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 05:35 PM INDEX NO. E2021005118
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3218162
Book Page CIVIL
Return To: No. Pages: 21
THUY T. BUI
1177 Avenue of the Americas Instrument: MISCELLANEOUS DOCUMENT
41st Floor
New York, NY 10036 Control #: 202210061472
Index #: E2021005118
Date: 10/06/2022
Karnisky, Robert A. Time: 5:36:56 PM
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 21
202210061472 Index #
INDEX : E2021005118
NO. E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
X
ROBERT A. KARNISKY, and PAULA A. :
KARNISKY, his spouse, : Index No. E2021/005118
:
Plaintiffs, :
:
-against- :
:
AIR & LIQUID SYSTEMS CORPORATION :
as successor by merger to, BUFFALO :
PUMPS, INC., et al., :
:
Defendants. X
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NELES-JAMESBURY,
INC.’S OMNIBUS MOTION IN LIMINE SEEKING VARIOUS PRETRIAL RELIEF
Faegre Drinker Biddle & Reath
LLP
1177 Avenue of the Americas
41st Floor
New York, NY 10036-2714
Tel: (212) 248-3140
Fax: (212) 248-3141
Attorneys for Defendant
Neles-Jamesbury, Inc.
2 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
I. INTRODUCTION
This personal injury action arises out of Robert Karnisky’s alleged exposure to asbestos
and asbestos-containing products.
Neles-Jamesbury seeks an order in limine to:
a. Exclude lay opinions regarding asbestos, purported asbestos-related
diseases, and knowledge of alleged dangers of asbestos;
b. Exclude inadmissible lay testimony regarding the chemical composition of
products;
c. Exclude punitive damages; or in the alternative,
d. Bifurcate trial of punitive damages issues;
e. Prohibit the use of terms or labels “asbestos industry” or “member of the
asbestos industry” in the presence of the jury;
f. Exclude evidence of liability insurance;
g. Exclude all references to products not at issue;
h. Preclude all references to other lawsuits involving Neles-Jamesbury; and
i. For such other relief as the court deems just and proper.
II. ARGUMENT
A. EXCLUSION OF LAY OPINIONS REGARDING ASBESTOS, PURPORTED
ASBESTOS-RELATED DISEASES, AND KNOWLEDGE OF ALLEGED
DANGERS OF ASBESTOS
1. Lay Opinions Regarding Causation and Other Issues Are Inadmissible
“The lay opinion rule requires the ordinary lay witness to confine his testimony to the facts,
and to exclude his conclusions or opinions. The rule is founded on the premise that, since it is the
sole province of the jury to draw inferences from facts, admission of opinion testimony would
usurp the jury’s fact finding function.” People v. Sanchez, 492 N.Y.S.2d 683, 684 (Sup. Ct. Bronx
Cnty. 1985) (internal citations omitted); see also Morehouse v. Matthews, 2 N.Y. 514, 515-16
2
3 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
(1849) (“[W]itnesses must be confined to the communication of facts, and not opinions or
conclusions which they may have formed from facts, whether known to themselves, or derived
from the testimony of others. It is the special duty of the jury to draw conclusions, and not of the
witness.” (Emphasis in original)); Dombrowski v. Moore, 752 N.Y.S.2d 183, 185 (4th Dep’t 2002)
(Lay witnesses “may only testify concerning facts and not to their opinions and conclusions drawn
from the facts.” (Internal citations and quotation marks omitted)).
If a witness is not testifying as an expert, his testimony in the form of an opinion is limited
to those cases where “(1) th[e] facts which constitute the opinion are incapable of description; (2)
the subject matter does not require expert knowledge; and (3) the witness is qualified to give his
opinion.” Sanchez, 492 N.Y.S. at 684 (citation omitted). Thus, “opinions of ordinary witnesses
have been admitted regarding matters of taste, smell, touch, color, weight, size, quantity, velocity,
heat, cold, sickness, health, excitement, intoxication and disposition,” and “[i]nferences of identity
as to race, language, visibility and sounds have likewise been received.” Id. (citations omitted).
Permissible testimony on such matters ends where the witness seeks to testify about an area calling
for special knowledge, which it is not shown that he possesses. See, e.g., Larsen v. Vigliarolo
Bros., Inc., 429 N.Y.S.2d 273, 274-75 (2d Dep’t 1980).
Testimony regarding medical causation by one not qualified to offer expert opinions is
inadmissible lay opinion. See People v. Lapan, 734 N.Y.S.2d 648, 651 (3d Dep’t 2001) (“[T]he
progression from injury to death, often unseen and not readily comprehended, will generally be a
subject for expert medical opinion.” (Citation omitted)). Medical causation in particular is a
subject exclusively within the province of qualified medical experts, not lay witnesses. See id.;
see also Olson v. Brenntag North Am., Inc., 62 Misc. 3d 1228(A), No. 190328/2017, at *6 (Sup.
Ct. N.Y. Cnty. 2019) (“matters such as medical causation . . . ordinarily lie within the province
3
4 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
only of an expert rather than lay witness”); SZ Med. P.C. v. Country-Wide Ins. Co., 817 N.Y.S.2d
851, 853 (App. Term 2006) (“[A] nurse is a mere lay informant for purposes of medical diagnosis
and treatment, and is not competent to render medical opinions absent an accounting of his or her
training, observations or experience sufficient to establish such competence.” (Citations omitted)).
Accordingly, any lay opinions regarding the cause of Mr. Karnisky’s injuries are
inadmissible and must be excluded. Similarly, testimony by unqualified witnesses regarding
asbestos-related diseases and knowledge of alleged dangers of asbestos must be excluded.
