygienist, who
`focused on occupational and health issues. Mr. Paskal explained what asbestos is,
`explained its aerodynamic qualities, and what it looks like under a microscope. He
`spoke about the lung function, and the permissible level of asbestos exposure. He
`stated that when work generates visible asbestos dust, the asbestos content of the
`dust is above the permissible level of exposure. He gave the ranges of average
`exposures for different types of work and stated that every increase in exposure
`creates a likelihood of developing cancer. He further stated that he read Mr.
`Macaluso’s Examination Before Trial and opines that, based on this testimony, Mr.
`Macaluso’s exposure falls in the one to ten million fiber per cc range, and if you add
`cleaning and sweeping of the asbestos dust then the exposure could be worse. He
`showed that asbestos-rope use exposure falls in the one hundred thousand to one
`million particle per cubit meter in the spectrum. He further stated that exposure from
`cleaning asbestos debris falls in the one million to one hundred million fiber range.
`
`Mr. Paskal stated that swinging a sledgehammer and using a crowbar causes
`more fibers to enter the lungs because of the metabolic rate increases. He also stated
`that re-entrainment causes millions of fibers into the air. He is of the opinion that
`plaintiff’s exposures increased his risk of mesothelioma.
`
`On cross-examination by Burnham’s counsel he agreed that he only read Mr.
`Macaluso’s Examination Before Trial testimony. That a person can’t tell how big a fiber
`is with the naked eye. He never tested the airflow in older homes, and was not aware
`of any studies regarding the removal of asbestos cement from residential boilers. He
`is only aware of forensic studies.
`
`On cross-examination by Peerless’ counsel he stated that he has overseen
`removal of boilers but in enclosed, wet, ventilated environments and has measured the
`exposure from the removal of plastic cement in wet methods, not in a dry setting. He
`has not seen any studies about removal of asbestos cement from boilers in residential
`settings. He is of the opinion that if insulation is hit with a sledgehammer it is more
`likely to cause damage.
`If a boiler is not externally insulated then the rope can cause
`damage. Yanking of rope and pounding of insulation will cause the same asbestos
`release.
`
`On cross-examination by AD. Smith’s counsel he stated that he cannot describe
`an AD. Smith boiler or an H.B. Smith boiler. He can’t remember the names of the
`boilers he has worked on.
`
`Defendant Peerless’ corporate representative, Stanley Bloom, testified at the
`trial. Mr. Bloom talked about the history of the company and stated that Peerless
`boilers had the Peerless name cast on the door. Peerless stopped using asbestos-rope
`in the 1980’s because it lost its ability to buy it. He further stated that at no time before
`the 1980's did Peerless warn about the hazards of asbestos. Peerless used asbestos
`
`rope for residential boilers between sections of block. He was present in the area when
`they cut asbestos-rope sections. The rope was fibrous. When rope was cut visible
`fibers were released. Peerless first learned of the hazards of asbestos in the 1980's
`
`and 1990's when the attorneys came seeking information for the asbestos litigation.
`Peerless provided field instruction for commercial boilers and recommended the use of
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`rope. Peerless did not provide a manual on how to take a boiler apart. He stated that in
`between sections of the boiler Peerless would place asbestos-rope, and over the rope,
`on the edge of the joint, would place asbestos-cement. Boilers were sold for
`commercial and residential applications. He further stated that the asbestos-cement
`and asbestos-rope were sold to Peerless by other companies: Johns-Manville and AP
`Greene. Peerless recommended that the boilers be covered with asbestos-cement to
`thickness of not less than one and a half (1 V2) inches up to 1675 pounds for greater
`efficiency. He described how the boilers were assembled: in sections with a rod
`through the sections and a nut on either end. Peerless stopped using asbestos-cement
`after OSHA, before the lawyers came.
`
`On examination by defendant Peerless’ attorney, Mr. Bloom described the
`Peerless basic boiler design and explained how the pressure rods prevented the
`boilers from being broken up with a sledgehammer. He explained how he was present
`during rope cutting without wearing a mask because he was not aware then of any
`hazards posed by asbestos dust. He stated that the boiler design required asbestos-
`rope and cement to prevent the escape of carbon monoxide. He further stated that the
`suppliers of asbestos-rope and cement never sent warnings to Peerless.
