On June 09, 2021 a
Motion-Secondary
was filed
involving a dispute between
Paula A. Karnisky His Spouse,
Paula A. Karnisky
His Spouse,
Robert A. Karnisky,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
Air & Liquid Systems Corporation
As Successor By Merger To Buffalo Pumps, Inc.,
Alray Construction Corp. F K A Hebert Construction Corp.,
Alray Construction Corp.
F K A Hebert Construction Corp.,
Armstrong International, Inc.,
Armstrong Pumps Inc.,
Aurora Pump Company,
Cleaver-Brooks, Inc. F K A Aqua-Chem, Inc.,
Cleaver-Brooks, Inc.
F K A Aqua-Chem, Inc.,
Clyde Union Inc. F K A Union Pump Company,
Clyde Union Inc.
F K A Union Pump Company,
Crane Co.,
Elmer W. Davis Inc.,
Flowserve Corporation F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Corporation
F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Us, Inc. Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Flowserve Us, Inc.
Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation Individually And As Successor To Northern Pump Company And Coffin,
Fmc Corporation
Individually And As Successor To Northern Pump Company And Coffin,
Foster Wheeler Llc,
Frontier Insulation Contractors, Inc. F K A Frontier Insulation And Asbestos, Inc.,
Frontier Insulation Contractors, Inc.
F K A Frontier Insulation And Asbestos, Inc.,
Gardner Denver, Inc.,
General Electric Company,
Goulds Pumps, Incorporated F K A Goulds Pumps Merger Corporation,
Goulds Pumps, Incorporated
F K A Goulds Pumps Merger Corporation,
Grinnell Llc,
Honeywell International Inc. F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Honeywell International Inc.
F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Imo Industries Inc. Individually And As Successor In Interest To Imo Delaval,
Imo Industries Inc.
Individually And As Successor In Interest To Imo Delaval,
Industrial Insulation Sales, Inc.,
Insulation Distributors, Inc.,
Itt Corporation F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Itt Corporation
F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Mader Capital, Inc.,
Mader Plastering Corp.,
Met-Pro Technologies Llc A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Met-Pro Technologies Llc
A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Neles-Jamesbury, Inc,
Pfaudler, Inc.,
R.E. Hebert And Company, Inc.,
Riley Power Inc. F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Riley Power Inc.
F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Rochester Acoustical Corp.,
Rochester Industrial Insulation, Inc.,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company, Inc.,
Spirax Sarco, Inc.
Individually And As Successor To Sarco Company, Inc.,
Spx Cooling Technologies, Inc. F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
Spx Cooling Technologies, Inc.
F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
The Mader Corporation,
The Marley-Wylain Company F K A Weil-Mclain,
The Marley-Wylain Company
F K A Weil-Mclain,
The William Powell Company,
Union Carbide Corporation,
Velan Valve Corp.,
Viacomcbs, Inc.,
Warren Pumps Llc,
Watts Water Technologies, Inc
F K A Watts Industries, Inc, Individually And As Successor To Mueller Steam Specialty Company,
Weir Valves & Controls Usa, Inc. D B A Atwood & Morrill Co., Inc.,
Weir Valves & Controls Usa, Inc.
D B A Atwood & Morrill Co., Inc.,
William Summerhays' Sons Corporation,
Zurn Industries, Llc Individually And As Successor In Interest To Erie City Iron Workers Corporation,
Zurn Industries, Llc
Individually And As Successor In Interest To Erie City Iron Workers Corporation,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM INDEX NO. E2021005118
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3217142
Book Page CIVIL
Return To: No. Pages: 49
MEAGAN ELIZABETH DEAN
AXA Tower 1 Instrument: MEMO OF LAW
100 Madison Street
Syracuse, NY 13202 Control #: 202210060437
Index #: E2021005118
Date: 10/06/2022
Karnisky, Robert A. Time: 11:53:45 AM
Karnisky, Paula A.
Air & Liquid Systems Corporation
Alray Construction Corp.
Armstrong International, Inc.
Armstrong Pumps Inc.
Aurora Pump Company
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
___________________________________________
ROBERT A. KARNISKY AND PAULA A. KARNISKY,
his spouse, FLOWSERVE
CORPORATION’S
Plaintiffs, MOTIONS IN LIMINE
vs. Index No.: E2021005118
AIR & LIQUID SYSTEMS CORPORATION as successor
by merger to BUFFALO PUMPS, INC., et al.,
Defendants.
____________________________________________
Defendant, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by
merger to Durco International (hereinafter “Flowserve”), submits this memorandum of law in
support of its motion in limine. Flowserve also reserves the right to make further in limine
applications up to, and including, the time of trial.
STATEMENT OF FACTS
Plaintiff, Robert Karnisky (hereinafter “Mr. Karnisky”), alleges his asbestosis derived
from asbestos exposure from a variety of products and equipment he encountered throughout the
course of his life. Specifically, Plaintiffs allege Mr. Karnisky’s asbestos exposure occurred
during construction work from approximately 1966 to 1967 and from his work as a union
pipefitter at Xerox from 1966 to 1985. As itpertains to Flowserve, Mr. Karnisky testified to
removing unidentified exterior insulation, internal packing, and flange gaskets on an unrecalled
number of Durco pumps while employed at Xerox.
ARGUMENT
Flowserve requests the Court order Plaintiffs, Plaintiffs’ attorneys, and any witnesses or
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other parties on their behalf in this matter, not to discuss in the presence of the jury any of the
matters set forth in the paragraphs below, until such matters have been first conferenced with the
Court, out of the presence of the jury, and a ruling made.
Flowserve further requests this Court preclude certain evidence and expert testimony
anticipated to be offered by Plaintiffs as set forth below.
1. THIS COURT SHOULD PRECLUDE ANY UNDISCLOSED MEDICAL
RECORDS
Flowserve moves this Court for an Order precluding any and all medical records not
previously disclosed by the date of jury selection from trial. CPLR §3101 mandates broad
disclosure of all items material and necessary to a person’s claims or defenses. The section
provides “[t]here shall be full disclosure of all matter material and necessary in the prosecution
or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director,
member, agent or employee of a party.” CPLR § 3101(a).
Where a party fails to disclose such material and necessary items, he is precluded from
relying on such items for a motion or at trial. Construction by Singletree, Inc. v. Lowe, 55 A.D.3d
861 (2d Dept. 2008) (precluding defendant from relying on previously undisclosed expert report
in opposition to motion for summary judgment); Bermejo v New York City Health & Hosps.
Corp., 135 A.D.3d 116 (2d Dept. 2015) (prohibiting the use of a previously undisclosed
recording at trial).
Accordingly, Plaintiffs may not submit any documents into evidence which were not
previously disclosed to defendants. This includes any treatment records of Mr. Karnisky.