2. Lay Opinions Regarding Causation, Asbestos-Related Diseases, And
Knowledge of Alleged Dangers of Asbestos Are Not Relevant
Medical causation may be proven by competent expert testimony establishing both
“general causation,” that the product at issue is capable of causing the type of injury alleged, and
“specific causation,” that the exposure actually caused the alleged injury. Heckstall v. Pincus, 797
N.Y.S.2d 445, 447 (1st Dep’t 2005); see also Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006)
(“It is well-established that an opinion on causation should set forth a plaintiff’s exposure to a
toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff
was exposed to sufficient levels of the toxin to cause the illness (specific causation).” (Citations
omitted.)). Non-expert testimony regarding an alleged causal relationship between asbestos and
Mr. Karnisky’s condition does not tend to prove causation, as it is simply speculation. Admission
of such testimony by an unqualified witness will result in error because it is incompetent. The
same holds true for testimony by an unqualified witness regarding asbestos-related diseases and
knowledge of alleged dangers of asbestos. Non-expert testimony on these issues should therefore
be excluded.
4
5 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
3. Incompetent Lay Opinions Are Unduly Prejudicial
While lay opinions regarding causation, asbestos-related diseases, and knowledge of
alleged dangers of asbestos are irrelevant, they are not without consequence. The danger of unfair
prejudice to defendants and the likelihood of misleading the jury requires that they be excluded.
People v. Scarola, 71 N.Y.2d 769, 777 (1988) (providing that even relevant evidence may be
excluded if “its probative value is substantially outweighed by the danger that it will unfairly
prejudice the other side or mislead the jury.” (Citations omitted)). Experts will address the medical
causation issues. Non-expert opinion regarding these issues adds nothing of value and threatens
to mislead and confuse the jurors, who are already required to consider complicated scientific
evidence. As they seek to understand the scientific evidence in this case and assess the credibility
of the parties’ experts, the jurors should not be distracted or confused by, for example, unfounded,
speculative opinions improperly suggesting from a lay perspective how they should decide issues
of causation.
To avoid potential prejudice to defendants, the Court should order plaintiffs and their
counsel not to introduce lay opinions attributing Mr. Karnisky’s condition to asbestos exposure, or
lay testimony regarding asbestos-related diseases or knowledge of alleged dangers of asbestos.
B. PRECLUSION OF INADMISSIBLE LAY TESTIMONY REGARDING THE
CHEMICAL COMPOSITION OF PRODUCTS
1. The Testimony of A Non-Expert Witness about the Alleged Asbestos Content
of A Product Is Inadmissible As A Matter of Law
“The general rule . . . is[] that witnesses must be confined to the communication of facts,
and not opinions or conclusions which they may have formed from the facts, whether known to
themselves, or derived from the testimony of others.” Morehouse v. Matthews, 2 N.Y. 514, 515-
16 (1849) (emphasis in original). “The lay opinion rule requires the ordinary lay witness to confine
his testimony to the facts, and to exclude his conclusions or opinions.” People v. Sanchez, 492
5
6 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
N.Y.S.2d 683, 684 (Sup. Ct. Bronx Cty. 1985) (citation omitted). “The rule is founded on the
premise that, since it is the sole province of the jury to draw inferences from facts, admission of
opinion testimony would usurp the jury’s fact finding function.” Id. The exception to the rule
only exists “whenever the facts are such that they cannot be described so as to enable persons to
form proper conclusions regarding them.” Id.
As this rule has developed in New York, it is not unlike Federal Rule of Evidence 701. See
generally People v. Russell, 567 N.Y.S.2d 548, 553 (2d Dep’t 1991), aff’d, 79 N.Y.2d 1024 (1992)
(“[T]he rule has developed in this State that lay opinion testimony may be admissible when the
subject matter of the testimony is such that it would be impossible to accurately describe the facts
without stating an opinion or impression . . . This is not too dissimilar to the statement of the United
States Court of Appeals for the Seventh Circuit in United States v. Jackson, 688 F.2d 1121, cert.
denied 460 U.S. 1043, . . . that ‘[o]pinion testimony by a lay witness may be admitted under Rule
701 whenever the witness cannot adequately communicate to the jury the facts upon which his or
her opinion is based.’” (Internal citations omitted)).
Courts addressing this issue under Rules of Evidence modeled after Federal Rule of
Evidence 701 hold that the opinion of a non-expert witness on the subject of the asbestos content
of a product is inadmissible. In McGuire v. Mayfield, Nos. 1-90-83, 1-90-88, 1991 WL 261831,
at *6 (Ohio Ct. App. Dec. 9, 1991), an Ohio Court of Appeals held that the testimony of co-workers
as to a plaintiff’s exposure to asbestos was not rationally based on their perceptions. Admission of
such testimony was therefore reversible error. Id.; see McGuire v. Mayfield, attached to
Affirmation of Thuy T. Bui (“Bui Aff.”) in Support of Omnibus Motion in Limine, as Exhibit 1.
See also Augustine v. GAF Corp., 971 F.2d 129, 132 (8th Cir. 1992) (the plaintiff’s testimony that
they worked on certain jobsites where the defendant contractor had employees and that they
6
7 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
believed the defendants’ employees were working with asbestos was insufficient to survive
summary judgment); Samarin v. GAF Corp., 571 A.2d 398, 403-04 (Pa. Super. Ct. 1989)
(testimony of tradesman that inferred a product contained asbestos because it was heat resistant
was insufficient to survive summary judgment).
Lay witnesses are not competent to testify that the products they allegedly used contained
asbestos based on speculation or hearsay, what they saw with a naked eye, or what they otherwise
perceived with their senses. Therefore, none of the fact witnesses, including Mr. Karnisky, should
be permitted to testify as to the asbestos content of any product at issue in this matter.
2. Lay Witnesses Have No Foundation for Testifying That a Product They Saw
Contained Asbestos
Before a lay opinion will be admitted, “the proper foundation must be laid.” Sanchez, 492
N.Y.S.2d at 684. “It must be demonstrated that: (1) that facts which constitute the opinion are
incapable of description; (2) the subject matter does not require expert knowledge; and (3) the
witness is qualified to give his opinion.” Id. “That is, the opinion of a lay witness is admissible
when, by virtue of his life experience, the witness is familiar with the subject matter in question,
and the opinion does not require technical or scientific expertise.” Id. Here, there is no evidence
that Mr. Karnisky, or any of plaintiffs’ fact witnesses for that matter, are actually familiar with the
chemical composition of the gaskets, packing, and insulation allegedly used with Neles-Jamesbury
valves. In fact, Mr. Karnisky’s belief that these parts contained asbestos is limited to speculation,
hearsay statements from others, or his belief that a certain brand of packing contained asbestos.
