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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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IN RE NEW YORK CITY ASBESTOS LITIGATION
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CAROL REYNOLDS, as Executrix for the Estate of Index № 190352/2017
WARD A. REYNOLDS, and CAROL REYNOLDS,
Individually,
Plaintiffs,
-against-
A.O. SMITH WATER PRODUCTS CO., et al.
Defendants.
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AFFIRMATION IN OPPOSITION TO COLUMBIA BOILER’s MOTION
TO DISMISS THE PUNITIVE DAMAGES CLAIM
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
PATTI BURSHTYN, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury:
1. I am counsel with the law firm of Weitz & Luxenberg, P.C., attorneys for the
plaintiff, and am familiar with the facts and circumstances.
2. I submit this affirmation in opposition to the motion to dismiss certain claims, and
for other relief, filed by defendant Columbia Boiler Company of Pottstown (“Columbia”).
A. Ward Reynolds Was Exposed to Asbestos While Working on Columbia
Boilers
3. Ralph Reynolds, testified that he and his brother Ward worked together as
steamfitter from 1965 to 1979. During this time frame they repaired Columbia boilers. [annexed
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hereto as Exhibit 1, Ralph Reynold’s Deposition, at 671] Reynolds testified that the Columbia
boilers he and Ward worked on were encased in asbestos. [Id. at 630]. In removing sections of the
boilers to make repairs they would cut off the asbestos and “there was always a dust cloud that
associated the action.” [Id. at 631].
B. Columbia had Knowledge of the Application of Asbestos Insulation to
Columbia Boilers that was Foreseeable to Columbia at the Time of Plaintiff’s
Exposure.
3. Columbia’s corporate representative, John Meade, Jr., who had been employed by
Columbia since 1963, testified that Columbia knew its boilers were being insulated with asbestos in
the field no later than the mid-1960s.
4. At his deposition, Mr. Meade, a Columbia employee since 1963, has testified as
follows:
Q: Are you aware of the practice of some plumbers of
insulating the outside of boilers with asbestos?
A: When they buy knockdown boilers, that’s correct. I
am aware of that, yes.
Q: What’s a knockdown boiler?
A: The boiler is not completely packaged with the
burner and jacket mounted.
Q: And as I understand, that’s not what yours is. Yours
is different than that?
A: Ours was packaged. Our cast-iron boilers have
always been packaged. Most of our steel fired
residential boilers have always been packaged. There is
occasion where a boiler would not maybe fit down a stairway
where it would have been shipped in pieces and packaged
separately.
[annexed hereto as Exhibit 2 - October 24, 1994 Deposition of John J. Meade, Jr., at 25-26]
5. Though Mr. Meade intimates that it would be a rare instance where one of its
boilers would be shipped in knockdown rather than packaged form, Columbia openly advertised
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that its “H.R.T. gas-oil fired boilers [were] available knocked down or packaged. [annexed hereto as
Exhibit 3 - Product Brochure, “The Columbia H.R.T. Combination Gas-Oil Fired Boiler,” at 2.]
Columbia has sold the H.R.T. series of boilers since [at least] 1969. [See Exhibit 1, at 66-67] With
this in mind, Mr. Meade testified that the application of asbestos insulation to Columbia boilers was
foreseeable to Columbia at the time of Mr. Reynolds’ exposure - from 1965 to 1975. (See Ex. 1)
6. In addition, Mr. Meade testified again stating again that it was foreseeable and
common practice that its boilers would be insulated with asbestos as late as the 1970s.
Q: You will agree with me, sir, won’t you, that it was
foreseeable for knockdown units to be insulated with
asbestos insulation in the 1960s?
A: ... that was possible.
Q: How about in 1970s?
A: Much less likely in the ‘70s. I think more people we
aware of the hazard, and it wasn’t the practice. It
might have been earlier ...I don’t think there were
very many in the ‘60s even, but there could have
been.
[annexed hereto as Exhibit 4 - relevant excerpts of August 3, 2010 Deposition of John J.
Meade, Jr., at 129, 130]
6. Furthermore, Columbia admits in its interrogatory responses that “between 1983
and 1985” it made several purchases of asbestos rope and gaskets which it also incorporated into its
boilers during that time period [annexed hereto as Exhibit 5 - Excerpt of Columbia’s 2016 Liability
Interrogatories, at Question and Answer 9] and invoices that clearly reveal Columbia was
purchasing asbestos-containing components, including gaskets and rope, for use on its boilers
through the mid 1980s, even as late as 1985 [Columbia Boiler Purchase Orders annexed hereto as
Exhibit 6].
C. Columbia had Knowledge of the Dangers of Asbestos Well Prior to and
Throughout the Time of Plaintiff’s Exposure
7. The evidence of Columbia’s reckless disregard for product users such as plaintiff is
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very clear, as its know of the dangers of asbestos since at least the 1960s. Its own corporate
representative testified and admitted that Columbia new of the dangers of asbestos in 1965 or 1966
when a representative from the International Steelworkers Union who attended monthly meetings
with Columbia, told them that the world has learned that “asbestos is hazardous.” [See Exh. 4, at 88,
89, 96, 97] Furthermore, in its answers to interrogatories, Columbia admitted that it became aware
of the hazards of asbestos exposure from the United Steelworkers Union “in the 1960s” [annexed
hereto as Exhibit 7 - Excerpt of Columbia’s 2006 Liability Interrogatory Responses, at Question
and Answer 61.]
9. Again, even after learning of the dangers of asbestos, Columbia’s person designated
as being most knowledgeable states they never even tested its boilers to determine if [asbestos] dust
could be released from the product when it was worked with. [See Exhibit 4, at 128, 129] This
complete disregard of clear warning shows a conscious indifference to the threat of the known
danger, in the face of actual awareness - that indicates the level of wanton conduct necessary to
sustain a claim for punitive damages in a tort action.
7. Coupling the forgoing facts demonstrating knowledge of the use of asbestos on its
boilers while knowing the dangers of asbestos since the mid-1960s, over two decades went by since
it learned of the dangers of asbestos and Columbia failed to take any action warning its customers
including Mr. Reynolds, that its equipment contained within [and had asbestos insulation applied to]
its boilers.