`
`Defendant A.O. Smith’s corporate representative, Bradley Plank, testified at the
`trial. He stated that it is irresponsible for a company to sell a product that can cause
`severe injury or death if it’s reasonably foreseeable. He stated that the last boiler he
`saw in the field was from 1972. A.O. Smith began manufacturing boilers after World
`War II, around 1947. They were gas powered and electric boilers, and came in a range
`of sizes, some approximately five (5) feet or higher and some small enough that could
`fit through a door. All the boilers he has ever seen were jacketed. He agreed that the
`boilers contained asbestos components such as asbestos-tape, woven asbestos-tubes,
`asbestos-gaskets or washers, and the inner combustion chamber door had asbestos-
`cloth. He admitted that AD. Smith bought asbestos products from other companies,
`and admitted that A.O. Smith did not warn customers about the hazards of asbestos
`contained in its products.
`
`Mr. Plank stated that A.O. Smith sold cast iron sectional packaged rectangular
`boilers that did not require external insulation. These boilers were not assembled on
`site and could fit through a doorway. These sectional boilers were sold through the
`early 1950's, they came with a user manual, did not recommend the use of asbestos
`and had no warning of asbestos. He further stated that AD. Smith boilers were marked
`with a label that identified the boiler as “A.O. Smith”. When A.O. Smith learned that its
`boilers contained asbestos it didn’t do a recall, didn’t warn of the hazards of asbestos
`or take any other step. Mr. Plank doesn’t know why this was not done.
`
`On examination by defendant A.O. Smith’s attorney, Mr. Plank described for the
`jury the parts of a sectional and a packaged boiler. Mr. Plank stated that after
`reviewing Mr. Macaluso’s testimony he believes that Mr. Macaluso did not work on
`removing A.O. Smith boilers because A.O. Smith never made a cast iron boiler that
`made steam or that was fired by oil. All the boilers A.O. Smith made were fired by gas.
`A.O. Smith boilers made hot water and did not require asbestos on the outside. The
`exterior of an A.O. Smith boiler was not as hot and could be touched with your hand
`because it was made with an outer jacket and a copper coil with a heat exchanger. He
`
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`

`FILED: NEW YORK COUNTY CLERK 10/01/2018 09:35 AM
`NYSCEF DOC. NO. 870
`
`INDEX NO. 190311/2015
`
`RECEIVED NYSCEF: 10/01/2018
`
`9 of 31
`
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`

`
`
`INDEX NO. 190311/2015
`FILED: NEW YORK COUNTY CLERK 10/01/2018 09:35 AM
`INDEX NO- ”0311/2015
`FILED: NEW YORK COUNTY CLERK 10mz018 09:35 .
`
`
`
`
`
`
`R«.C«.IV«.D \IYSCEF: 10/01/2018
`NYSCEF DOC. NO. 870
`RECEIVED NYSCEF: 10/01/2018
`NYSCEF DOC. NO. 870
`Mr. Pepper stated that a Burnham boiler cast iron section weighed from forty-
`five (45) to one hundred and fifty (150 ) pounds individually, without water, and had to
`be separated if the boiler was being de-constructed, so that they could be carried out.
`He stated that the boilers were pressed, not bolted, together. He stated that every
`boiler Burnham has ever sold requires insulation to operate properly and for safety.
`earlier years insulation was asbestos containing. Steel boilers had to be insulated in
`the field by placing insulation on the outside.