See Deposition of Robert Karnisky, Vol. 2 pp. 390:14-24; 391:10-18; 392:15-24; 395:5-15;
397:25-398:10, attached to Bui Aff as Exhibit 2.
7
8 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
C. PRECLUSION OF PUNITIVE DAMAGES
Punitive damages are extraordinary. Here, “the evidence does not establish ‘this to be one
of the “singularly rare cases” where punitive damages are warranted.’” In re Eighth Judicial Dist.
Asbestos Litig., 938 N.Y.S.2d 715, 716 (4th Dep’t 2012) (quoting New York City Asbestos Litig.,
640 N.Y.S.2d 488, 489 (1st Dep’t 1996)). “Punitive damages are permitted when the defendant’s
wrongdoing is not simply intentional but ‘evince[s] a high degree of moral turpitude and
demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations.’”
Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 (2007) (quoting Walker v. Sheldon, 10 N.Y.2d
401, 405 (1961)). For punitive damages to be awarded, “[t]he misconduct must be exceptional,
‘as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an
improper motive or vindictiveness .. . or has engaged in outrageous or oppressive intentional
misconduct or with reckless or wanton disregard of safety or rights.’” Id. (citations omitted).
Punitive damages are not warranted unless “the conduct of the party being held liable
evidences a high degree of moral culpability or where the conduct is so flagrant as to transcend
mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”
Hale v. Odd Fellow & Rebekah Health Care Facility, 755 N.Y.S.2d 164, 165 (4th Dep’t 2003)
(internal quotation marks and citations omitted). “Punitive damages may not be claimed in the
absence of a wrongful motive on the defendant’s part, willful or intentional misdoing, or a reckless
indifference equivalent to willful or intentional misdoing.” Frenya v. Champlain Valley
Physician’s Hosp. Med. Ctr., 521 N.Y.S.2d 150, 151 (3d Dep’t 1987) (citation omitted).
Here, there is no evidence of a wrongful motive on Neles-Jamesbury’s part. Neither Neles-
Jamesbury’s discovery responses nor deposition testimony suggest that Neles-Jamesbury had an
awareness of the hazard posed by the use of any internal component part manufactured by it.
Plaintiffs have not presented any other evidence to so suggest. Without such evidence, the record
8
9 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
is devoid of the outrageous or “wanton disregard of safety” that is required for an award of punitive
damages. Ross, 8 N.Y.3d at 489.
D. BIFURCATION OF PUNITIVE DAMAGES ISSUES
CPLR 603 allows a court to separate the trial of any claim or issue in furtherance of
convenience or to avoid prejudice. Where bifurcation may assist in clarification or simplification
of the issues and a fair and more expeditious resolution of the case, New York law encourages
bifurcation. 16 N.Y.Prac., New York Law of Torts § 20:47; 22 NYCRR 202.42(a). “The joint trial
format has the potential to reduce the cost of litigation, make more economical use of the trial
court’s time, and speed the disposition of the cases as well as to encourage settlements . . . .” In
re New York City Asbestos Litig., 593 N.Y.S.2d 43, 50 (1st Dep’t 1993) (internal citations omitted),
aff'd sub nom. New York City Asbestos Litigation: Brooklyn Naval Shipyard Cases, 82 N.Y.2d 821
(1993).
Courts have found, in both negligence and products liability cases, that bifurcation is
warranted. See, e.g., Gogatz v. N.Y. City Transit Auth., 288 A.D.2d 115, 115 (1st Dep’t 2001)
(finding the lower court did not abuse its discretion bifurcating liability and damages where the
two were not significantly intertwined); Hrusa v. Bogdan, 278 A.D.2d 947, 947 (4th Dep’t 2000)
(“Issues of liability and damages in a negligence action are distinct and severable issues that should
be tried and determined separately unless [the] plaintiff’s injuries have an important bearing on the
issue of liability.” (Citation omitted)); Martell v. Chrysler Corp., 186 A.D.2d 1059, 1059 (4th
Dep’t 1992); see also In re New York City Asbestos Litig., 593 N.Y.S.2d at 50 (finding that the
trial court did not abuse its discretion in using the “reverse bifurcation” format in an asbestos case).
Further, “[w]hether or not a trial court bifurcates liability and damages, the court can
bifurcate the issue of punitive damages.” 16 N.Y.Prac., New York Law of Torts § 20:47; see also
Rupert v. Sellers, 48 A.D.2d 265, 272 (4th Dep’t 1975) (“[The d]efendant’s wealth should not be
9
10 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
a weapon to be used by [the] plaintiff to enable him to induce the jury to find the defendant guilty
of malice, thus entitling [the] plaintiff to punitive damages. To avoid such possible abuse, we
conclude that the split trial procedure should be used, and that the court should take a special
verdict as to whether [the] defendant was guilty of such conduct that [the] plaintiff is entitled to
punitive damages.”).
When bifurcated, liability issues are tried first, unless the court orders otherwise. See 22
NYCRR 202.42(b). The jury should not be allowed to hear prejudicial testimony that allegedly
warrants the award of punitive damages without first determining that Neles-Jamesbury is indeed
liable in the first place. If, under New York law, the jury finds that Neles-Jamesbury is not liable,
the case against Neles-Jamesbury will not even get to the issue of punitive damages, thereby
expediting resolution. Further, separating the issue of liability from punitive damages will clarify
the issues, as it will allow the jury to focus on liability for products manufactured by third parties
without being unduly influenced and confused by testimony pertaining to punitive damages.
E. PROHIBITION ON THE USE OF TERMS OR LABELS “ASBESTOS
INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY” IN THE
PRESENCE OF THE JURY
Here, the terms and labels “asbestos industry” and “member of the asbestos industry” are
not relevant to the issues at hand: 1) whether Mr. Karnisky was exposed to an asbestos-containing
product manufactured by Neles-Jamesbury; 2) whether the yet-to-be established exposure resulted
in respirable asbestos fibers from that product entering Mr. Karnisky’s airway; and 3) whether
such fibers were a substantial, contributing factor to Mr. Karnisky’s alleged asbestosis.