Therefore, the Court should issue a ruling precluding Plaintiffs from presenting evidence or
discussion related to any previously undisclosed treatment or records of such treatment.
2. PRECLUDING EVIDENCE OF EMOTIONAL DISTRESS
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Flowserve moves this Court for an Order precluding Plaintiffs from putting forth
evidence of emotional distress of Mr. Karnisky’s family members, children, grandchildren, etc.,
and any other witnesses outside of Mr. Karnisky, alone.
Here, any evidence related to mental anguish suffered by Mr. Karnisky’s relatives is
minimally probative of the issues relating to his alleged asbestos exposure and his damages. Mr.
Karnisky’s entire medical history, alleged pain and suffering, treatment, symptoms, side effects,
and disease course, are contained within admissible medical records, thoroughly covered in Mr.
Karnisky’s previous testimony, will be fully explored at trial during Mr. Karnisky’s trial
testimony, and will be contained in admissible evidence.
Further, Mr. Karnisky has testified as to his alleged exposure, his medical history, and
alleged pain and suffering, and will have the opportunity to do so again at trial. Therefore, any
such testimony from any other non-party relative or associate, is prejudicially duplicative. Aside
from Mr. Karnisky’s testimony and evidence contained in his medical records, any other
witness’s “impressions” as to Mr. Karnisky’s physical and mental state are wholly irrelevant,
unnecessary, and offer no more than an opportunity for Plaintiffs to appeal to the emotions of the
jury.
Mr. Karnisky’s testimony, including his recorded video statement, and medical records,
constitute the best evidence concerning his alleged damages, and absent Plaintiffs showing
somehow his testimony and/or medical records cannot be relied upon at trial,the Court should
preclude any such testimony from other witnesses. Further, the mental impressions of the
aforementioned witnesses are irrelevant, cumulative, and equally prejudicial. See Dominick v.
Charles Millar & Son Co., 149 A.D.3d 1554, 1556 (4th Dept. 2017); see also Cor Can. Rd. Co.
LLC v. Dunn & Sgromo Engrs. PLLC, 34 A.D.3d 1364, 1365 (4th Dept. 2006)(excluding
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cumulative expert testimony).
Therefore, Flowserve requests the Court issue a ruling precluding Plaintiffs from
presenting any such evidence or testimony.
3. PRECLUDING REFERENCES TO ASBESTOS BANS
Flowserve moves the Court to issue an Order precluding Plaintiffs from admitting the
Consumer Products Safety Commission’s December 15, 1977 ban on the use of asbestos in
certain products (the “CPSC ban”) or publicizing it to the jury. See Consumer Patching
Compounds and Artificial Emberizing Materials (Embers and Ash) Containing Respirable Free-
Form Asbestos, 42 Fed. Reg. 63354 (Dec. 15, 1977) (codified at 16 C.F.R. § 1145.4 [2004]).
Flowserve anticipates Plaintiffs will seek to rely on the CPSC ban to support their
allegation asbestos exposure can cause mesothelioma generally and/or was a substantial
contributing factor in Mr. Karnisky’s alleged disease. As a threshold matter, the CPSC did not
apply to the products at issue relative to Flowserve. This fact alone should warrant granting
Flowserve’s application.
Assuming arguendo it does not, the Court should not admit the CPSC ban into evidence
or permit its publication. It does not cite any scientific research showing a causal link between
asbestos exposure of the kind in the case at bar and human mesothelioma. The events preceding
the CPSC ban demonstrate an outcome based on a risk-benefit analysis, which is irrelevant to the
jury’s causation determination at issue here. Admission of the CPSC ban into evidence risks
misleading and confusing the jury, risking deference to a perceived governmental body
conclusion on the issues of fact.
Additionally, the CPSC ban is inadmissible hearsay and is untrustworthy for the purpose
for which it is proffered. See In re Eighth Judicial District Asbestos Litigation, 576 N.Y.S.2d 757
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(Sup. Ct. Erie Co. 1991); Industrial Union Dept. v. American Petroleum Inst., 448 U.S.607, 656
(1980); Cramer v. Kuhns, 213 A.D. 2d. 131 (2d. Dept. 1995); City of New York v. Pullman, Inc.,
662 F.2d 910, 916 (2d Cir. 1981) (cert, denied sub non); Rockwell Int’l Corp. v. City of New
York, 454 U.S. 1164 (1982).
Similarly, Flowserve moves to preclude Plaintiffs from referring to, implicitly or
explicitly, an EPA “ban” on asbestos. The Court should preclude Plaintiffs from mentioning,
referencing, or introducing any evidence of the Environmental Protection Agency (“EPA”)
hearings on asbestos, the testimony presented at the EPA hearings and the EPA’s alleged “ban”
of products containing asbestos. Such references are inaccurate and irreparably prejudicial. The
EPA has not banned asbestos. Asbestos is still in use in various forms and the EPA’s attempt to
ban asbestos was specifically overruled in Corrosion Proof Fittings v. Environmental Protection
Agency, 947 F.2d 1201 (5th Cir. 1991).
Based on the foregoing, Flowserve request the court issue a ruling precluding Plaintiffs
from mentioning or publicizing any aspect of the CPSC or EPA “bans” on asbestos.
4. PRECLUDING EVIDENCE OF PRODUCTS NOT AT ISSUE
Flowserve requests the Court issue an Order precluding Plaintiffs from offering any
exhibits or information concerning any Flowserve products irrelevant to the facts of the present
case, including for the purposes of showing Flowserve as a “sophisticated corporation.”
Flowserve anticipates Plaintiffs will attempt to admit purported advertisements, catalogs,
manuals, memoranda, schematics, instruction manuals, and bulletins relating to Flowserve
products not at issue in this matter, including those several decades prior to and after Mr.
Karnisky’a alleged exposure involving Flowserve products, for the purposes of showing
Flowserve as a “sophisticated corporation” and thus, inferring a higher level of knowledge,
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notice, and duty of care. Plaintiffs have no foundation for many of these documents, save
“Flowserve ,” or another trade name associated with Flowserve, may appear on them. The mere
fact these exhibits reference “Flowserve” products is not an automatic basis for its admission,
nor probative of any relevant issues at bar.
Evidence is relevant if it has any tendency in reason to prove the existence of any
material fact. American Motorists Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 739
N.Y.S.2d 388 (2d Dept. 2002). The evidence must be probative of a material fact - that is, a fact
of consequence to the determination of an action. Martin, et al., NEW YORK EVIDENCE
HANDBOOK, at 108; See Matthews v. Scotia-Glenville School Sys., 94 A.D.2d 912, 912, (3d
Dept. 1983) app. denied, 60 N.Y.2d 559, (1983).