9. Columbia advances an evidentiary claim that effectively renders its motion one for
summary judgment [e.g., Tempesta Aff., (“The defendant’s action must amount to willful or wanton
negligence, or recklessness, or a conscious disregard of the rights of others”) (omitting citation,
markings)]. However, Columbia has wholly failed to meet its burden as a summary judgment
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movant, and therefore its motion as regards to punitive damages fails at the threshold. See In re
New York City Asbestos Litig.: Comeau v. W.R. Grace & Co., 216 AD2d 79, 80 (1st Dept 1995); see also
In re New York City Asbestos Litig.: DiSalvo v. A.O. Smith Water Prods., 123 AD3d 498, 499 (1st Dept
2014) (demonstrating, for the purposes of the present motion, that Columbia’s movant’s burden
was to establish initially that, based on the evidence, it could not be deemed to have acted in
reckless disregard of the safety or well-being of product users such as plaintiff).
10. Should the Court nevertheless reach Columbia’s substantive claim, the evidence of
its egregious failure, during the exposure period, to show any concern whatsoever, whether by
testing, inquiring, etc., about the safety hazards associated with use, installation, repair, or other
expected and normal handling of its product, coupled with its actual knowledge during that
exposure period of the ultrahazards, demonstrates at the very least factual issues precluding
Columbia from obtaining summary dismissal of plaintiff’s punitive damages claim.
5. Fairly recently, as Columbia acknowledges in its motion, as just cited, in Chauca v.
Abraham, 30 NY3d 325 (2017), the New York Court of Appeals reaffirmed the “common law
standard” governing the cognizability of a claim for punitive damages, namely, that “a plaintiff is
entitled to punitive damages where the wrongdoer’s actions amount to willful or wanton negligence,
or recklessness, or where there is a conscious disregard of the rights of others or conduct so
reckless as to amount to such disregard.” 30 NY3d at 329 (marking omitted).
6. The Court in Chauca quoted from and reaffirmed the common law standard
articulated in its prior decision in Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196 (1990),
an insurance dispute arising from products liability claims. In Home Ins., the Court reiterated that
“punitive damages are based on intentional actions or actions which, while not intentional, amount
to gross negligence, recklessness, or wantonness . . ., or conscious disregard of the rights of others
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or for conduct so reckless as to amount to such disregard” 75 NY2d at 200 (markings omitted).
7. The Court of Appeals in Home Ins derived its standard directly from the asbestos-
related action Racich v. Celotex Corp., 887 F.2d 393 (2d Cir. 1989), which sustained punitive damages
on the ground that the defendant’s misconduct had been shown to have been “wanton or reckless.”
887 F.2d at 397.
8. The First Department determinations in asbestos cases have established what sort
of proof provides an ample predicate to sustain the conclusion that defendant’s failure to warn may
be deemed to have been wanton or reckless. In In re New York City Asbestos Litig. (Konstantin), 121
AD3d 230 (1st Dept 2014), aff’d, 27 NY3d 1172 (2016), the First Department held:
It was also rational for the jury to conclude that TLC and Crane acted recklessly.
Konstantin adduced evidence that as early as 1969, five years before he began
working at any TLC work site, James Endler, a TLC corporate officer and the head
of construction, issued a letter admitting that asbestos fibers “had been proved to be
injurious to the health of those people exposed to them over prolonged periods of
time.” . . . TLC issued a press release for the Olympic Towers construction site, one
of the sites where Konstantin worked, advertising its development of a
“non-asbestos fire spray” to help protect construction workers from potential
health hazards. One can only conclude, then, that TLC had actual knowledge of the dangers of
asbestos.
121 AD3d at 247-48 (emphasis added).
9. As to the co-defendant in Konstantin, the First Department continued: “There was
also sufficient evidence showing Crane’s reckless disregard for the hazards posed by asbestos. The
evidence demonstrated that Crane had received warnings about the dangers of asbestos as early as
the 1930s from various trade associations, and Crane admitted it knew of the dangers of asbestos by
the early 1970s.” Id. at 248 (emphasis added).
10. Defendant’s reliance on In re New York City Asbestos Litig. (Maltese), 89 NY2d 955
(1997), is misplaced, because that opinion rested on the insufficiency on that one, particular record
of the proofs, which concerned general evidence of the risks of asbestos exposure solely under
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completely different conditions from those experienced by ordinary workers and end product users.
89 NY2d at 957.
11. Hence, in its Decision and Order in Murphy, entered a few months ago, the First
Department cited to Konstantin for the proposition that “[t]he jury’s finding of recklessness is
supported by legally sufficient evidence, and is not against the weight of the evidence.” Murphy, 173
AD3d at 530; see also In re New York City Asbestos Litig.: Idell v. Aerco Int’l, Inc., 164 AD3d 1128, 1129
(1st Dept 2018) (“Supreme Court properly charged the jury on the issue of recklessness. Based on
the circumstances of this case, which include plaintiff’s continued exposure to defendant’s valves
through 1986, there was sufficient evidence from which a jury could determine that defendant was
aware that workers such as plaintiff were at risk from exposure to asbestos”); cf. Tutino v. 425 Park
Ave. Co., 188 AD2d 434, 434 (1st Dept 1992) (“While punitive damages can be awarded for the
reckless creation of injury or danger . . ., the evidence adduced by plaintiff is insufficient to raise an
issue of recklessness. Assuming the truth of plaintiff’s averments, defendants’ conduct, at worst, can
only be characterized as negligent”).
12. This is not to say that, upon a full record at trial, there might not be some daylight
between a jury’s finding of recklessness and of entitlement to punitive damages. It is not necessarily
a logical truth that the former requires the latter. The court has post-trial discretion to determine
whether the evidence warrants a distinction. At the summary judgment stage, however, any
credible evidence of recklessness suffices to create a triable issue. See generally Marsh v. Arnot Ogden
Med. Ctr., 91 AD3d 1070, 1971 (3d Dept 2012) (reversing grant of summary judgment, reinstating
plaintiff’s punitive damages claim where defendant, “despite her knowledge of . . . the particular
risks . . ., did not come to the hospital to examine decedent . . . . A showing of malice or wrongful
intent is not required”).