Use of the terms “the asbestos industry” and “member of the asbestos industry falsely
implies that, during the period at issue, Neles-Jamesbury belonged to a recognized single group
defined with reference to “asbestos.” In fact, there was no single “asbestos industry.” Asbestos
was an ingredient used in a variety of “industries” to make widely varying products for widely
10
11 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
varying applications. Stating that a company such as Neles-Jamesbury, a manufacturer of both
non-asbestos-containing and asbestos-containing valves was a part of the “asbestos industry” is
false and misleading.
Indeed, the use of the term “asbestos industry” falsely implies that Neles-Jamesbury is
recognized as sharing with other entities asbestos-related interests that place Neles-Jamesbury as
being in the same “industry.” Moreover, the vagueness of the term gives plaintiffs a context in
which to impute the knowledge and conduct of other entities/non-defendants to Neles-Jamesbury.
Rather than saying “company X knew this,” plaintiffs will try to assert that “the asbestos industry
knew this.” Such a statement inaccurately and unfairly groups every company or manufacturer
involved with asbestos, regardless of knowledge or involvement, in the so-called “asbestos
industry.” If plaintiffs are permitted to impose the false “asbestos industry” label on Neles-
Jamesbury, that label will unfairly create in the jury’s mind the erroneous impression that Neles-
Jamesbury participated in conduct for which there is no evidence. Quite simply, plaintiffs should
not be allowed to use a false term or label, such as “asbestos industry” or “member of the asbestos
industry,” as a substitute for evidentiary proof against Neles-Jamesbury. To find otherwise,
contradicts New York law and the Seventh Amendment to the United States Constitution.
Throughout the history of asbestos litigation, plaintiffs’ reference to defendants
collectively as the “asbestos industry” or “members of the asbestos industry” is also unfairly
prejudicial.
First, plaintiffs have no evidence demonstrating that any group held itself out as the
“asbestos industry.” Likewise, there is no evidence that Neles-Jamesbury was a member of such
group. Second, it is axiomatic that use of the false label “asbestos industry” is unfairly prejudicial
because the collective term connotes an agreement, or a predisposition toward agreement, among
11
12 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
certain parties. With regard to Neles-Jamesbury, such a connotation has no basis in fact. Plaintiffs
employ the term to suggest the existence of a group relationship in their quest to unfairly convince
the jury to find that Neles-Jamesbury participated in actionable group behavior. Similarly, the use
of this terminology is an attempt to improperly impute the conduct of other
companies/manufacturers to Neles-Jamesbury. Use of the broad label makes the obvious
suggestion that those in a group relationship are more likely to enter into an agreement for illegal
or malicious purposes.
Use of overbroad and misleading terms and labels like “the asbestos industry” serves no
purpose but to confuse and inflame. The United States Supreme Court has held that a trial court
should prevent such inflammatory references. For example, in New York Cent. R.R. Co. v.
Johnson, 279 U.S. 310, 319, amended by 49 S.Ct. 417 (1929), the Supreme Court held that the
term “eastern railroad” even though literally true, tended to invite regional prejudice and should
have been prohibited at trial. The Supreme Court also noted that the trial judge should have
prevented the terms “come into this town” and “sent on from New York” for the same reasons.
Id.; see also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (“trial courts should ever
be alert” to prevent appeals to class prejudice), denying reh’g 310 U.S. 658 (1940); see Doody v.
Gottshall, No. 06/03983, 2010 WL 6777093, at *11 Exhibit A (N.Y. Sup. Ct. Monroe Cnty. Apr.
22, 2010) (“Above all [counsel] should not seek to lead the jury away from the issues by drawing
irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury
against the defendant.” (Citations omitted)), attached to Bui Aff. as Exhibit 3.
In short, where the use of unfair or prejudicial language can be foreseen, it properly is
prohibited in limine, thus avoiding a problematic exercise in attempting to un-ring the bell. See In
re Related Asbestos Cases, 543 F. Supp. 1152, 1159 (N.D. Cal. 1982). It does not matter if the
12
13 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
terms or labels are expected to be used by the plaintiff, the plaintiff’s counsel, or by one of the
plaintiff’s expert witnesses. “‘It is quite as necessary to protect a party against the improper
remarks made to a jury by a witness as it is against such remarks when uttered by counsel.’” Beck
v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941) (quoting Surface v. Bentz, 77 A. 922, 923
(Pa. 1910)).
Based on the foregoing, this Court should prohibit use of the terms and labels the “asbestos
industry” or “member of the asbestos industry.” Such terms are irrelevant, misleading, will
confuse the jury, and are unfairly and unduly prejudicial. In sum, they improperly imply the
existence of a group and group behavior that would improperly bias the jury and/or distract it from
basing its verdict solely on evaluation of evidence as to Neles-Jamesbury.
F. EXCLUSION OF EVIDENCE OF LIABILITY INSURANCE
“Evidence that a defendant carries liability insurance is generally inadmissible.” Salm v.
Moses, 13 N.Y.3d 816, 817 (2009) (citations omitted). It is well-recognized that knowledge of the
presence of liability insurance would induce juries to decide cases on improper grounds. See id.
at 817-18 (“‘[I]t might make it much easier to find an adverse verdict if the jury understood that
an insurance company would be compelled to pay the verdict.’” (quoting Loughlin v. Brassil, 187
N.Y. 128, 135 (1907)).
Further, such statements shall be precluded when they have no relevance to the issues
before the jury. See Salm, 13 N.Y.3d at 818 (“[E]vidence of liability insurance injects a collateral
issue into the trial that is not relevant as to whether the insured acted negligently.”); see also 5
N.Y.Prac., Evidence in New York State and Federal Courts § 4:64 (“It is of virtually no relevance
on the issues of negligence or strict liability that the defendant has or does not have liability
insurance.”). This precedent recognizes that when insurance is mentioned to suggest liability
coverage, the rights of the parties are prejudiced. See Leotta v. Plessinger, 8 N.Y.2d 449, 461
13
14 of 21
202210061472 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM
NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022
(1960) (“Ordinarily whether a defendant has or has not obtained insurance is irrelevant to the
issues, and, since highly prejudicial, therefore, inadmissible.”); see also 5 N.Y.Prac., Evidence in
New York State and Federal Courts § 4:64 (“Because the prejudice quotient is obvious, the rule
barring such evidence is one of the least controversial in the law of evidence.”). Even though
courts recognize that liability insurance is more prevalent and that jurors are more aware of the
possibility of insurance coverage, the general rule still stands because of the potential for prejudice.