Issues should be tried upon their merits and on the evidence adduced. Where a trial
counsel deliberately injects prejudicial extraneous matters, it is impossible to determine the
impact on the jury’s determination and such conduct risks imperiling the any subsequent verdict.
Bowen v. Mahoney Coal Corp., 256 A.D.425 (1st Dept. 1939). Evidence is properly excluded
when ithas significant potential to unduly prejudice the defendant and when it is not centrally
relevant to issues in substantial dispute. Caster v. IncredaMeal, Inc., 238 A.D.2d 917, 918 (4th
Dept. 1997).
To be admissible, Plaintiffs must establish a proper foundation to demonstrate
authenticity, and then also demonstrate relevance to this particular case. The Court must view the
substance of these exhibits in light of the facts of this particular case. However, as irrelevant,
foundation-less hearsay, the aforementioned purported evidence simply does not have any
relevance to the facts before the Court, and instead serve to confuse the issues and mislead the
jury. Many exhibits are not authenticated, meaning any information to be gleaned from the
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documents is completely speculative and/or may not have been prepared by Flowserve. Many of
the exhibits are incomplete, meaning the selected pages provide a distorted view of the
Flowserve products and the work performed with them.
As referenced above, the exhibits date from periods wholly irrelevant to the period(s) Mr.
Karnisky allegedly worked around any Flowserve products. Moreover, Mr. Karnisky provided
no testimony as to working with the Flowserve products in the manner described in the exhibits.
Any attempt to introduce or rely upon them would permit Plaintiffs to “back door” their burden
of proof during their case in chief in the absence of better, relevant, and admissible evidence.
Such “evidence” is precisely the kind too “slight, remote, or conjectural to have any
legitimate influence in the determining the fact in issue.” Dermatossian v. New York City Tr.
Auth., 67 N.Y.2d 219, 223 (1986); Rivera v. New York City Transit Auth., 77 N.Y.2d 322, 329
(1991). Plaintiff’s failure to authenticate advertisements and photographs as to date of
manufacture of the product depicted renders the pictures inadmissible. Gibbons v. City of New
York, 200 Misc. 699, 700, (N.Y. Mun. Ct., Borough of Queens 1951). Accusations of taking
shortcuts (such as comparing Flowserve’s products to other notoriously cheap, defective, and
harmful products not at issue), are improperly prejudicial. See Gregware v. City of New York,
132 A.D.3d 51, 62 (1st Dept. 2015). Comparisons to other notorious conduct or products not in
the record are improper; designed to inflame or appeal to the passions of the jury and may not be
cured by instruction. See Bump v. Delaware, L & W.R. Co., 157 A.D. 102, 103 (3d Dept. 1913).
Such comments are improper, unprovoked, ill considered, out of place, illegitimate in nature, and
have no part in an honest argument. Id.
Flowserve respectfully submits any evidence or comments Plaintiffs may seek to
introduce which have no relevance, are incomplete, or not authenticated as those products or
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records actually encountered by Mr. Karnisky, in operation at his worksites during his relevant
work period(s), or are designed to inflame or appeal to the passions of the jury such as
notoriously defective products made by companies other than Flowserve, should not be admitted
at trial.
Therefore, Flowserve respectfully requests this Court issue a ruling precluding any such
evidence.
5. PRECLUDING PLAINTIFFS’ WITNESSES FROM RELYING ON CASE
REPORTS AS A BASIS FOR CAUSATION OR NOTICE
Flowserve moves the Court for an Order to preclude Plaintiffs’ witnesses from testifying
to, or otherwise relying upon, case reports as a basis for notice or causation.
Opinion evidence must be based on facts in the record or personally known to the
witness. Two limited exceptions to this rule are an expert may rely on out-of-court material if it
is the kind accepted in the profession as reliable in forming a professional opinion, or if it comes
from a witness subject to full cross-examination on the trial. Hambsch v. New York City Transit
Authority, 63 N.Y.2d 723 (1984); Borden v. Brady, 92 A.D.2d 983 (3d Dept. 1983); Gant v.
Novello, 302 A.D.2d 690, 695 (3d Dept. 2003).
Flowserve anticipates Plaintiffs will attempt to prove Flowserve knew or should have
known of alleged dangers of asbestos inhalation because of published case reports appearing in
medical literature. Individual case studies cannot provide a basis for a finding of causation
because they are scientifically unreliable and cannot provide evidence of notice because there is
no evidence Flowserve actually received, or was in a position to receive, the studies prior to Mr.
Karnisky’s alleged exposure. See Glastetter v. Novartis Pharmaceuticals Corp., 107 F. Supp. 2d
1015 (E.D. Mo. 2000); Hall v. Defendants Healthcare Corp., 947 F. Supp. 1387, 1411 (D. Or.
1996); Casey v. Ohio Medical Products, 877 F. Supp. 1380, 1385 (N.D. Cal. 1995). The problem
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with equating case reports with causation was succinctly described by the Court in Brumbaugh v.
Sandoz Pharm. Corp., 77 F. Supp. 3d 1153, 1156 (D. Mont. 1999):
Case reports . . . are compilations of occurrences, and have been
rejected as reliable scientific evidence . . . Neither case reports nor
adverse drug reaction reports contain scientific analysis with the
safeguards of a controlled experiment. Their most significant
analytical defect is they don’t isolate and investigate the effects of
alternative causation agents. They are compilations of reported
phenomena. Unlike epidemiological studies, they do not contain a
testable and systematic inquiry into the mechanism of causation. As
such they reflect reported data, not scientific methodology.
The U.S. District Court for the Eastern District of Louisiana has identified other
shortcomings of case studies or reports:
[C]ase studies suffer from methodological flaws. Case study
populations are frequently small, leaving open the real possibility
the findings are due to chance rather than to exposure to the
suspected substance. Another criticism is the symptoms are often
subjective on the part of the patient, susceptible to exaggeration or
outright falsity (particularly if litigation is contemplated). Another
problem affects Pick’s evidence is potential bias. Doctors who
specialize in certain conditions, such as Pick’s witnesses do with
regard to silicone-related ailments, attract patients with those
symptoms. When they engage in litigation or otherwise have their
livelihood dependent upon it, the danger of bias, conscious or
unconscious, increases. Finally, courts have frequently rejected case
studies as an insufficient basis to decide causation when they lack
control groups.
Pick v. American Medical Systems, Inc., 958 F. Supp. 1151, 1161-62 (E.D. La. 1992); see also,
Jones v. U.S., 933 F. Supp. 894, 899, aff’d 127 F.3d 1154 (9th Cir. 1997) (finding anecdotal case
reports are not derived through the scientific method and “fall short of the proven cause and
effect relationship is necessary.”).