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13. In that regard, were this Court to treat the present motion as one for summary
judgment, it is well established that summary judgment is a “drastic remedy” that must not be
granted if there is “any doubt” about the existence of a triable issue of fact. Reid v. Georgia Pacific
Corp., 212 AD2d 462 (1st Dept 1995). It is also settled New York summary judgment practice that,
even where the underlying facts are undisputed, but where those facts are susceptible of more than
one permissible inference, the choice between those inferences should not be made as a matter of
law, but should be submitted to the trier of fact. Ace Wire & Cable Co., v. Aetna Casualty & Surety
Co., 60 N.Y.2d 390, 401 (1983).
14. As the Appellate Division has emphasized, “punitive damages have been sanctioned
under New York law in actions based on negligence and strict liability.” Sclafani v. Brother Jimmy’s
BBQ, Inc., 88 A.D.3d 515, 516 (1st Dep’t 2011).
15. The United States Supreme Court has further explained that:
[p]unitive damages have long been a part of traditional state tort law. . . . Blackstone
appears to have noted their use. 3 W. BLACKSTONE, COMMENTARIES 137-38; see also
Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (the Lord Chief Justice
validating exemplary damages as compensation, punishment, and deterrence).
Among the first reported American cases are Genay v. Norris, 1 Bay 6 (S. C. 1784),
and Coryell v. Colbaugh, 1 N. J. L. 77 (1791).
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991)); see Sclafani v. Brother Jimmy’s BBQ, Inc., 88
A.D.3d 515, 516 (1st Dept 2011) (“The court also properly declined to dismiss plaintiff’s request for
punitive damages. Contrary to Bacardi’s contention, punitive damages have been sanctioned under
New York law in actions based on negligence and strict liability”) (omitting citation).
16. Accordingly, in accord with New York and nationwide jurisprudence governing
both pre-trial summary judgment practice and the punitive damages standard, it is clear that, at the
very least, the factual predicate exists so as to create genuine factual issues with regard to the
appropriateness of an assessment against Columbia of punitive damages. To the extent that
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defendant insists that its motion was merely one to dismiss on the pleadings, and that the court
should ignore the evidentiary showing, plaintiff respectfully submits that this response fails by virtue
of CPLR 3025, which liberally “authorizes courts to permit pleadings to be amended before or after
judgment to conform them to the evidence.” Gonfiantini v. Zino, 184 AD2d 368, 369 (1st Dept 1992).
However, as stated, the Court need not reach the substantive issue, because Columbia’s motion fails
at the threshold.
17. Turning to procedure, this Court has already rejected defendant’s procedural claims.
For all of the reasons stated in the Decision and Order of this Court in In re New York City Asbestos
Litig. (Carlstrand v. Burnham), Index № 190194/2017 (Sup. Ct. NY County, Aug. 1, 2019) [annexed as
Exhibit 8], plaintiff respectfully requests that Columbia’s present like motion be denied.
18. Defendant has been on actual notice of Plaintiffs’ intent to pursue punitive damages
for over two years-since the inception of this action. Indeed, plaintiff’s complaint, filed in March
2018, incorporates Standard Complaint № 7, which specifically demands punitive damages no less
than six times. See Standard Complaint № 7, ¶¶ 177, 183, 193, 204, 223, 232.
19. As stated in the opening section above, Columbia’s present motion implicitly
concedes and acknowledges its full notice of the claims alleged in the Standard Complaint, and
effectively concedes notice that these claims apply to it in this particularized action. Lest there
would be no reason for Columbia to have moved for the dismissal of the inapplicable causes of
action.
20. Columbia is also precluded from claiming any due process arguing as much because
the First Department has already placed its imprimatur upon the CMO, with careful consideration
and focus upon the provisions governing and pertaining to punitive damages.
21. Plaintiff complied with the CMO with regard to her entitlement to seek punitive
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damages, and Columbia fails to point to any specific protocol or rule otherwise.
22. Columbia’s claims about discovery, including the notion that the 1988 CMO is
controlling [Tempesta Aff.], are obscure and meritless [see Exh. 8].
23. Columbia’s motion claims that plaintiffs waived any punitive damages claim by
failing to assert “an intention to pursue punitive damages” so as to afford Columbia fair notice of
plaintiffs’ claim, but, as shown, that is plainly false, and rests on defendant’s interpretation of the
nature of pleading by complaint clearly set forth in the CMO as governing this litigation.
24. This Court has already soundly rejected Columbia’s further claim that “plaintiffs
cannot by permitted to pursue punitive damages in the within matter, as any attempt by plaintiffs to
seek punitive damages would violate the terms of the Case Management Order and Columbia
Boiler’s due process rights.” [Exh. 8, at 2].
25. In the final analysis, as this Court stated in In re New York City Asbestos Litig.
(Carlstrand v. Mannington Mills), Index № 190194/2017 (Sup. Ct. NY County, Aug. 1, 2019) [annexed
as Exhibit 9], “Plaintiff’s claim that defendant placed corporate profits above the health and safety
of [plaintiff] creates issues of fact on punitive damages warranting denial of summary judgment” [id.
at 2].
WHEREFORE, plaintiff respectfully requests that this Court deny defendant’s motion to
dismiss/for summary judgment in its entirety, except to the extent stated in Section A, and grant
such other and further relief that the Court deems just and proper.
Dated: New York, New York
November 14, 2019
Respectfully submitted,
WEITZ & LUXENBERG, P.C.
//ss// Patti Burshtyn
_________________________
VIA NYSCEF By: Patti Burshtyn, Esq.
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Ward Reynolds – IN Rider
As of 11/13/19
John Howarth Esq.
WILBRAHAM LAWLER & BUBA
1818 Market Street
Suite 3100
Philadelphia, PA 19103
(215) 564-4141
fax:(215) 564-4385
E-Mail: jhowarth@wlbdeflaw.com
Attorneys for Defendant:
AIR & LIQUID SYSTEMS CORPORATION,
as successor-by-merger to BUFFALO PUMPS, INC.
Anna DiLonardo Esq
Danielle Brooks
MARSHALL, DENNEHY, WARNER, COLEMAN & GOGGIN (LONG
105 Maxess Road
Suite 303
Melville, NY 11747
(631) 232-6130
fax:(631) 232-6184
E-Mail: AMDilonardo@mdwcg.com; dmbrooks@mdwcg.com
Attorneys for Defendant:
BMCE INC.,
f/k/a UNITED CENTRIFUGAL PUMP
Michael Tanenbaum Esq
TANENBAUM KEALE LLP
Three Gateway Center
Suite 1301
Newark, NJ 07102
(973) 242-0002
fax:(973) 242-8099
E-Mail: mtanenbaum@tktrial.com
Attorneys for Defendant:
CBS CORPORATION, f/k/a VIACOM INC.,
successor by merger to
CBS CORPORATION, f/k/a
WESTINGHOUSE ELECTRIC CORPORATION
GENERAL ELECTRIC COMPANY
Suzanne Halbardier Esq.