See Salm, 13 N.Y.3d at 818.
Where reference to insurance is irrelevant to the issues, and where the reference is likely
made to improperly influence the jury, it should be excluded. See Oltarsh v. Aetna Ins. Co., 15
N.Y.2d 111, 118 (1965). The Fourth Department has recognized that “evidence that thedefendant
[sic] carried liability is irrelevant and is generally considered so pre
Preview
FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM INDEX NO. E2021005118 NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3218162 Book Page CIVIL Return To: No. Pages: 21 THUY T. BUI 1177 Avenue of the Americas Instrument: MISCELLANEOUS DOCUMENT 41st Floor New York, NY 10036 Control #: 202210061472 Index #: E2021005118 Date: 10/06/2022 Karnisky, Robert A. Time: 5:36:56 PM 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 21 202210061472 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE X ROBERT A. KARNISKY, and PAULA A. : KARNISKY, his spouse, : Index No. E2021/005118 : Plaintiffs, : : -against- : : AIR & LIQUID SYSTEMS CORPORATION : as successor by merger to, BUFFALO : PUMPS, INC., et al., : : Defendants. X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NELES-JAMESBURY, INC.’S OMNIBUS MOTION IN LIMINE SEEKING VARIOUS PRETRIAL RELIEF Faegre Drinker Biddle & Reath LLP 1177 Avenue of the Americas 41st Floor New York, NY 10036-2714 Tel: (212) 248-3140 Fax: (212) 248-3141 Attorneys for Defendant Neles-Jamesbury, Inc. 2 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 I. INTRODUCTION This personal injury action arises out of Robert Karnisky’s alleged exposure to asbestos and asbestos-containing products. Neles-Jamesbury seeks an order in limine to: a. Exclude lay opinions regarding asbestos, purported asbestos-related diseases, and knowledge of alleged dangers of asbestos; b. Exclude inadmissible lay testimony regarding the chemical composition of products; c. Exclude punitive damages; or in the alternative, d. Bifurcate trial of punitive damages issues; e. Prohibit the use of terms or labels “asbestos industry” or “member of the asbestos industry” in the presence of the jury; f. Exclude evidence of liability insurance; g. Exclude all references to products not at issue; h. Preclude all references to other lawsuits involving Neles-Jamesbury; and i. For such other relief as the court deems just and proper. II. ARGUMENT A. EXCLUSION OF LAY OPINIONS REGARDING ASBESTOS, PURPORTED ASBESTOS-RELATED DISEASES, AND KNOWLEDGE OF ALLEGED DANGERS OF ASBESTOS 1. Lay Opinions Regarding Causation and Other Issues Are Inadmissible “The lay opinion rule requires the ordinary lay witness to confine his testimony to the facts, and to exclude his conclusions or opinions. The rule is founded on the premise that, since it is the sole province of the jury to draw inferences from facts, admission of opinion testimony would usurp the jury’s fact finding function.” People v. Sanchez, 492 N.Y.S.2d 683, 684 (Sup. Ct. Bronx Cnty. 1985) (internal citations omitted); see also Morehouse v. Matthews, 2 N.Y. 514, 515-16 2 3 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 (1849) (“[W]itnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from facts, whether known to themselves, or derived from the testimony of others. It is the special duty of the jury to draw conclusions, and not of the witness.” (Emphasis in original)); Dombrowski v. Moore, 752 N.Y.S.2d 183, 185 (4th Dep’t 2002) (Lay witnesses “may only testify concerning facts and not to their opinions and conclusions drawn from the facts.” (Internal citations and quotation marks omitted)). If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to those cases where “(1) th[e] facts which constitute the opinion are incapable of description; (2) the subject matter does not require expert knowledge; and (3) the witness is qualified to give his opinion.” Sanchez, 492 N.Y.S. at 684 (citation omitted). Thus, “opinions of ordinary witnesses have been admitted regarding matters of taste, smell, touch, color, weight, size, quantity, velocity, heat, cold, sickness, health, excitement, intoxication and disposition,” and “[i]nferences of identity as to race, language, visibility and sounds have likewise been received.” Id. (citations omitted). Permissible testimony on such matters ends where the witness seeks to testify about an area calling for special knowledge, which it is not shown that he possesses. See, e.g., Larsen v. Vigliarolo Bros., Inc., 429 N.Y.S.2d 273, 274-75 (2d Dep’t 1980). Testimony regarding medical causation by one not qualified to offer expert opinions is inadmissible lay opinion. See People v. Lapan, 734 N.Y.S.2d 648, 651 (3d Dep’t 2001) (“[T]he progression from injury to death, often unseen and not readily comprehended, will generally be a subject for expert medical opinion.” (Citation omitted)). Medical causation in particular is a subject exclusively within the province of qualified medical experts, not lay witnesses. See id.; see also Olson v. Brenntag North Am., Inc., 62 Misc. 3d 1228(A), No. 190328/2017, at *6 (Sup. Ct. N.Y. Cnty. 2019) (“matters such as medical causation . . . ordinarily lie within the province 3 4 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 only of an expert rather than lay witness”); SZ Med. P.C. v. Country-Wide Ins. Co., 817 N.Y.S.2d 851, 853 (App. Term 2006) (“[A] nurse is a mere lay informant for purposes of medical diagnosis and treatment, and is not competent to render medical opinions absent an accounting of his or her training, observations or experience sufficient to establish such competence.” (Citations omitted)). Accordingly, any lay opinions regarding the cause of Mr. Karnisky’s injuries are inadmissible and must be excluded. Similarly, testimony by unqualified witnesses regarding asbestos-related diseases and knowledge of alleged dangers of asbestos must be excluded. 2. Lay Opinions Regarding Causation, Asbestos-Related Diseases, And Knowledge of Alleged Dangers of Asbestos Are Not Relevant Medical causation may be proven by competent expert testimony establishing both “general causation,” that the product at issue is capable of causing the type of injury alleged, and “specific causation,” that the exposure actually caused the alleged injury. Heckstall v. Pincus, 797 N.Y.S.2d 445, 447 (1st Dep’t 2005); see also Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006) (“It is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” (Citations omitted.)). Non-expert testimony regarding an alleged causal relationship between asbestos and Mr. Karnisky’s condition does not tend to prove causation, as it is simply speculation. Admission of such testimony by an unqualified witness will result in error because it is incompetent. The same holds true for testimony by an unqualified witness regarding asbestos-related diseases and knowledge of alleged dangers of asbestos. Non-expert testimony on these issues should therefore be excluded. 