IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`THOMAS C. LARKIN,
`
`CIVIL DIVISION – ASBESTOS
`
`Plaintiff,
`
`v.
`
`A.O. SMITH CORPORATION, et al.,
`
`Defendants.
`
`No. GD 19-007940
`
`MOTION IN LIMINE TO PRECLUDE
`PLAINTIFFS FROM ARGUING THAT
`PLAINTIFF’S DISEASE WAS CAUSED
`BY HIS TOTAL AND CUMULATIVE
`EXPOSURE TO ASBESTOS-
`CONTAINING PRODUCTS
`
`Filed on behalf of Defendant, Chicago
`Pneumatic Tool Company, LLC.
`
`Counsel of record for this party:
`
`JONI M. MANGINO, ESQUIRE
`Pa. I.D. 43586
`mangino@zklaw.com
`
`RYAN A. ZELI, ESQUIRE
`Pa. I.D. 203054
`zeli@zklaw.com
`
`ZIMMER KUNZ, PLLC
`310 Grant Building, Suite 3000
`Pittsburgh, PA 15219
`(412) 281-8000
`
`02306201.DOCX 7918-0000
`
`02305590.DOCX 7918-0000
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`THOMAS C. LARKIN,
`
`Plaintiff,
`
`v.
`
`A.O. SMITH CORPORATION, et al.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL DIVISION – ASBESTOS
`
`No. GD 19-007940
`
`MOTION IN LIMINE TO PRECLUDE PLAINTIFFS FROM ARGUING OR OFFERING
`EVIDENCE THAT PLAINTIFF’S DISEASE WAS CAUSED BY HIS TOTAL AND
`CUMULATIVE EXPOSURE TO ASBESTOS-CONTAINING PRODUCTS
`
`AND NOW comes the Defendant, Chicago Pneumatic Tool Company, LLC (CP) by and
`
`through its attorneys, JONI M. MANGINO, ESQUIRE, RYAN A. ZELI, ESQUIRE and ZIMMER
`
`KUNZ, PLLC, and files the within Motion in Limine to Preclude Plaintiff from Arguing or Offering
`
`Evidence that Plaintiff’s Disease was Caused by His Total and Cumulative Exposure to Asbestos-
`
`Containing Products as follows:
`
`1.
`
`Plaintiff filed this action alleging that he contracted an asbestos related disease from
`
`his alleged exposure to products containing asbestos allegedly manufactured and/or supplied by
`
`various Defendants, including CP.
`
`2.
`
`Plaintiff is likely to argue two conflicting points in this case: First, it is anticipated
`
`that Plaintiff will argue that Mr. Larkin’s disease was caused by his total and cumulative exposure
`
`to asbestos; and second, that the defendants should not be permitted to introduce evidence of Mr.
`
`Larkin’s exposure to asbestos manufactured or supplied by non-parties, parties with whom
`
`plaintiffs have settled, or bankrupt entities. These two arguments and theories conflict with one
`
`another.
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`02306201.DOCX 7918-0000
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`3.
`
`Defendant, CP, requests this Honorable Court for an Order:
`
`a. Prohibiting plaintiffs from making any argument or introducing any evidence
`
`that Plaintiff’s disease was caused by his total and cumulative exposure to
`
`asbestos-containing products; or, in the alternative
`
`b. Allowing the remaining defendant(s) to introduce evidence of all of Plaintiff’s
`
`exposure to asbestos-containing products, notwithstanding whether they were
`
`manufactured and/or supplied by a defendant, bankrupt entity, or non-party.
`
`4.
`
`In support of the Motion, defendant incorporates and relies upon the accompanying
`
`Brief.
`
`Respectfully submitted:
`
`ZIMMER KUNZ, PLLC
`
`By: /s/ Ryan A. Zeli
`RYAN A. ZELI, ESQUIRE
`Attorneys for Defendant,
`Chicago Pneumatic Tool Company
`ZIMMER KUNZ,PLLC
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
`(412) 281-8000
`
`02306201.DOCX 7918-0000
`
`02305590.DOCX 7918-0000
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`THOMAS C. LARKIN,
`
`Plaintiff,
`
`v.