BARRY, MCTIERMAN & MOORE LLC
101 Greenwich Street
14th Floor
New York, NY 10006
(212) 313-3600
fax:(212) 608-8902
E-Mail: shalbardier@bmmfirm.com
Attorneys for Defendant:
CLEAVER BROOKS COMPANY, INC.
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Carol Tempesta esq
James Skelly Esq
MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C.
530 Saw Mill River Road
Suite 2
Elmsford, NY 10523
(914) 345-3701
fax:(914) 345-3743
E-Mail: ctempesta@moodklaw.com; jmskelly@moodklaw.com
Attorneys for Defendant:
COLUMBIA BOILER COMPANY OF POTTSTOWN
Kerryann Cook Esq
MCGIVNEY, KLUGER & COOK, P.C
80 Broad Street
23rd Floor
New York, NY 10004
(212) 509-3456
fax:(212) 509-4420
E-Mail: kcook@mklaw.us.com
Attorneys for Defendant:
COURTER & COMPANY INCORPORATED
George Hodges Esq
Kelly Hodges Esq
HODGES WALSH MESSEMER MOROKNEK, LLP
55 Church Street
Suite 211
White Plains, NY 10601
(914) 385-6000
fax:(914) 385-6060
E-Mail: Ghodges@hwm-law.com; khodges@hwb-lawfirm.com
Attorneys for Defendant:
ELECTROLUX HOME PRODUCTS, INC.
Individually, and as Successor to Tappan and Copes-Vulcan
SPIRAX SARCO, INC.
Individually and as successor to SARCO COMPANY
Nancy McDonald Esq.
MCELROY, DEUTCH, MULVANEY & CARPENTER LLP (NJ)
1300 Mount Kemble Avenue
P.O. Box 2075
Morristown, NJ 07962
(973) 425-8703
fax:(973) 425-0161
E-Mail: nmcdonald@mdmc-law.com
Attorneys for Defendant:
FLOWSERVE US, INC.
Individually and successor to Rockwell Manufacturing
Company, Edward Valve, Inc., Nordstrom Valves, Inc.,
Edward Vogt Valve Company, and Vogt Valve Company
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Christopher Hannan Esq
KELLEY JASONS MCGOWAN SPINELLI HANNA & REBER, LLP
120 Wall Street. 30th Floor
New York, NY 10005
(212) 344-7400
fax:(212) 344-7402
E-Mail: channan@kjmsh.com
Attorneys for Defendant:
FMC CORPORATION,
on behalf of its former CHICAGO PUMP
& NORTHERN PUMP BUSINESSES
Beth Hughes Esq
Brady Edwards Esq.
MORGAN LEWIS & BOCKIUS LLP
1000 Louisiana Street, Suite 4000
Houston, TX 77002
(212) 309-6000
fax:(212) 309-6001
E-Mail: beth.hughes@morganlewis.com;
brady.edwards@morganlewis.com
Attorneys for Defendant:
GOULDS PUMPS LLC
GRINNELL LLC
ITT LLC.,
Individually and as successor to BELL & GOSSETT
and as successor to KENNEDY VALVE
MANUFACTURING CO., Inc.
John Fanning Esq.
Raghu Bandlamudi Esq.
CULLEN AND DYKMAN, LLP
44 Wall Street
15th Floor
New York, NY 10005
(212) 732-2000
fax:(212) 742-2156
E-Mail: jfanning@cullenanddykman.com;
RBandlamudi@CullenandDykman.com
Attorneys for Defendant:
GOULDS PUMPS LLC
David O'Leary Esq
Donald Pugliese Esq.
Maria Osorio
MCDERMOTT, WILL & EMERY
340 Madison Avenue
14th Floor
NEW YORK, NY 10173
(212) 547-5400
fax:(212) 547-5444
E-Mail: doleary@mwe.com; DPUGLIESE@MWE.COM;Mosorio@mwe.com
Attorneys for Defendant:
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX
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Jeffrey Fegan Esq
Kevin Turbert Esq
Peter Dinunzio Esq.
CLYDE & CO US LLP
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, NY 10174
(212) 710-3900
fax:(212) 710-3950
E-Mail: jeffrey.fegan@clydeco.com; kevin.turbert@clydeco.us;
peter.dinunzio@clydeco.us
Attorneys for Defendant:
JENKINS BROS.
Legal Department
LIBERTY MUTUAL GROUP INC.
175 Berkeley Street
Boston, MA 02116
(617) 357-9500
fax:(603) 334-8087
Attorneys for Defendant:
JENKINS BROS.
Robert Malaby Esq
MALABY & BRADLEY LLC
150 Broadway, Suite 600
New York, NY 10038
(212) 791-0285
fax:(212) 791-0286
E-Mail: rcmalaby@malabylaw.com
Attorneys for Defendant:
SUPERIOR BOILER WORKS, INC.
Lawrence Lee Esq
Scott Emery Esq.
LYNCH, DASKAL EMERY LLP
137 West 25th Street
5th Floor
New York, NY 10001
(212) 710-0057
fax:(212) 302-2210
E-Mail: lee@lde.law; emery@lawlynch.com
Attorneys for Defendant:
THE GOODYEAR TIRE AND RUBBER COMPANY
Norman Senior Esq.
GREENFIELD, STEIN & SENIOR
600 Third Avenue, 11th Floor
New York, NY 10016
(212) 818-9600
fax:(212) 818-1264
E-Mail: NSENIOR@GSS-LAW.COM
Attorneys for Defendant:
U.S. RUBBER COMPANY (UNIROYAL)
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David Goodearl Esq.
Joseph Colao Esq.