4 5 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 3. Incompetent Lay Opinions Are Unduly Prejudicial While lay opinions regarding causation, asbestos-related diseases, and knowledge of alleged dangers of asbestos are irrelevant, they are not without consequence. The danger of unfair prejudice to defendants and the likelihood of misleading the jury requires that they be excluded. People v. Scarola, 71 N.Y.2d 769, 777 (1988) (providing that even relevant evidence may be excluded if “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury.” (Citations omitted)). Experts will address the medical causation issues. Non-expert opinion regarding these issues adds nothing of value and threatens to mislead and confuse the jurors, who are already required to consider complicated scientific evidence. As they seek to understand the scientific evidence in this case and assess the credibility of the parties’ experts, the jurors should not be distracted or confused by, for example, unfounded, speculative opinions improperly suggesting from a lay perspective how they should decide issues of causation. To avoid potential prejudice to defendants, the Court should order plaintiffs and their counsel not to introduce lay opinions attributing Mr. Karnisky’s condition to asbestos exposure, or lay testimony regarding asbestos-related diseases or knowledge of alleged dangers of asbestos. B. PRECLUSION OF INADMISSIBLE LAY TESTIMONY REGARDING THE CHEMICAL COMPOSITION OF PRODUCTS 1. The Testimony of A Non-Expert Witness about the Alleged Asbestos Content of A Product Is Inadmissible As A Matter of Law “The general rule . . . is[] that witnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from the facts, whether known to themselves, or derived from the testimony of others.” Morehouse v. Matthews, 2 N.Y. 514, 515- 16 (1849) (emphasis in original). “The lay opinion rule requires the ordinary lay witness to confine his testimony to the facts, and to exclude his conclusions or opinions.” People v. Sanchez, 492 5 6 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 N.Y.S.2d 683, 684 (Sup. Ct. Bronx Cty. 1985) (citation omitted). “The rule is founded on the premise that, since it is the sole province of the jury to draw inferences from facts, admission of opinion testimony would usurp the jury’s fact finding function.” Id. The exception to the rule only exists “whenever the facts are such that they cannot be described so as to enable persons to form proper conclusions regarding them.” Id. As this rule has developed in New York, it is not unlike Federal Rule of Evidence 701. See generally People v. Russell, 567 N.Y.S.2d 548, 553 (2d Dep’t 1991), aff’d, 79 N.Y.2d 1024 (1992) (“[T]he rule has developed in this State that lay opinion testimony may be admissible when the subject matter of the testimony is such that it would be impossible to accurately describe the facts without stating an opinion or impression . . . This is not too dissimilar to the statement of the United States Court of Appeals for the Seventh Circuit in United States v. Jackson, 688 F.2d 1121, cert. denied 460 U.S. 1043, . . . that ‘[o]pinion testimony by a lay witness may be admitted under Rule 701 whenever the witness cannot adequately communicate to the jury the facts upon which his or her opinion is based.’” (Internal citations omitted)). Courts addressing this issue under Rules of Evidence modeled after Federal Rule of Evidence 701 hold that the opinion of a non-expert witness on the subject of the asbestos content of a product is inadmissible. In McGuire v. Mayfield, Nos. 1-90-83, 1-90-88, 1991 WL 261831, at *6 (Ohio Ct. App. Dec. 9, 1991), an Ohio Court of Appeals held that the testimony of co-workers as to a plaintiff’s exposure to asbestos was not rationally based on their perceptions. Admission of such testimony was therefore reversible error. Id.; see McGuire v. Mayfield, attached to Affirmation of Thuy T. Bui (“Bui Aff.”) in Support of Omnibus Motion in Limine, as Exhibit 1. See also Augustine v. GAF Corp., 971 F.2d 129, 132 (8th Cir. 1992) (the plaintiff’s testimony that they worked on certain jobsites where the defendant contractor had employees and that they 6 7 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 believed the defendants’ employees were working with asbestos was insufficient to survive summary judgment); Samarin v. GAF Corp., 571 A.2d 398, 403-04 (Pa. Super. Ct. 1989) (testimony of tradesman that inferred a product contained asbestos because it was heat resistant was insufficient to survive summary judgment). Lay witnesses are not competent to testify that the products they allegedly used contained asbestos based on speculation or hearsay, what they saw with a naked eye, or what they otherwise perceived with their senses. Therefore, none of the fact witnesses, including Mr. Karnisky, should be permitted to testify as to the asbestos content of any product at issue in this matter. 2. Lay Witnesses Have No Foundation for Testifying That a Product They Saw Contained Asbestos Before a lay opinion will be admitted, “the proper foundation must be laid.” Sanchez, 492 N.Y.S.2d at 684. “It must be demonstrated that: (1) that facts which constitute the opinion are incapable of description; (2) the subject matter does not require expert knowledge; and (3) the witness is qualified to give his opinion.” Id. “That is, the opinion of a lay witness is admissible when, by virtue of his life experience, the witness is familiar with the subject matter in question, and the opinion does not require technical or scientific expertise.” Id. Here, there is no evidence that Mr. Karnisky, or any of plaintiffs’ fact witnesses for that matter, are actually familiar with the chemical composition of the gaskets, packing, and insulation allegedly used with Neles-Jamesbury valves. In fact, Mr. Karnisky’s belief that these parts contained asbestos is limited to speculation, hearsay statements from others, or his belief that a certain brand of packing contained asbestos. See Deposition of Robert Karnisky, Vol. 2 pp. 390:14-24; 391:10-18; 392:15-24; 395:5-15; 397:25-398:10, attached to Bui Aff as Exhibit 2. 