Case reports or groups of case reports are insufficient proof of causation. Flowserve
submits because case reports and groups of case reports do not constitute proper epidemiological
studies are inadequate to prove causation, it follows they are also inadequate to prove notice of
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causation. The necessary predicate, a proven causal connection between asbestos and the
plaintiff disease, is absent in a case report. Consequently, Flowserve submits Plaintiffs’ experts
should not be permitted to testify case reports or studies appearing in medical literature prove
causation or constitute constructive notice of a causal connection between asbestos and Mr.
Karnisky’s disease.
Flowserve anticipates Plaintiffs will attempt to introduce into evidence numerous
“medical and scientific articles” in an attempt to prove Flowserve’s knowledge of asbestos-
related hazards. The articles are hearsay, and therefore, inadmissible.
Lastly, Flowserve anticipates Plaintiffs in opposition will attempt to dismiss the
foregoing motion based on their contention New York courts “routinely” admit the case reports
upon which their experts will attempt to rely as the kind relied upon in their profession(s).
However, to the direct contrary, New York courts preclude the precise kind of case
reports upon which Plaintiff seek to have their experts rely as scientifically unreliable. See
Coratti v. Wella Corp. 14 Misc.3d 1204(A) at 7-8 (Sup. Ct. N.Y. Co. 2006)(precluding case
reports relied upon by Plaintiff’s expert showing ‘chemical sensitivities’ of those in dissimilar
work occupations and environments than those of plaintiff as speculative and not reliable
scientific evidence of causation); Reeps v. BMW of N. America, LLC, 2012 N.Y. Misc. LEXIS
5788 (S. Ct. N.Y. County 2012)(trial order precluding expert causation opinion based on a
combination of case reports and epidemiological studies in toluene birth defect matter, as
showing, at best, association); Heckstall v. Pincus, 19 A.D.3d 203, 205 (1st Dept.
2005)(precluding expert opinions in prescription drug matter relying on case reports - “courts
have recognized that such observational studies or case reports are not generally accepted in the
scientific community on questions of causation”); Marsh v. Smyth, 12 A.D.3d 307, 312-313 (1st
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Dept. 2004)(the proffered expert opinion cannot be connected to existing data only by expert’s
ipse dixit and should be excluded when it does properly relate existing data, studies, or literature
to the Plaintiff’s situation); Pauling v. Orentreich Med. Group, 14 A.D.3d 357 (1st Dept.
2005)(expert reliance on his own unpersuasive observational case reports in facial drug injection
case failed to meet Frye test of admissibility to prove causation of ‘silicon toxicity’).
Based on the foregoing, Flowserve requests the Court issue an Order precluding Plaintiffs
and Plaintiffs’ witnesses from relying on case reports, as they are scientifically unreliable,
inadmissible hearsay, and insufficient to demonstrate actual or constructive notice.
6. PRECLUDING PLAINTIFFS FROM REFERRING TO MR. KARNISKY
AS A “VICTIM” OR “VICTIM OF ASBESTOS”
Flowserve requests the Court order Plaintiffs and Plaintiffs’ counsel to refrain from
referring to Mr. Karnisky as a “victim” or an “asbestos victim” at trial.Such references are
highly likely to unduly prejudice the jury’s ability to come to a fair and impartial disposition of
this matter.
Issues should be tried upon their merits and on the evidence adduced; where a trial
counsel deliberately injects prejudicial extraneous matters, it is impossible to determine the
impact on the jury’s determination and such conduct risks imperiling the any subsequent verdict.
Bowen v. Mahoney Coal Corp., 256 A.D. at 425.
Where a Plaintiffs’ counsel uses salacious, inflammatory, and erroneous terms in effort to
grasp for the minds of the jury, they are considered fundamental and “so contaminate” the trial to
constitute a denial of a defendant’s right to a fair trial. Baguiluk v. Weiss, 110 A.D.2d 284, 287
(3d Dept. 1985). Further, such remarks have a prejudicial effect upon the jury’s ability to
impartially discern the issues. See Parrish v. Sollecito, 280 F. Supp. 2d 145, 168 (S.D.N.Y.
2003); In re Joint E. & S. Dist. Asbestos Litig., 124 F.R.D. 538 (E.D.N.Y. 1989). Moreover, in
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such instances, using such terms as “victim” and “asbestos victim” constitutes an inadmissible
attempt to become an unsworn witness and render opinion testimony not otherwise in admissible
evidence. See Baguiluk v. Weiss, 110 A.D.2d at 285; see also Clarke v. New York City Transit
Auth., 174 A.D.2d 268, 276 (1st Dept. 1992); Bechard v. Eisinger, 105 A.D. 2d 939, 941 (3d
Dept. 1984); Kusisto v. McLean, 52 A.D.2d 674, 675 (3d Dept. 1976).
In the instance(s) such remarks are made, a mistrial is the appropriate remedy, as curative
instructions cannot neutralize the prejudice. Carter v. Antwi, 41 Misc.3d 1229(A) at 8 (S. Ct.
Kings Co. 2013)(J. Battaglia). Prejudice exists whether or not the comments are made as a part
of a pattern of misconduct, or in contravention of the Court’s instructions. Carter v. Antwi, 41
Misc.3d at 14.
Any such terms are conclusory, opinion evidence disguised as “fair comment,” and legal
conclusions constituting an unfair prejudice to Flowserve. As such, the Court must preclude
Plaintiffs and Plaintiffs’ counsel from using such terms in the presence of the jury at trial.
Flowserve anticipates Plaintiffs in opposition will request the Court reserve its decision
on the within motion, and other such “evidentiary” issues, until the issue(s) arise at trial.
However, trial courts in Upstate New York have granted similar in limine applications
addressing anticipated prejudicial remarks during the course of trial by a Plaintiffs’ counsel
and/or expert witnesses. See Mueller v. Elderwood Health Care at Oakwood, 31 Misc.3d
1210(A) at 37-38 (Sup. Ct. Erie Co. 2011)(J. Curran).
Accordingly, Flowserve respectfully requests the Court issue an Order prohibiting
Plaintiffs, Plaintiffs’ counsel, and Plaintiffs’ witnesses at trial from referring to Mr. Karnisky as a
“victim,” an “asbestos victim,” or any other such term aside from his legal name.
7. PRECLUDING POST-EXPOSURE EVIDENCE OR SUBSEQUENT
REMEDIAL MEASURES
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Any evidence post-dating Mr. Karnisky’s alleged Flowserve-related asbestos exposure is
irrelevant to prove matters properly in issue pertaining to Flowserve. See In re: Eighth Judicial
District Asbestos Litigation, 152 Misc. 2d 338 (Sup. Ct. Erie Co. 1991)(J. Kane).