LEADER BERKON COLAO & SILVERSTEIN LLP
630 Third Avenue
17th Floor
New York, NY 10017
(212) 486-2400
fax:(212) 486-3099
E-Mail: Dgoodearl@leaderberkon.com; jcolao@leaderberkon.com
Attorneys for Defendant:
WARREN PUMPS, LLC
Thomas Toman Esq
FORMAN PERRY WATKINS KRUTZ & TARDY LLP
328 Newman Springs Road
Red Bank, NJ 07701
(732) 212-9400
fax:(732) 852-4401
E-Mail: asbestosny@FORMANWATKINS.COM
Attorneys for Defendant:
WEYERHAEUSER COMPANY
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FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X IN RE NEW YORK CITY ASBESTOS LITIGATION ------------------------------------------------------------------------X CAROL REYNOLDS, as Executrix for the Estate of Index № 190352/2017 WARD A. REYNOLDS, and CAROL REYNOLDS, Individually, Plaintiffs, -against- A.O. SMITH WATER PRODUCTS CO., et al. Defendants. -------------------------------------------------------------------------X AFFIRMATION IN OPPOSITION TO COLUMBIA BOILER’s MOTION TO DISMISS THE PUNITIVE DAMAGES CLAIM STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) PATTI BURSHTYN, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am counsel with the law firm of Weitz & Luxenberg, P.C., attorneys for the plaintiff, and am familiar with the facts and circumstances. 2. I submit this affirmation in opposition to the motion to dismiss certain claims, and for other relief, filed by defendant Columbia Boiler Company of Pottstown (“Columbia”). A. Ward Reynolds Was Exposed to Asbestos While Working on Columbia Boilers 3. Ralph Reynolds, testified that he and his brother Ward worked together as steamfitter from 1965 to 1979. During this time frame they repaired Columbia boilers. [annexed 1 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 hereto as Exhibit 1, Ralph Reynold’s Deposition, at 671] Reynolds testified that the Columbia boilers he and Ward worked on were encased in asbestos. [Id. at 630]. In removing sections of the boilers to make repairs they would cut off the asbestos and “there was always a dust cloud that associated the action.” [Id. at 631]. B. Columbia had Knowledge of the Application of Asbestos Insulation to Columbia Boilers that was Foreseeable to Columbia at the Time of Plaintiff’s Exposure. 3. Columbia’s corporate representative, John Meade, Jr., who had been employed by Columbia since 1963, testified that Columbia knew its boilers were being insulated with asbestos in the field no later than the mid-1960s. 4. At his deposition, Mr. Meade, a Columbia employee since 1963, has testified as follows: Q: Are you aware of the practice of some plumbers of insulating the outside of boilers with asbestos? A: When they buy knockdown boilers, that’s correct. I am aware of that, yes. Q: What’s a knockdown boiler? A: The boiler is not completely packaged with the burner and jacket mounted. Q: And as I understand, that’s not what yours is. Yours is different than that? A: Ours was packaged. Our cast-iron boilers have always been packaged. Most of our steel fired residential boilers have always been packaged. There is occasion where a boiler would not maybe fit down a stairway where it would have been shipped in pieces and packaged separately. [annexed hereto as Exhibit 2 - October 24, 1994 Deposition of John J. Meade, Jr., at 25-26] 5. Though Mr. Meade intimates that it would be a rare instance where one of its boilers would be shipped in knockdown rather than packaged form, Columbia openly advertised -2- 2 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 that its “H.R.T. gas-oil fired boilers [were] available knocked down or packaged. [annexed hereto as Exhibit 3 - Product Brochure, “The Columbia H.R.T. Combination Gas-Oil Fired Boiler,” at 2.] Columbia has sold the H.R.T. series of boilers since [at least] 1969. [See Exhibit 1, at 66-67] With this in mind, Mr. Meade testified that the application of asbestos insulation to Columbia boilers was foreseeable to Columbia at the time of Mr. Reynolds’ exposure - from 1965 to 1975. (See Ex. 1) 6. In addition, Mr. Meade testified again stating again that it was foreseeable and common practice that its boilers would be insulated with asbestos as late as the 1970s. Q: You will agree with me, sir, won’t you, that it was foreseeable for knockdown units to be insulated with asbestos insulation in the 1960s? A: ... that was possible. Q: How about in 1970s? A: Much less likely in the ‘70s. I think more people we aware of the hazard, and it wasn’t the practice. It might have been earlier ...I don’t think there were very many in the ‘60s even, but there could have been. [annexed hereto as Exhibit 4 - relevant excerpts of August 3, 2010 Deposition of John J. Meade, Jr., at 129, 130] 6. Furthermore, Columbia admits in its interrogatory responses that “between 1983 and 1985” it made several purchases of asbestos rope and gaskets which it also incorporated into its boilers during that time period [annexed hereto as Exhibit 5 - Excerpt of Columbia’s 2016 Liability Interrogatories, at Question and Answer 9] and invoices that clearly reveal Columbia was purchasing asbestos-containing components, including gaskets and rope, for use on its boilers through the mid 1980s, even as late as 1985 [Columbia Boiler Purchase Orders annexed hereto as Exhibit 6]. C. Columbia had Knowledge of the Dangers of Asbestos Well Prior to and Throughout the Time of Plaintiff’s Exposure 7. The evidence of Columbia’s reckless disregard for product users such as plaintiff is -3- 3 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 very clear, as its know of the dangers of asbestos since at least the 1960s. Its own corporate representative testified and admitted that Columbia new of the dangers of asbestos in 1965 or 1966 when a representative from the International Steelworkers Union who attended monthly meetings with Columbia, told them that the world has learned that “asbestos is hazardous.” [See Exh. 4, at 88, 89, 96, 97] Furthermore, in its answers to interrogatories, Columbia admitted that it became aware of the hazards of asbestos exposure from the United Steelworkers Union “in the 1960s” [annexed hereto as Exhibit 7 - Excerpt of Columbia’s 2006 Liability Interrogatory Responses, at Question and Answer 61.] 