7 8 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 C. PRECLUSION OF PUNITIVE DAMAGES Punitive damages are extraordinary. Here, “the evidence does not establish ‘this to be one of the “singularly rare cases” where punitive damages are warranted.’” In re Eighth Judicial Dist. Asbestos Litig., 938 N.Y.S.2d 715, 716 (4th Dep’t 2012) (quoting New York City Asbestos Litig., 640 N.Y.S.2d 488, 489 (1st Dep’t 1996)). “Punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but ‘evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations.’” Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 (2007) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 (1961)). For punitive damages to be awarded, “[t]he misconduct must be exceptional, ‘as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness .. . or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights.’” Id. (citations omitted). Punitive damages are not warranted unless “the conduct of the party being held liable evidences a high degree of moral culpability or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.” Hale v. Odd Fellow & Rebekah Health Care Facility, 755 N.Y.S.2d 164, 165 (4th Dep’t 2003) (internal quotation marks and citations omitted). “Punitive damages may not be claimed in the absence of a wrongful motive on the defendant’s part, willful or intentional misdoing, or a reckless indifference equivalent to willful or intentional misdoing.” Frenya v. Champlain Valley Physician’s Hosp. Med. Ctr., 521 N.Y.S.2d 150, 151 (3d Dep’t 1987) (citation omitted). Here, there is no evidence of a wrongful motive on Neles-Jamesbury’s part. Neither Neles- Jamesbury’s discovery responses nor deposition testimony suggest that Neles-Jamesbury had an awareness of the hazard posed by the use of any internal component part manufactured by it. Plaintiffs have not presented any other evidence to so suggest. Without such evidence, the record 8 9 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 is devoid of the outrageous or “wanton disregard of safety” that is required for an award of punitive damages. Ross, 8 N.Y.3d at 489. D. BIFURCATION OF PUNITIVE DAMAGES ISSUES CPLR 603 allows a court to separate the trial of any claim or issue in furtherance of convenience or to avoid prejudice. Where bifurcation may assist in clarification or simplification of the issues and a fair and more expeditious resolution of the case, New York law encourages bifurcation. 16 N.Y.Prac., New York Law of Torts § 20:47; 22 NYCRR 202.42(a). “The joint trial format has the potential to reduce the cost of litigation, make more economical use of the trial court’s time, and speed the disposition of the cases as well as to encourage settlements . . . .” In re New York City Asbestos Litig., 593 N.Y.S.2d 43, 50 (1st Dep’t 1993) (internal citations omitted), aff'd sub nom. New York City Asbestos Litigation: Brooklyn Naval Shipyard Cases, 82 N.Y.2d 821 (1993). Courts have found, in both negligence and products liability cases, that bifurcation is warranted. See, e.g., Gogatz v. N.Y. City Transit Auth., 288 A.D.2d 115, 115 (1st Dep’t 2001) (finding the lower court did not abuse its discretion bifurcating liability and damages where the two were not significantly intertwined); Hrusa v. Bogdan, 278 A.D.2d 947, 947 (4th Dep’t 2000) (“Issues of liability and damages in a negligence action are distinct and severable issues that should be tried and determined separately unless [the] plaintiff’s injuries have an important bearing on the issue of liability.” (Citation omitted)); Martell v. Chrysler Corp., 186 A.D.2d 1059, 1059 (4th Dep’t 1992); see also In re New York City Asbestos Litig., 593 N.Y.S.2d at 50 (finding that the trial court did not abuse its discretion in using the “reverse bifurcation” format in an asbestos case). Further, “[w]hether or not a trial court bifurcates liability and damages, the court can bifurcate the issue of punitive damages.” 16 N.Y.Prac., New York Law of Torts § 20:47; see also Rupert v. Sellers, 48 A.D.2d 265, 272 (4th Dep’t 1975) (“[The d]efendant’s wealth should not be 9 10 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 a weapon to be used by [the] plaintiff to enable him to induce the jury to find the defendant guilty of malice, thus entitling [the] plaintiff to punitive damages. To avoid such possible abuse, we conclude that the split trial procedure should be used, and that the court should take a special verdict as to whether [the] defendant was guilty of such conduct that [the] plaintiff is entitled to punitive damages.”). When bifurcated, liability issues are tried first, unless the court orders otherwise. See 22 NYCRR 202.42(b). The jury should not be allowed to hear prejudicial testimony that allegedly warrants the award of punitive damages without first determining that Neles-Jamesbury is indeed liable in the first place. If, under New York law, the jury finds that Neles-Jamesbury is not liable, the case against Neles-Jamesbury will not even get to the issue of punitive damages, thereby expediting resolution. Further, separating the issue of liability from punitive damages will clarify the issues, as it will allow the jury to focus on liability for products manufactured by third parties without being unduly influenced and confused by testimony pertaining to punitive damages. E. PROHIBITION ON THE USE OF TERMS OR LABELS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY” IN THE PRESENCE OF THE JURY Here, the terms and labels “asbestos industry” and “member of the asbestos industry” are not relevant to the issues at hand: 1) whether Mr. Karnisky was exposed to an asbestos-containing product manufactured by Neles-Jamesbury; 2) whether the yet-to-be established exposure resulted in respirable asbestos fibers from that product entering Mr. Karnisky’s airway; and 3) whether such fibers were a substantial, contributing factor to Mr. Karnisky’s alleged asbestosis. Use of the terms “the asbestos industry” and “member of the asbestos industry falsely implies that, during the period at issue, Neles-Jamesbury belonged to a recognized single group defined with reference to “asbestos.” In fact, there was no single “asbestos industry.” Asbestos was an ingredient used in a variety of “industries” to make widely varying products for widely 10 11 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 varying applications. Stating that a company such as Neles-Jamesbury, a manufacturer of both non-asbestos-containing and asbestos-containing valves was a part of the “asbestos industry” is false and misleading. Indeed, the use of the term “asbestos industry” falsely implies that Neles-Jamesbury is recognized as sharing with other entities asbestos-related interests that place Neles-Jamesbury as being in the same “industry.” Moreover, the vagueness of the term gives plaintiffs a context in which to impute the knowledge and conduct of other