Here, a primary issue is whether any defendants knew or should have known the products
used at the work sites at issue posed a hazard to persons such as Mr. Karnisky. However, a party
can be charged with no more knowledge than which exists at the time a product is manufactured.
See Carroll v. CBS Corp., 2015 N.Y. Misc. LEXIS 1131, at 4 (Sup. Ct., New York Cty. 2015);
Donuk v. Sears, Roebuck and Co., 15 Misc. 3d 1142(A), (Sup. Ct., Kings Cty. 2007)(J. Starkey);
Rainbow v. Albert Elia Building Co., Inc., 79 A.D.2d 287, 293 (4th Dept. 1981); Bolm v.
Triumph Corp., 71 A.D.2d 429, 437-38 (4th Dept. 1979).
The Court must also bar mentioning, referencing, or introducing evidence of any post-
exposure subsequent remedial measures or actions, as they are not admissible as to negligence or
culpable conduct. Evidence of subsequent measures is also not relevant on the issues of gross
negligence. Caprara v. Chrysler Corp., 71 A.D.2d 515 (3d Dept. 1979).
Any of Flowserve’s knowledge or actions after the last possible date Mr. Karnisky
alleged asbestos exposure to Flowserve products is irrelevant to any duty allegedly owed him
prior to or during the alleged exposure, including at times when such information was
unavailable, unknown, or undiscoverable by any reasonable means. As such, Plaintiffs’
anticipated attempt to introduce evidence showing Flowserve’s alleged hazards knowledge
subsequent to Mr. Karnisky’s last alleged Flowserve-related exposure, and evidence of
subsequent remedial measures, is prejudicial and improper.
Flowserve anticipates Plaintiffs may rely on Cover v. Cohen, 61 N.Y.2d 261 (1984) in
opposition. However, in Cover, the injury occurred after the creation of the bulletin at issue for
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admittance to evidence, not before. Therefore, Cover provides no predicate to oppose
Flowserve’s requested relief herein.
Accordingly, Flowserve respectfully requests this Court issue an Order prohibiting
Plaintiffs from showing any post-exposure evidence, in congruence with similar in limine
applications granti
Preview
FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM INDEX NO. E2021005118 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3217142 Book Page CIVIL Return To: No. Pages: 49 MEAGAN ELIZABETH DEAN AXA Tower 1 Instrument: MEMO OF LAW 100 Madison Street Syracuse, NY 13202 Control #: 202210060437 Index #: E2021005118 Date: 10/06/2022 Karnisky, Robert A. Time: 11:53:45 AM Karnisky, Paula A. Air & Liquid Systems Corporation Alray Construction Corp. Armstrong International, Inc. Armstrong Pumps Inc. Aurora Pump Company Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ___________________________________________ ROBERT A. KARNISKY AND PAULA A. KARNISKY, his spouse, FLOWSERVE CORPORATION’S Plaintiffs, MOTIONS IN LIMINE vs. Index No.: E2021005118 AIR & LIQUID SYSTEMS CORPORATION as successor by merger to BUFFALO PUMPS, INC., et al., Defendants. ____________________________________________ Defendant, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by merger to Durco International (hereinafter “Flowserve”), submits this memorandum of law in support of its motion in limine. Flowserve also reserves the right to make further in limine applications up to, and including, the time of trial. STATEMENT OF FACTS Plaintiff, Robert Karnisky (hereinafter “Mr. Karnisky”), alleges his asbestosis derived from asbestos exposure from a variety of products and equipment he encountered throughout the course of his life. Specifically, Plaintiffs allege Mr. Karnisky’s asbestos exposure occurred during construction work from approximately 1966 to 1967 and from his work as a union pipefitter at Xerox from 1966 to 1985. As itpertains to Flowserve, Mr. Karnisky testified to removing unidentified exterior insulation, internal packing, and flange gaskets on an unrecalled number of Durco pumps while employed at Xerox. ARGUMENT Flowserve requests the Court order Plaintiffs, Plaintiffs’ attorneys, and any witnesses or 1 2 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 other parties on their behalf in this matter, not to discuss in the presence of the jury any of the matters set forth in the paragraphs below, until such matters have been first conferenced with the Court, out of the presence of the jury, and a ruling made. Flowserve further requests this Court preclude certain evidence and expert testimony anticipated to be offered by Plaintiffs as set forth below. 1. THIS COURT SHOULD PRECLUDE ANY UNDISCLOSED MEDICAL RECORDS Flowserve moves this Court for an Order precluding any and all medical records not previously disclosed by the date of jury selection from trial. CPLR §3101 mandates broad disclosure of all items material and necessary to a person’s claims or defenses. The section provides “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party.” CPLR § 3101(a). Where a party fails to disclose such material and necessary items, he is precluded from relying on such items for a motion or at trial. Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dept. 2008) (precluding defendant from relying on previously undisclosed expert report in opposition to motion for summary judgment); Bermejo v New York City Health & Hosps. Corp., 135 A.D.3d 116 (2d Dept. 2015) (prohibiting the use of a previously undisclosed recording at trial). Accordingly, Plaintiffs may not submit any documents into evidence which were not previously disclosed to defendants. This includes any treatment records of Mr. Karnisky. Therefore, the Court should issue a ruling precluding Plaintiffs from presenting evidence or discussion related to any previously undisclosed treatment or records of such treatment. 2. PRECLUDING EVIDENCE OF EMOTIONAL DISTRESS 2 3 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 Flowserve moves this Court for an Order precluding Plaintiffs from putting forth evidence of emotional distress of Mr. Karnisky’s family members, children, grandchildren, etc., and any other witnesses outside of Mr. Karnisky, alone. Here, any evidence related to mental anguish suffered by Mr. Karnisky’s relatives is minimally probative of the issues relating to his alleged asbestos exposure and his damages. Mr. Karnisky’s entire medical history, alleged pain and suffering, treatment, symptoms, side effects, and disease course, are contained within admissible medical records, thoroughly covered in Mr. Karnisky’s previous testimony, will be fully explored at trial during Mr. Karnisky’s trial testimony, and will be contained in admissible evidence. Further, Mr. Karnisky has testified as to his alleged exposure, his medical history, and alleged pain and suffering, and will have the opportunity to do so again at trial. Therefore, any such testimony from any other non-party relative or associate, is prejudicially duplicative. Aside from Mr. Karnisky’s testimony and evidence contained in his medical records, any other witness’s “impressions” as to Mr. Karnisky’s physical and mental state are wholly irrelevant, unnecessary, and offer no more than an opportunity for Plaintiffs to appeal to the emotions of the jury. Mr. Karnisky’s testimony, including his recorded video statement, and medical records, constitute the best evidence concerning his alleged damages, and absent Plaintiffs showing somehow his testimony and/or medical records cannot be relied upon at trial,the Court should preclude any such testimony from other witnesses. Further, the mental impressions of the aforementioned witnesses are irrelevant, cumulative, and equally prejudicial. See Dominick v. Charles Millar & Son Co., 149 A.D.3d 1554, 1556 (4th Dept. 2017); see also Cor Can. Rd. Co. LLC v. Dunn & Sgromo Engrs. PLLC, 34 A.D.3d 1364, 1365 (4th Dept. 2006)(excluding 3 4 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 cumulative expert testimony). Therefore, Flowserve requests the Court issue a ruling precluding Plaintiffs from presenting any such evidence or testimony. 