9. Again, even after learning of the dangers of asbestos, Columbia’s person designated as being most knowledgeable states they never even tested its boilers to determine if [asbestos] dust could be released from the product when it was worked with. [See Exhibit 4, at 128, 129] This complete disregard of clear warning shows a conscious indifference to the threat of the known danger, in the face of actual awareness - that indicates the level of wanton conduct necessary to sustain a claim for punitive damages in a tort action. 7. Coupling the forgoing facts demonstrating knowledge of the use of asbestos on its boilers while knowing the dangers of asbestos since the mid-1960s, over two decades went by since it learned of the dangers of asbestos and Columbia failed to take any action warning its customers including Mr. Reynolds, that its equipment contained within [and had asbestos insulation applied to] its boilers. 9. Columbia advances an evidentiary claim that effectively renders its motion one for summary judgment [e.g., Tempesta Aff., (“The defendant’s action must amount to willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others”) (omitting citation, markings)]. However, Columbia has wholly failed to meet its burden as a summary judgment -4- 4 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 movant, and therefore its motion as regards to punitive damages fails at the threshold. See In re New York City Asbestos Litig.: Comeau v. W.R. Grace & Co., 216 AD2d 79, 80 (1st Dept 1995); see also In re New York City Asbestos Litig.: DiSalvo v. A.O. Smith Water Prods., 123 AD3d 498, 499 (1st Dept 2014) (demonstrating, for the purposes of the present motion, that Columbia’s movant’s burden was to establish initially that, based on the evidence, it could not be deemed to have acted in reckless disregard of the safety or well-being of product users such as plaintiff). 10. Should the Court nevertheless reach Columbia’s substantive claim, the evidence of its egregious failure, during the exposure period, to show any concern whatsoever, whether by testing, inquiring, etc., about the safety hazards associated with use, installation, repair, or other expected and normal handling of its product, coupled with its actual knowledge during that exposure period of the ultrahazards, demonstrates at the very least factual issues precluding Columbia from obtaining summary dismissal of plaintiff’s punitive damages claim. 5. Fairly recently, as Columbia acknowledges in its motion, as just cited, in Chauca v. Abraham, 30 NY3d 325 (2017), the New York Court of Appeals reaffirmed the “common law standard” governing the cognizability of a claim for punitive damages, namely, that “a plaintiff is entitled to punitive damages where the wrongdoer’s actions amount to willful or wanton negligence, or recklessness, or where there is a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” 30 NY3d at 329 (marking omitted). 6. The Court in Chauca quoted from and reaffirmed the common law standard articulated in its prior decision in Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196 (1990), an insurance dispute arising from products liability claims. In Home Ins., the Court reiterated that “punitive damages are based on intentional actions or actions which, while not intentional, amount to gross negligence, recklessness, or wantonness . . ., or conscious disregard of the rights of others -5- 5 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 or for conduct so reckless as to amount to such disregard” 75 NY2d at 200 (markings omitted). 7. The Court of Appeals in Home Ins derived its standard directly from the asbestos- related action Racich v. Celotex Corp., 887 F.2d 393 (2d Cir. 1989), which sustained punitive damages on the ground that the defendant’s misconduct had been shown to have been “wanton or reckless.” 887 F.2d at 397. 8. The First Department determinations in asbestos cases have established what sort of proof provides an ample predicate to sustain the conclusion that defendant’s failure to warn may be deemed to have been wanton or reckless. In In re New York City Asbestos Litig. (Konstantin), 121 AD3d 230 (1st Dept 2014), aff’d, 27 NY3d 1172 (2016), the First Department held: It was also rational for the jury to conclude that TLC and Crane acted recklessly. Konstantin adduced evidence that as early as 1969, five years before he began working at any TLC work site, James Endler, a TLC corporate officer and the head of construction, issued a letter admitting that asbestos fibers “had been proved to be injurious to the health of those people exposed to them over prolonged periods of time.” . . . TLC issued a press release for the Olympic Towers construction site, one of the sites where Konstantin worked, advertising its development of a “non-asbestos fire spray” to help protect construction workers from potential health hazards. One can only conclude, then, that TLC had actual knowledge of the dangers of asbestos. 121 AD3d at 247-48 (emphasis added). 9. As to the co-defendant in Konstantin, the First Department continued: “There was also sufficient evidence showing Crane’s reckless disregard for the hazards posed by asbestos. The evidence demonstrated that Crane had received warnings about the dangers of asbestos as early as the 1930s from various trade associations, and Crane admitted it knew of the dangers of asbestos by the early 1970s.” Id. at 248 (emphasis added). 10. Defendant’s reliance on In re New York City Asbestos Litig. (Maltese), 89 NY2d 955 (1997), is misplaced, because that opinion rested on the insufficiency on that one, particular record of the proofs, which concerned general evidence of the risks of asbestos exposure solely under -6- 6 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 completely different conditions from those experienced by ordinary workers and end product users. 89 NY2d at 957. 11. Hence, in its Decision and Order in Murphy, entered a few months ago, the First Department cited to Konstantin for the proposition that “[t]he jury’s finding of recklessness is supported by legally sufficient evidence, and is not against the weight of the evidence.” Murphy, 173 AD3d at 530; see also In re New York City Asbestos Litig.: Idell v. Aerco Int’l, Inc., 164 AD3d 1128, 1129 (1st Dept 2018) (“Supreme Court properly charged the jury on the issue of recklessness. Based on the circumstances of this case, which include plaintiff’s continued exposure to defendant’s valves through 1986, there was sufficient evidence from which a jury could determine that defendant was aware that workers such as plaintiff were at risk from exposure to asbestos”); cf. Tutino v. 425 Park Ave. Co., 188 AD2d 434, 434 (1st Dept 1992) (“While punitive damages can be awarded for the reckless creation of injury or danger . . ., the evidence adduced by plaintiff is insufficient to raise an issue of recklessness. Assuming the truth of plaintiff’s averments, defendants’ conduct, at worst, can only be characterized as negligent”). 