entities/non-defendants to Neles-Jamesbury. Rather than saying “company X knew this,” plaintiffs will try to assert that “the asbestos industry knew this.” Such a statement inaccurately and unfairly groups every company or manufacturer involved with asbestos, regardless of knowledge or involvement, in the so-called “asbestos industry.” If plaintiffs are permitted to impose the false “asbestos industry” label on Neles- Jamesbury, that label will unfairly create in the jury’s mind the erroneous impression that Neles- Jamesbury participated in conduct for which there is no evidence. Quite simply, plaintiffs should not be allowed to use a false term or label, such as “asbestos industry” or “member of the asbestos industry,” as a substitute for evidentiary proof against Neles-Jamesbury. To find otherwise, contradicts New York law and the Seventh Amendment to the United States Constitution. Throughout the history of asbestos litigation, plaintiffs’ reference to defendants collectively as the “asbestos industry” or “members of the asbestos industry” is also unfairly prejudicial. First, plaintiffs have no evidence demonstrating that any group held itself out as the “asbestos industry.” Likewise, there is no evidence that Neles-Jamesbury was a member of such group. Second, it is axiomatic that use of the false label “asbestos industry” is unfairly prejudicial because the collective term connotes an agreement, or a predisposition toward agreement, among 11 12 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 certain parties. With regard to Neles-Jamesbury, such a connotation has no basis in fact. Plaintiffs employ the term to suggest the existence of a group relationship in their quest to unfairly convince the jury to find that Neles-Jamesbury participated in actionable group behavior. Similarly, the use of this terminology is an attempt to improperly impute the conduct of other companies/manufacturers to Neles-Jamesbury. Use of the broad label makes the obvious suggestion that those in a group relationship are more likely to enter into an agreement for illegal or malicious purposes. Use of overbroad and misleading terms and labels like “the asbestos industry” serves no purpose but to confuse and inflame. The United States Supreme Court has held that a trial court should prevent such inflammatory references. For example, in New York Cent. R.R. Co. v. Johnson, 279 U.S. 310, 319, amended by 49 S.Ct. 417 (1929), the Supreme Court held that the term “eastern railroad” even though literally true, tended to invite regional prejudice and should have been prohibited at trial. The Supreme Court also noted that the trial judge should have prevented the terms “come into this town” and “sent on from New York” for the same reasons. Id.; see also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239 (“trial courts should ever be alert” to prevent appeals to class prejudice), denying reh’g 310 U.S. 658 (1940); see Doody v. Gottshall, No. 06/03983, 2010 WL 6777093, at *11 Exhibit A (N.Y. Sup. Ct. Monroe Cnty. Apr. 22, 2010) (“Above all [counsel] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant.” (Citations omitted)), attached to Bui Aff. as Exhibit 3. In short, where the use of unfair or prejudicial language can be foreseen, it properly is prohibited in limine, thus avoiding a problematic exercise in attempting to un-ring the bell. See In re Related Asbestos Cases, 543 F. Supp. 1152, 1159 (N.D. Cal. 1982). It does not matter if the 12 13 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 terms or labels are expected to be used by the plaintiff, the plaintiff’s counsel, or by one of the plaintiff’s expert witnesses. “‘It is quite as necessary to protect a party against the improper remarks made to a jury by a witness as it is against such remarks when uttered by counsel.’” Beck v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941) (quoting Surface v. Bentz, 77 A. 922, 923 (Pa. 1910)). Based on the foregoing, this Court should prohibit use of the terms and labels the “asbestos industry” or “member of the asbestos industry.” Such terms are irrelevant, misleading, will confuse the jury, and are unfairly and unduly prejudicial. In sum, they improperly imply the existence of a group and group behavior that would improperly bias the jury and/or distract it from basing its verdict solely on evaluation of evidence as to Neles-Jamesbury. F. EXCLUSION OF EVIDENCE OF LIABILITY INSURANCE “Evidence that a defendant carries liability insurance is generally inadmissible.” Salm v. Moses, 13 N.Y.3d 816, 817 (2009) (citations omitted). It is well-recognized that knowledge of the presence of liability insurance would induce juries to decide cases on improper grounds. See id. at 817-18 (“‘[I]t might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict.’” (quoting Loughlin v. Brassil, 187 N.Y. 128, 135 (1907)). Further, such statements shall be precluded when they have no relevance to the issues before the jury. See Salm, 13 N.Y.3d at 818 (“[E]vidence of liability insurance injects a collateral issue into the trial that is not relevant as to whether the insured acted negligently.”); see also 5 N.Y.Prac., Evidence in New York State and Federal Courts § 4:64 (“It is of virtually no relevance on the issues of negligence or strict liability that the defendant has or does not have liability insurance.”). This precedent recognizes that when insurance is mentioned to suggest liability coverage, the rights of the parties are prejudiced. See Leotta v. Plessinger, 8 N.Y.2d 449, 461 13 14 of 21 202210061472 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 10/06/2022 05:35 PM NYSCEF DOC. NO. 237 RECEIVED NYSCEF: 10/06/2022 (1960) (“Ordinarily whether a defendant has or has not obtained insurance is irrelevant to the issues, and, since highly prejudicial, therefore, inadmissible.”); see also 5 N.Y.Prac., Evidence in New York State and Federal Courts § 4:64 (“Because the prejudice quotient is obvious, the rule barring such evidence is one of the least controversial in the law of evidence.”). Even though courts recognize that liability insurance is more prevalent and that jurors are more aware of the possibility of insurance coverage, the general rule still stands because of the potential for prejudice. See Salm, 13 N.Y.3d at 818. Where reference to insurance is irrelevant to the issues, and where the reference is likely made to improperly influence the jury, it should be excluded. See Oltarsh v. Aetna Ins. Co., 15 N.Y.2d 111, 118 (1965). The Fourth Department has recognized that “evidence that thedefendant [sic] carried liability is irrelevant and is generally considered so pre