3. PRECLUDING REFERENCES TO ASBESTOS BANS Flowserve moves the Court to issue an Order precluding Plaintiffs from admitting the Consumer Products Safety Commission’s December 15, 1977 ban on the use of asbestos in certain products (the “CPSC ban”) or publicizing it to the jury. See Consumer Patching Compounds and Artificial Emberizing Materials (Embers and Ash) Containing Respirable Free- Form Asbestos, 42 Fed. Reg. 63354 (Dec. 15, 1977) (codified at 16 C.F.R. § 1145.4 [2004]). Flowserve anticipates Plaintiffs will seek to rely on the CPSC ban to support their allegation asbestos exposure can cause mesothelioma generally and/or was a substantial contributing factor in Mr. Karnisky’s alleged disease. As a threshold matter, the CPSC did not apply to the products at issue relative to Flowserve. This fact alone should warrant granting Flowserve’s application. Assuming arguendo it does not, the Court should not admit the CPSC ban into evidence or permit its publication. It does not cite any scientific research showing a causal link between asbestos exposure of the kind in the case at bar and human mesothelioma. The events preceding the CPSC ban demonstrate an outcome based on a risk-benefit analysis, which is irrelevant to the jury’s causation determination at issue here. Admission of the CPSC ban into evidence risks misleading and confusing the jury, risking deference to a perceived governmental body conclusion on the issues of fact. Additionally, the CPSC ban is inadmissible hearsay and is untrustworthy for the purpose for which it is proffered. See In re Eighth Judicial District Asbestos Litigation, 576 N.Y.S.2d 757 4 5 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 (Sup. Ct. Erie Co. 1991); Industrial Union Dept. v. American Petroleum Inst., 448 U.S.607, 656 (1980); Cramer v. Kuhns, 213 A.D. 2d. 131 (2d. Dept. 1995); City of New York v. Pullman, Inc., 662 F.2d 910, 916 (2d Cir. 1981) (cert, denied sub non); Rockwell Int’l Corp. v. City of New York, 454 U.S. 1164 (1982). Similarly, Flowserve moves to preclude Plaintiffs from referring to, implicitly or explicitly, an EPA “ban” on asbestos. The Court should preclude Plaintiffs from mentioning, referencing, or introducing any evidence of the Environmental Protection Agency (“EPA”) hearings on asbestos, the testimony presented at the EPA hearings and the EPA’s alleged “ban” of products containing asbestos. Such references are inaccurate and irreparably prejudicial. The EPA has not banned asbestos. Asbestos is still in use in various forms and the EPA’s attempt to ban asbestos was specifically overruled in Corrosion Proof Fittings v. Environmental Protection Agency, 947 F.2d 1201 (5th Cir. 1991). Based on the foregoing, Flowserve request the court issue a ruling precluding Plaintiffs from mentioning or publicizing any aspect of the CPSC or EPA “bans” on asbestos. 4. PRECLUDING EVIDENCE OF PRODUCTS NOT AT ISSUE Flowserve requests the Court issue an Order precluding Plaintiffs from offering any exhibits or information concerning any Flowserve products irrelevant to the facts of the present case, including for the purposes of showing Flowserve as a “sophisticated corporation.” Flowserve anticipates Plaintiffs will attempt to admit purported advertisements, catalogs, manuals, memoranda, schematics, instruction manuals, and bulletins relating to Flowserve products not at issue in this matter, including those several decades prior to and after Mr. Karnisky’a alleged exposure involving Flowserve products, for the purposes of showing Flowserve as a “sophisticated corporation” and thus, inferring a higher level of knowledge, 5 6 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 notice, and duty of care. Plaintiffs have no foundation for many of these documents, save “Flowserve ,” or another trade name associated with Flowserve, may appear on them. The mere fact these exhibits reference “Flowserve” products is not an automatic basis for its admission, nor probative of any relevant issues at bar. Evidence is relevant if it has any tendency in reason to prove the existence of any material fact. American Motorists Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 739 N.Y.S.2d 388 (2d Dept. 2002). The evidence must be probative of a material fact - that is, a fact of consequence to the determination of an action. Martin, et al., NEW YORK EVIDENCE HANDBOOK, at 108; See Matthews v. Scotia-Glenville School Sys., 94 A.D.2d 912, 912, (3d Dept. 1983) app. denied, 60 N.Y.2d 559, (1983). Issues should be tried upon their merits and on the evidence adduced. Where a trial counsel deliberately injects prejudicial extraneous matters, it is impossible to determine the impact on the jury’s determination and such conduct risks imperiling the any subsequent verdict. Bowen v. Mahoney Coal Corp., 256 A.D.425 (1st Dept. 1939). Evidence is properly excluded when ithas significant potential to unduly prejudice the defendant and when it is not centrally relevant to issues in substantial dispute. Caster v. IncredaMeal, Inc., 238 A.D.2d 917, 918 (4th Dept. 1997). To be admissible, Plaintiffs must establish a proper foundation to demonstrate authenticity, and then also demonstrate relevance to this particular case. The Court must view the substance of these exhibits in light of the facts of this particular case. However, as irrelevant, foundation-less hearsay, the aforementioned purported evidence simply does not have any relevance to the facts before the Court, and instead serve to confuse the issues and mislead the jury. Many exhibits are not authenticated, meaning any information to be gleaned from the 6 7 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 documents is completely speculative and/or may not have been prepared by Flowserve. Many of the exhibits are incomplete, meaning the selected pages provide a distorted view of the Flowserve products and the work performed with them. As referenced above, the exhibits date from periods wholly irrelevant to the period(s) Mr. Karnisky allegedly worked around any Flowserve products. Moreover, Mr. Karnisky provided no testimony as to working with the Flowserve products in the manner described in the exhibits. Any attempt to introduce or rely upon them would permit Plaintiffs to “back door” their burden of proof during their case in chief in the absence of better, relevant, and admissible evidence. Such “evidence” is precisely the kind too “slight, remote, or conjectural to have any legitimate influence in the determining the fact in issue.” Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 223 (1986); Rivera v. New York City Transit Auth., 77 N.Y.2d 322, 329 (1991). Plaintiff’s failure to authenticate advertisements and photographs as to date of manufacture of the product depicted renders the pictures inadmissible. Gibbons v. City of New York, 200 Misc. 699, 700, (N.Y. Mun. Ct., Borough of Queens 1951). Accusations of taking shortcuts (such as comparing Flowserve’s products to other notoriously cheap, defective, and harmful products not at issue), are improperly prejudicial. See Gregware v. City of New York, 132 A.D.3d 51, 62 (1st Dept. 2015). Comparisons to other notorious conduct or products not in the record are improper; designed to inflame or appeal to the passions of the jury and may not be cured by instruction. See Bump v. Delaware, L & W.R. Co., 157 A.D. 102, 103 (3d Dept. 1913). Such comments are improper, unprovoked, ill considered, out of place, illegitimate in nature, and have no part in an honest argument. Id. Flowserve respectfully submits any evidence or comments Plaintiffs may seek to introduce which have no relevance, are incomplete, or not authenticated as those products or 7 8 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 records actually encountered by Mr. Karnisky, in operation at his worksites during his relevant work period(s), or are designed to inflame or appeal to the passions of the jury such as notoriously defective products made by companies other than Flowserve, should not be admitted at trial. Therefore, Flowserve respectfully requests this Court issue a ruling precluding any such evidence. 5. PRECLUDING PLAINTIFFS’ WITNESSES FROM RELYING ON CASE REPORTS AS A BASIS FOR CAUSATION OR NOTICE Flowserve moves the Court for an Order to preclude Plaintiffs’ witnesses from testifying to, or otherwise relying upon, case reports as a basis for notice or causation. Opinion evidence must be based on facts in the record or personally known to the witness. Two limited exceptions to this rule are an expert may rely on out-of-court material if it is the kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on the trial. Hambsch v. New York City Transit Authority, 63 N.Y.2d 723 (1984); Borden v. Brady, 92 A.D.2d 983 (3d Dept. 1983); Gant v. Novello, 302 A.D.2d 690, 695 (3d Dept. 2003). Flowserve anticipates Plaintiffs will attempt to prove Flowserve knew or should have known of alleged dangers of asbestos inhalation because of published case reports appearing in medical literature. Individual case studies cannot provide a basis for a finding of causation because they are scientifically unreliable and cannot provide evidence of notice because there is no evidence Flowserve actually received, or was in a position to receive, the studies prior to Mr. Karnisky’s alleged exposure. See Glastetter v. Novartis Pharmaceuticals Corp., 107 F. Supp. 2d 1015 (E.D. Mo. 2000); Hall v. Defendants Healthcare Corp., 947 F. Supp. 1387, 1411 (D. Or. 1996); Casey v. Ohio Medical Products, 877 F. Supp. 1380, 1385 (N.D. Cal. 1995). The problem 8 9 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 with equating case reports with causation was succinctly described by the Court in Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp. 3d 1153, 1156 (D. Mont. 1999): Case reports . . . are compilations of occurrences, and have been rejected as reliable scientific evidence . . . Neither case reports nor adverse drug reaction reports contain scientific analysis with the safeguards of a controlled experiment. Their most significant analytical defect is they don’t isolate and investigate the effects of alternative causation agents. They are compilations of reported phenomena. Unlike epidemiological studies, they do not contain a testable and systematic inquiry into the mechanism of causation. As such they reflect reported data, not scientific methodology. The U.S. District Court for the Eastern District of Louisiana has identified other shortcomings of case studies or reports: [C]ase studies suffer from methodological flaws. Case study populations are frequently small, leaving open the real possibility the findings are due to chance rather than to exposure to the suspected substance. Another criticism is the symptoms are often subjective on the part of the patient, susceptible to exaggeration or outright falsity (particularly if litigation is contemplated). Another problem affects Pick’s evidence is potential bias. Doctors who specialize in certain conditions, such as Pick’s witnesses do with regard to silicone-related ailments, attract patients with those symptoms. When they engage in litigation or otherwise have their livelihood dependent upon it, the danger of bias, conscious or unconscious, increases. Finally, courts have frequently rejected case studies as an insufficient basis to decide causation when they lack control groups. Pick v. American Medical Systems, Inc., 958 F. Supp. 1151, 1161-62 (E.D. La. 1992); see also, Jones v. U.S., 933 F. Supp. 894, 899, aff’d 127 F.3d 1154 (9th Cir. 1997) (finding anecdotal case reports are not derived through the scientific method and “fall short of the proven cause and effect relationship is necessary.”). Case reports or groups of case reports are insufficient proof of causation. Flowserve submits because case reports and groups of case reports do not constitute proper epidemiological studies are inadequate to prove causation, it follows they are also inadequate to prove notice of 9 10 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 causation. The necessary predicate, a proven causal connection between asbestos and the plaintiff disease, is absent in a case report. Consequently, Flowserve submits Plaintiffs’ experts should not be permitted to testify case reports or studies appearing in medical literature prove causation or constitute constructive notice of a causal connection between asbestos and Mr. Karnisky’s disease. Flowserve anticipates Plaintiffs will attempt to introduce into evidence numerous “medical and scientific articles” in an attempt to prove Flowserve’s knowledge of asbestos- related hazards. The articles are hearsay, and therefore, inadmissible. Lastly, Flowserve anticipates Plaintiffs in opposition will attempt to dismiss the foregoing motion based on their contention New York courts “routinely” admit the case reports upon which their experts will attempt to rely as the kind relied upon in their profession(s). However, to the direct contrary, New York courts preclude the precise kind of case reports upon which Plaintiff seek to have their experts rely as scientifically unreliable. See Coratti v. Wella Corp. 14 Misc.3d 1204(A) at 7-8 (Sup. Ct. N.Y. Co. 2006)(precluding case reports relied upon by Plaintiff’s expert showing ‘chemical sensitivities’ of those in dissimilar work occupations and environments than those of plaintiff as speculative and not reliable scientific evidence of causation); Reeps v. BMW of N. America, LLC, 2012 N.Y. Misc. LEXIS 5788 (S. Ct. N.Y. County 