`
`A.O. SMITH CORPORATION, et al.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL DIVISION – ASBESTOS
`
`No. GD 19-007940
`
`BRIEF IN SUPPORT OF MOTION IN LIMINE TO PRECLUDE PLAINTIFFS FROM
`ARGUING OR OFFERING EVIDENCE THAT MR. LARKIN’S DISEASE WAS
`CAUSED BY HIS TOTAL AND CUMULATIVE EXPOSURE TO
`ASBESTOS-CONTAINING PRODUCTS
`
`Plaintiff is likely to argue two conflicting points in this case: first, that Mr. Larkin’s disease
`
`was caused by his total and cumulative exposure to asbestos; and second, that the Defendants
`
`should not be permitted to introduce evidence of Mr. Larkin’s exposure to asbestos manufactured
`
`or supplied by non-parties or bankrupt entities. Taking these two arguments together, this is
`
`tantamount to saying that Mr. Larkin’s disease was caused only by exposure to products that were
`
`manufactured or distributed by the Defendants who are able to compensate Plaintiff.
`
`Plaintiff has put forth the proposition that Mr. Larkin’s disease was caused by his total and
`
`cumulative exposure to asbestos, that is to say that each dose substantially contributed to Mr.
`
`Larkin’s eventual development of disease. This is a convenient way to levy a claim against any
`
`manufacturer or supplier who may have produced a product that emitted any amount, or any type,
`
`of asbestos fibers that Mr. Larkin may have breathed. Unfortunately for Plaintiff, that is not the
`
`standard for proving causation in Pennsylvania. Under Pennsylvania law, in order to recover,
`
`Plaintiff must prove that either Mr. Larkin was directly exposed to asbestos from a given defendant
`
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`manufacturer/supplier’s product, or that he worked around fibers emanating from that product with
`
`a sufficient frequency, regularity, and proximity to cause his disease. See Eckenrod v. GAF Corp.
`
`544 A.2d. 50, 53 (Pa. Super. 1988), see also Gregg v. V-J Auto Parts Co., 943 A.2d 216 (Pa. 2007).
`
`If, however, Plaintiff’s assertion that Mr. Larkin’s illness is attributable to his total and
`
`cumulative exposure to asbestos is deemed to have merit, the jury must be made aware of Mr.
`
`Larkin’s total exposure to asbestos in order for it to return a just and informed verdict. Prosser and
`
`Keeton on Torts §52 at p. 347 (5th Ed., 1984) reads:
`
`[c]ertain results, by their very nature, are obviously incapable of any
`reasonable or practical division . . . no ingenuity can suggest anything more
`than a purely arbitrary apportionment of such harm. Where two or more causes
`combine to produce such a single result, incapable of any reasonable division,
`each may be a substantial factor in bringing about the loss . . .
`
`To not inform the jury of alternative, indivisible, factors in bringing about the single loss
`
`of Mr. Larkin’s disease would prejudice the defendants in that the jury would be asked to determine
`
`whether each defendant’s product was a substantial factor in causing Mr. Larkin’s disease without
`
`knowing all the possible factors that could have gone into the process.
`
`Although there is case law that limits the relevancy of a plaintiff’s exposure to a bankrupt's
`
`and non-party's product, there are certain circumstances where it is relevant. In A C and S v. Asner,
`
`344 Md. 155, 686 A.2d. 250 (1966), the court found:
`
`A factual defense may be based on the negligible effect of a claimant's exposure to
`the defendant's product, or on the negligible effect of the asbestos content of a
`defendant's product, or both. In such a case the degree of exposure to a non-party's
`product and the extent of the asbestos content of the non-party's product may be
`relevant to demonstrating the non-substantial nature of the exposure to, or of the
`asbestos content of, the defendant's product. But, a defendant would not ordinarily
`generate a jury issue on lack of substantial factor causation only by showing the
`dangerousness of a non-party's product to which the claimant was exposed.