`If a boiler was properly maintained it
`could last an average of from twenty (20) to fifty (50) years, and it is possible that a
`Burnham boiler installed in the 1940's, if it was properly maintained, could last into the
`1980's. The vast majority of Burnham boilers were rectangular but some older ones
`were cylindrical and stood vertically. All the boilers Burnham made during the 1940's
`through the 1970's contained asbestos-containing components in specific areas. Some
`boilers contained asbestos-rope up to 1982. Asbestos-rope was specified by Burnham
`through its engineering department, who also specified asbestos-millboard ( for boiler
`doors), asbestos air-cell insulation and asbestos containing gaskets. Asbestos-cement
`was also widely used and recommended by Burnham to be placed outside un-jacketed
`boilers, even in residential boilers, through 1975. Asbestos insulation was most widely
`used by Burnham from the 1930's through the late 1970's. The Burnham boilers sold in
`the 1950's and 1960's would be operational into the 1980's and would contain the
`insulation that Burnham had specified.
`
`In
`
`Mr. Pepper was shown Plaintiff’s exhibits 135 through 138 in evidence. These
`were magazines and catalogues where Burnham recommended that its boilers be
`covered with asbestos cement from fifty (50) pounds on its small round boilers, up to
`1300 pounds on its large square boilers. Burnham catalogues in evidence show its
`recommendation of the use of asbestos-cement and insulation for pipes and boilers.
`Plaintiff’s exhibit 150 through 161 in evidence is Burnham’s erection instruction for a
`yellow jacket boiler and photographs depicting the boilers covered in asbestos-cement.
`Burnham sold the kit ( boiler and asbestos) for these boilers. He stated that the
`asbestos-cement covering the boilers would need to be scraped or chiseled away when
`removing the boiler.
`
`Mr. Pepper stated that Burnham knew asbestos was being used with its boilers,
`that their boilers would need to be repaired in the field and that the persons doing this
`work would be exposed to asbestos. He stated that it was foreseeable to Burnham that
`laborers would break the asbestos-cement and then clean up afterwards. He does not
`dispute that this work exposes a person to asbestos and that it was foreseeable to
`Burnham that this would happen. Mr. Pepper further admitted that Burnham was a
`member of associations, and was aware of laws enacted to prevent the dangers of
`asbestos exposure. That it advertised, received and read magazines where articles
`were published regarding the dangers of asbestos, and that it was aware of and read
`the OSHA 1972 act, but, despite this knowledge, did not warn of the dangers of
`asbestos.
`
`On examination by Burnham’s attorney Mr. Pepper stated that Burnham has
`never received any OSHA violations or had any Workers Compensation claims through
`1982. Burnham never mined or milled asbestos, owned any textile factory or
`manufactured any asbestos component. He Stated that Mr. Macaluso stated that he
`worked with Burnham boilers, but did not describe one. Mr. Pepper described the
`
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`

`INDEX NO. 190311/2015
`FILED: NEW YORK COUNTY CLERK 10/01/2018 09:35 AM
`INDEX NO- 190311/2015
`FILED: NEW YORK COUNTY CLERK 10mz018 09:35 .
`
`
`
`
`
`
`R«C«IV«D VYSCEF: 10/01/2018
`NYSCEF DOC. NO. 870
`RECEIVED NYSCEF: 10/01/2018
`NYSCEF DOC. NO. 870
`difference between a steel boiler and a cast iron boiler. He said that steel boilers are
`
`high pressure and used to heat large buildings. He stated thatjacketed boilers come
`pre-packaged and have to be assembled in the field. There are areas in a cast iron
`boiler that need to be sealed. He stated that in 1927 Burnham specified the use of pipe
`covering and asbestos cement on the exterior of un-jacketed boilers and that 1932 was
`the last year that Burnham offered for sale asbestos cement.
`In the 1932 catalogue
`Burnham specified the use of, and offered for sale, asbestos pipe covering. Burnham
`last specified the use of asbestos cement for un-jacketed boilers in 1936. He further
`stated that rope was not used between the sections, instead boiler puddy was used to
`seal between the sections. Finally he stated that the cement provided with the boilers
`was for sealing between the section assembly and the canopy. Mr. Pepper does not
`know if the boiler puddy contained asbestos.
`
`On further examination by Plaintiff’s attorney Mr. Pepper stated that Mr.
`Macaluso was vague in how he described a Burnham boiler but that Mr. Macaluso was
`correct in the way he described the Burnham boiler fuel and size

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