12. This is not to say that, upon a full record at trial, there might not be some daylight between a jury’s finding of recklessness and of entitlement to punitive damages. It is not necessarily a logical truth that the former requires the latter. The court has post-trial discretion to determine whether the evidence warrants a distinction. At the summary judgment stage, however, any credible evidence of recklessness suffices to create a triable issue. See generally Marsh v. Arnot Ogden Med. Ctr., 91 AD3d 1070, 1971 (3d Dept 2012) (reversing grant of summary judgment, reinstating plaintiff’s punitive damages claim where defendant, “despite her knowledge of . . . the particular risks . . ., did not come to the hospital to examine decedent . . . . A showing of malice or wrongful intent is not required”). -7- 7 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 13. In that regard, were this Court to treat the present motion as one for summary judgment, it is well established that summary judgment is a “drastic remedy” that must not be granted if there is “any doubt” about the existence of a triable issue of fact. Reid v. Georgia Pacific Corp., 212 AD2d 462 (1st Dept 1995). It is also settled New York summary judgment practice that, even where the underlying facts are undisputed, but where those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. Ace Wire & Cable Co., v. Aetna Casualty & Surety Co., 60 N.Y.2d 390, 401 (1983). 14. As the Appellate Division has emphasized, “punitive damages have been sanctioned under New York law in actions based on negligence and strict liability.” Sclafani v. Brother Jimmy’s BBQ, Inc., 88 A.D.3d 515, 516 (1st Dep’t 2011). 15. The United States Supreme Court has further explained that: [p]unitive damages have long been a part of traditional state tort law. . . . Blackstone appears to have noted their use. 3 W. BLACKSTONE, COMMENTARIES 137-38; see also Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763) (the Lord Chief Justice validating exemplary damages as compensation, punishment, and deterrence). Among the first reported American cases are Genay v. Norris, 1 Bay 6 (S. C. 1784), and Coryell v. Colbaugh, 1 N. J. L. 77 (1791). Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991)); see Sclafani v. Brother Jimmy’s BBQ, Inc., 88 A.D.3d 515, 516 (1st Dept 2011) (“The court also properly declined to dismiss plaintiff’s request for punitive damages. Contrary to Bacardi’s contention, punitive damages have been sanctioned under New York law in actions based on negligence and strict liability”) (omitting citation). 16. Accordingly, in accord with New York and nationwide jurisprudence governing both pre-trial summary judgment practice and the punitive damages standard, it is clear that, at the very least, the factual predicate exists so as to create genuine factual issues with regard to the appropriateness of an assessment against Columbia of punitive damages. To the extent that -8- 8 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 defendant insists that its motion was merely one to dismiss on the pleadings, and that the court should ignore the evidentiary showing, plaintiff respectfully submits that this response fails by virtue of CPLR 3025, which liberally “authorizes courts to permit pleadings to be amended before or after judgment to conform them to the evidence.” Gonfiantini v. Zino, 184 AD2d 368, 369 (1st Dept 1992). However, as stated, the Court need not reach the substantive issue, because Columbia’s motion fails at the threshold. 17. Turning to procedure, this Court has already rejected defendant’s procedural claims. For all of the reasons stated in the Decision and Order of this Court in In re New York City Asbestos Litig. (Carlstrand v. Burnham), Index № 190194/2017 (Sup. Ct. NY County, Aug. 1, 2019) [annexed as Exhibit 8], plaintiff respectfully requests that Columbia’s present like motion be denied. 18. Defendant has been on actual notice of Plaintiffs’ intent to pursue punitive damages for over two years-since the inception of this action. Indeed, plaintiff’s complaint, filed in March 2018, incorporates Standard Complaint № 7, which specifically demands punitive damages no less than six times. See Standard Complaint № 7, ¶¶ 177, 183, 193, 204, 223, 232. 19. As stated in the opening section above, Columbia’s present motion implicitly concedes and acknowledges its full notice of the claims alleged in the Standard Complaint, and effectively concedes notice that these claims apply to it in this particularized action. Lest there would be no reason for Columbia to have moved for the dismissal of the inapplicable causes of action. 20. Columbia is also precluded from claiming any due process arguing as much because the First Department has already placed its imprimatur upon the CMO, with careful consideration and focus upon the provisions governing and pertaining to punitive damages. 21. Plaintiff complied with the CMO with regard to her entitlement to seek punitive -9- 9 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 damages, and Columbia fails to point to any specific protocol or rule otherwise. 22. Columbia’s claims about discovery, including the notion that the 1988 CMO is controlling [Tempesta Aff.], are obscure and meritless [see Exh. 8]. 23. Columbia’s motion claims that plaintiffs waived any punitive damages claim by failing to assert “an intention to pursue punitive damages” so as to afford Columbia fair notice of plaintiffs’ claim, but, as shown, that is plainly false, and rests on defendant’s interpretation of the nature of pleading by complaint clearly set forth in the CMO as governing this litigation. 24. This Court has already soundly rejected Columbia’s further claim that “plaintiffs cannot by permitted to pursue punitive damages in the within matter, as any attempt by plaintiffs to seek punitive damages would violate the terms of the Case Management Order and Columbia Boiler’s due process rights.” [Exh. 8, at 2]. 