2012)(trial order precluding expert causation opinion based on a combination of case reports and epidemiological studies in toluene birth defect matter, as showing, at best, association); Heckstall v. Pincus, 19 A.D.3d 203, 205 (1st Dept. 2005)(precluding expert opinions in prescription drug matter relying on case reports - “courts have recognized that such observational studies or case reports are not generally accepted in the scientific community on questions of causation”); Marsh v. Smyth, 12 A.D.3d 307, 312-313 (1st 10 11 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 Dept. 2004)(the proffered expert opinion cannot be connected to existing data only by expert’s ipse dixit and should be excluded when it does properly relate existing data, studies, or literature to the Plaintiff’s situation); Pauling v. Orentreich Med. Group, 14 A.D.3d 357 (1st Dept. 2005)(expert reliance on his own unpersuasive observational case reports in facial drug injection case failed to meet Frye test of admissibility to prove causation of ‘silicon toxicity’). Based on the foregoing, Flowserve requests the Court issue an Order precluding Plaintiffs and Plaintiffs’ witnesses from relying on case reports, as they are scientifically unreliable, inadmissible hearsay, and insufficient to demonstrate actual or constructive notice. 6. PRECLUDING PLAINTIFFS FROM REFERRING TO MR. KARNISKY AS A “VICTIM” OR “VICTIM OF ASBESTOS” Flowserve requests the Court order Plaintiffs and Plaintiffs’ counsel to refrain from referring to Mr. Karnisky as a “victim” or an “asbestos victim” at trial.Such references are highly likely to unduly prejudice the jury’s ability to come to a fair and impartial disposition of this matter. Issues should be tried upon their merits and on the evidence adduced; where a trial counsel deliberately injects prejudicial extraneous matters, it is impossible to determine the impact on the jury’s determination and such conduct risks imperiling the any subsequent verdict. Bowen v. Mahoney Coal Corp., 256 A.D. at 425. Where a Plaintiffs’ counsel uses salacious, inflammatory, and erroneous terms in effort to grasp for the minds of the jury, they are considered fundamental and “so contaminate” the trial to constitute a denial of a defendant’s right to a fair trial. Baguiluk v. Weiss, 110 A.D.2d 284, 287 (3d Dept. 1985). Further, such remarks have a prejudicial effect upon the jury’s ability to impartially discern the issues. See Parrish v. Sollecito, 280 F. Supp. 2d 145, 168 (S.D.N.Y. 2003); In re Joint E. & S. Dist. Asbestos Litig., 124 F.R.D. 538 (E.D.N.Y. 1989). Moreover, in 11 12 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 such instances, using such terms as “victim” and “asbestos victim” constitutes an inadmissible attempt to become an unsworn witness and render opinion testimony not otherwise in admissible evidence. See Baguiluk v. Weiss, 110 A.D.2d at 285; see also Clarke v. New York City Transit Auth., 174 A.D.2d 268, 276 (1st Dept. 1992); Bechard v. Eisinger, 105 A.D. 2d 939, 941 (3d Dept. 1984); Kusisto v. McLean, 52 A.D.2d 674, 675 (3d Dept. 1976). In the instance(s) such remarks are made, a mistrial is the appropriate remedy, as curative instructions cannot neutralize the prejudice. Carter v. Antwi, 41 Misc.3d 1229(A) at 8 (S. Ct. Kings Co. 2013)(J. Battaglia). Prejudice exists whether or not the comments are made as a part of a pattern of misconduct, or in contravention of the Court’s instructions. Carter v. Antwi, 41 Misc.3d at 14. Any such terms are conclusory, opinion evidence disguised as “fair comment,” and legal conclusions constituting an unfair prejudice to Flowserve. As such, the Court must preclude Plaintiffs and Plaintiffs’ counsel from using such terms in the presence of the jury at trial. Flowserve anticipates Plaintiffs in opposition will request the Court reserve its decision on the within motion, and other such “evidentiary” issues, until the issue(s) arise at trial. However, trial courts in Upstate New York have granted similar in limine applications addressing anticipated prejudicial remarks during the course of trial by a Plaintiffs’ counsel and/or expert witnesses. See Mueller v. Elderwood Health Care at Oakwood, 31 Misc.3d 1210(A) at 37-38 (Sup. Ct. Erie Co. 2011)(J. Curran). Accordingly, Flowserve respectfully requests the Court issue an Order prohibiting Plaintiffs, Plaintiffs’ counsel, and Plaintiffs’ witnesses at trial from referring to Mr. Karnisky as a “victim,” an “asbestos victim,” or any other such term aside from his legal name. 7. PRECLUDING POST-EXPOSURE EVIDENCE OR SUBSEQUENT REMEDIAL MEASURES 12 13 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 Any evidence post-dating Mr. Karnisky’s alleged Flowserve-related asbestos exposure is irrelevant to prove matters properly in issue pertaining to Flowserve. See In re: Eighth Judicial District Asbestos Litigation, 152 Misc. 2d 338 (Sup. Ct. Erie Co. 1991)(J. Kane). Here, a primary issue is whether any defendants knew or should have known the products used at the work sites at issue posed a hazard to persons such as Mr. Karnisky. However, a party can be charged with no more knowledge than which exists at the time a product is manufactured. See Carroll v. CBS Corp., 2015 N.Y. Misc. LEXIS 1131, at 4 (Sup. Ct., New York Cty. 2015); Donuk v. Sears, Roebuck and Co., 15 Misc. 3d 1142(A), (Sup. Ct., Kings Cty. 2007)(J. Starkey); Rainbow v. Albert Elia Building Co., Inc., 79 A.D.2d 287, 293 (4th Dept. 1981); Bolm v. Triumph Corp., 71 A.D.2d 429, 437-38 (4th Dept. 1979). The Court must also bar mentioning, referencing, or introducing evidence of any post- exposure subsequent remedial measures or actions, as they are not admissible as to negligence or culpable conduct. Evidence of subsequent measures is also not relevant on the issues of gross negligence. Caprara v. Chrysler Corp., 71 A.D.2d 515 (3d Dept. 1979). Any of Flowserve’s knowledge or actions after the last possible date Mr. Karnisky alleged asbestos exposure to Flowserve products is irrelevant to any duty allegedly owed him prior to or during the alleged exposure, including at times when such information was unavailable, unknown, or undiscoverable by any reasonable means. As such, Plaintiffs’ anticipated attempt to introduce evidence showing Flowserve’s alleged hazards knowledge subsequent to Mr. Karnisky’s last alleged Flowserve-related exposure, and evidence of subsequent remedial measures, is prejudicial and improper. Flowserve anticipates Plaintiffs may rely on Cover v. Cohen, 61 N.Y.2d 261 (1984) in opposition. However, in Cover, the injury occurred after the creation of the bulletin at issue for 13 14 of 49 202210060437 10/06/2022 11:53:45 AM CIVIL 202210060437 INDEX NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 11:51 AM NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 10/06/2022 admittance to evidence, not before. Therefore, Cover provides no predicate to oppose Flowserve’s requested relief herein. Accordingly, Flowserve respectfully requests this Court issue an Order prohibiting Plaintiffs from showing any post-exposure evidence, in congruence with similar in limine applications granti