`Ordinarily a defendant would have to follow up the evidence of exposure to the
`products of non-parties with evidence tending to prove that the defendant's product
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`was not unreasonably dangerous or was not a substantial causal factor. Under these
`circumstances the proposition that the defendant's product is not a substantial cause
`may be made more probable by evidence tending to prove that the claimant's
`disease was caused by the products of one or more non-parties.
`
`Id.
`
`Plaintiff may claim that informing the jury of Mr. Larkin’s exposure to bankrupt and non-
`
`party entities would confuse the jury and prejudice her case. This issue was flushed out in
`
`Rutkowski v. Occidental Chemical Corp., 1989 U.S. Dist. LEXIS 1731, where the Court held that:
`
`Plaintiff would be correct if the only issue before the court was the assessment of
`damages owing by parties found liable to the plaintiff. However, a prior and central
`issue in this case is whether any or all of the defendants are, in fact, liable. At least
`some of the defendants maintain that they have no liability because they played no
`role in causing Plaintiff’s lung cancer. On the issue of causation, it will be important
`for the jury to consider the nature and extent of Plaintiff’s long-term exposure to
`asbestos. Because there is typically a thirty-year gap between a harmful exposure
`to asbestos and the actual diagnosis of lung cancer, and because different types of
`asbestos have widely differing toxicities, it will be necessary for the jury to hear
`evidence as to when Plaintiff was exposed to asbestos and to what kinds of asbestos
`he was exposed.
`
`Id.
`
`If Defendant’s motions are denied, the jury will hear evidence that Mr. Larkin developed
`
`a disease that Plaintiff will argue was caused by exposure to asbestos. When the defendants argue
`
`that it was not their asbestos that caused Mr. Larkin’s injury, the jury will rightfully be thinking
`
`that there isn’t any evidence of any other entities that could have caused the injury; therefore, it
`
`must have been caused by the defendants named in the complaint. Plaintiff cannot be allowed to
`
`hide the ball in such a manner.
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`02306201.DOCX 7918-0000
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`WHEREFORE, it is respectfully requested that the Court enter the attached order.
`Respectfully submitted:
`
`ZIMMER KUNZ, PLLC
`
`By: /s/ Ryan A. Zeli
`RYAN A. ZELI, ESQUIRE
`Attorneys for Defendant,
`Chicago Pneumatic Tool Company
`ZIMMER KUNZ, PLLC
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
`(412) 281-8000
`
`02306201.DOCX 7918-0000
`
`02305590.DOCX 7918-0000
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`

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`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Motion in Limine has been
`
`served upon Plaintiff’ counsel, with notice being served upon all remaining counsel of record by
`
`mailing same by email this 19th day of May, 2022:
`
`Michael J. Gallucci, Esquire
`Savinis, Kane, & Gallucci, LLC
`436 7th Avenue, Suite 322
`Pittsburgh, PA 15219
` (Attorneys for Plaintiff)
`
`Respectfully submitted:
`
`ZIMMER KUNZ, PLLC
`
`By: /s/ Ryan A. Zeli
`RYAN A. ZELI, ESQUIRE
`Attorneys for Defendant,
`Chicago Pneumatic Tool Company
`
`02306201.DOCX 7918-0000
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`02305590.DOCX 7918-0000
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`THOMAS C. LARKIN,
`
`Plaintiff,
`
`v.
`
`A.O. SMITH CORPORATION, et al.,
`
` Defendants.
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`CIVIL DIVISION – ASBESTOS
`
`No. GD 19-007940
`
`ORDER OF COURT
`
`AND NOW, to-wit, this _______ day of ___________________, 2022, it is hereby
`
`ORDERED, ADJUDGED AND DECREED that the Motion in Limine to Preclude Plaintiff from
`
`Arguing or Offering Evidence that Plaintiff’s Disease was Caused by His Total and Cumulative
`
`Exposure to Asbestos-Containing Products of Defendant, Chicago Pneumatic Tool Company,
`
`LLC is GRANTED.
`
`BY THE COURT:
`
`___________________________________J.
`
`02306201.DOCX 7918-0000
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`02305590.DOCX 7918-0000
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`