25. In the final analysis, as this Court stated in In re New York City Asbestos Litig. (Carlstrand v. Mannington Mills), Index № 190194/2017 (Sup. Ct. NY County, Aug. 1, 2019) [annexed as Exhibit 9], “Plaintiff’s claim that defendant placed corporate profits above the health and safety of [plaintiff] creates issues of fact on punitive damages warranting denial of summary judgment” [id. at 2]. WHEREFORE, plaintiff respectfully requests that this Court deny defendant’s motion to dismiss/for summary judgment in its entirety, except to the extent stated in Section A, and grant such other and further relief that the Court deems just and proper. Dated: New York, New York November 14, 2019 Respectfully submitted, WEITZ & LUXENBERG, P.C. //ss// Patti Burshtyn _________________________ VIA NYSCEF By: Patti Burshtyn, Esq. -10- 10 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 Ward Reynolds – IN Rider As of 11/13/19 John Howarth Esq. WILBRAHAM LAWLER & BUBA 1818 Market Street Suite 3100 Philadelphia, PA 19103 (215) 564-4141 fax:(215) 564-4385 E-Mail: jhowarth@wlbdeflaw.com Attorneys for Defendant: AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, INC. Anna DiLonardo Esq Danielle Brooks MARSHALL, DENNEHY, WARNER, COLEMAN & GOGGIN (LONG 105 Maxess Road Suite 303 Melville, NY 11747 (631) 232-6130 fax:(631) 232-6184 E-Mail: AMDilonardo@mdwcg.com; dmbrooks@mdwcg.com Attorneys for Defendant: BMCE INC., f/k/a UNITED CENTRIFUGAL PUMP Michael Tanenbaum Esq TANENBAUM KEALE LLP Three Gateway Center Suite 1301 Newark, NJ 07102 (973) 242-0002 fax:(973) 242-8099 E-Mail: mtanenbaum@tktrial.com Attorneys for Defendant: CBS CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION GENERAL ELECTRIC COMPANY Suzanne Halbardier Esq. BARRY, MCTIERMAN & MOORE LLC 101 Greenwich Street 14th Floor New York, NY 10006 (212) 313-3600 fax:(212) 608-8902 E-Mail: shalbardier@bmmfirm.com Attorneys for Defendant: CLEAVER BROOKS COMPANY, INC. Page 1 of 5 11 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 Carol Tempesta esq James Skelly Esq MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. 530 Saw Mill River Road Suite 2 Elmsford, NY 10523 (914) 345-3701 fax:(914) 345-3743 E-Mail: ctempesta@moodklaw.com; jmskelly@moodklaw.com Attorneys for Defendant: COLUMBIA BOILER COMPANY OF POTTSTOWN Kerryann Cook Esq MCGIVNEY, KLUGER & COOK, P.C 80 Broad Street 23rd Floor New York, NY 10004 (212) 509-3456 fax:(212) 509-4420 E-Mail: kcook@mklaw.us.com Attorneys for Defendant: COURTER & COMPANY INCORPORATED George Hodges Esq Kelly Hodges Esq HODGES WALSH MESSEMER MOROKNEK, LLP 55 Church Street Suite 211 White Plains, NY 10601 (914) 385-6000 fax:(914) 385-6060 E-Mail: Ghodges@hwm-law.com; khodges@hwb-lawfirm.com Attorneys for Defendant: ELECTROLUX HOME PRODUCTS, INC. Individually, and as Successor to Tappan and Copes-Vulcan SPIRAX SARCO, INC. Individually and as successor to SARCO COMPANY Nancy McDonald Esq. MCELROY, DEUTCH, MULVANEY & CARPENTER LLP (NJ) 1300 Mount Kemble Avenue P.O. Box 2075 Morristown, NJ 07962 (973) 425-8703 fax:(973) 425-0161 E-Mail: nmcdonald@mdmc-law.com Attorneys for Defendant: FLOWSERVE US, INC. Individually and successor to Rockwell Manufacturing Company, Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, and Vogt Valve Company Page 2 of 5 12 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 Christopher Hannan Esq KELLEY JASONS MCGOWAN SPINELLI HANNA & REBER, LLP 120 Wall Street. 30th Floor New York, NY 10005 (212) 344-7400 fax:(212) 344-7402 E-Mail: channan@kjmsh.com Attorneys for Defendant: FMC CORPORATION, on behalf of its former CHICAGO PUMP & NORTHERN PUMP BUSINESSES Beth Hughes Esq Brady Edwards Esq. MORGAN LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 (212) 309-6000 fax:(212) 309-6001 E-Mail: beth.hughes@morganlewis.com; brady.edwards@morganlewis.com Attorneys for Defendant: GOULDS PUMPS LLC GRINNELL LLC ITT LLC., Individually and as successor to BELL & GOSSETT and as successor to KENNEDY VALVE MANUFACTURING CO., Inc. John Fanning Esq. Raghu Bandlamudi Esq. CULLEN AND DYKMAN, LLP 44 Wall Street 15th Floor New York, NY 10005 (212) 732-2000 fax:(212) 742-2156 E-Mail: jfanning@cullenanddykman.com; RBandlamudi@CullenandDykman.com Attorneys for Defendant: GOULDS PUMPS LLC David O'Leary Esq Donald Pugliese Esq. Maria Osorio MCDERMOTT, WILL & EMERY 340 Madison Avenue 14th Floor NEW YORK, NY 10173 (212) 547-5400 fax:(212) 547-5444 E-Mail: doleary@mwe.com; DPUGLIESE@MWE.COM;Mosorio@mwe.com Attorneys for Defendant: HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX Page 3 of 5 13 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 Jeffrey Fegan Esq Kevin Turbert Esq Peter Dinunzio Esq. CLYDE & CO US LLP The Chrysler Building 405 Lexington Avenue, 16th Floor New York, NY 10174 (212) 710-3900 fax:(212) 710-3950 E-Mail: jeffrey.fegan@clydeco.com; kevin.turbert@clydeco.us; peter.dinunzio@clydeco.us Attorneys for Defendant: JENKINS BROS. Legal Department LIBERTY MUTUAL GROUP INC. 175 Berkeley Street Boston, MA 02116 (617) 357-9500 fax:(603) 334-8087 Attorneys for Defendant: JENKINS BROS. Robert Malaby Esq MALABY & BRADLEY LLC 150 Broadway, Suite 600 New York, NY 10038 (212) 791-0285 fax:(212) 791-0286 E-Mail: rcmalaby@malabylaw.com Attorneys for Defendant: SUPERIOR BOILER WORKS, INC. Lawrence Lee Esq Scott Emery Esq. LYNCH, DASKAL EMERY LLP 137 West 25th Street 5th Floor New York, NY 10001 (212) 710-0057 fax:(212) 302-2210 E-Mail: lee@lde.law; emery@lawlynch.com Attorneys for Defendant: THE GOODYEAR TIRE AND RUBBER COMPANY Norman Senior Esq. GREENFIELD, STEIN & SENIOR 600 Third Avenue, 11th Floor New York, NY 10016 (212) 818-9600 fax:(212) 818-1264 E-Mail: NSENIOR@GSS-LAW.COM Attorneys for Defendant: U.S. RUBBER COMPANY (UNIROYAL) Page 4 of 5 14 of 15 FILED: NEW YORK COUNTY CLERK 11/14/2019 06:43 PM INDEX NO. 190352/2017 NYSCEF DOC. NO. 322 RECEIVED NYSCEF: 11/14/2019 David Goodearl Esq. Joseph Colao Esq. LEADER BERKON COLAO & SILVERSTEIN LLP 630 Third Avenue 17th Floor New York, NY 10017 (212) 486-2400 fax:(212) 486-3099 E-Mail: Dgoodearl@leaderberkon.com; jcolao@leaderberkon.com Attorneys for Defendant: WARREN PUMPS, LLC Thomas Toman Esq FORMAN PERRY WATKINS KRUTZ & TARDY LLP 328 Newman Springs Road Red Bank, NJ 07701 (732) 212-9400 fax:(732) 852-4401 E-Mail: asbestosny@FORMANWATKINS.COM Attorneys for Defendant: WEYERHAEUSER COMPANY Page 5 of 5 15 of 15