Motion-Secondary: Robert A. Karnisky, Paula A. Karnisky his spouse v. Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps, Inc., 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., 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 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, Foster Wheeler Llc, 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, Grinnell Llc, 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, 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, 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, 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, Rochester Acoustical Corp., Rochester Industrial Insulation, 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, The Mader Corporation, The Marley-Wylain Company f/k/a Weil-McLain, The William Powell Company, Union Carbide Corporation, Velan Valve Corp., Viacomcbs, Inc., Warren Pumps Llc, 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, Neles-Jamesbury, Inc, Watts Water Technologies, Inc f/k/a WATTS INDUSTRIES, INC, individually and as successor to MUELLER STEAM SPECIALTY COMPANY

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                                FILED:         MONROE        COUNTY         CLERK        10/20/2022             02:26       PM                      INDEX    NO.   E2021005118
   NYSCEF     DOC.   NO.   254                                                                                RECEIVED      NYSCEF:     10/20/2022
                     MONROE COUNTY CLERK’S OFFICE                                   THIS IS NOT A BILL. THIS IS YOUR RECEIPT.


                                                                              Receipt # 3230697

                                                                              Book    Page   CIVIL

         Return To:                                                           No. Pages:  10
         SEAN MICHAEL ESFORD
         424 Main Street, Suite 1500                                          Instrument: AFFIRMATION IN OPPOSITION
         Buffalo, NY 14202
                                                                              Control #:        202210200979
                                                                              Index #:          E2021005118

                                                                              Date: 10/20/2022

          Karnisky, Robert A.                                                 Time: 2:28:29 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




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                 SUPREME COURT OF THE STATE OF NEW YORK
                 SEVENTH JUDICIAL DISTRICT


                In Re Seventh Judicial District
                         Asbestos Litigation



                 This Document Applies to:                                                        SEVENTH JUDICIAL DISTRICT
                                                                                                  ASBESTOS LITIGATION
                 SUPREME COURT OF THE STATE OF NEW YORK
                 COUNTY OF MONROE


                 ROBERT A. KARNISKY and                                                           PLAINTIFFS' ATTORNEY
                 PAULA A. KARNISKY, his spouse                                                    AFFIDAVIT IN OPPOSITION
                                                                                                  TO DEFENDANT
                                                                       Plaintiffs,                NELES-JAMESBURY, INC.'S
                                                                                                  MOTIONS 1NLIMINE
                                   Against

                 AIR & LIQUID SYSTEMS CORPORATION
                  as successor by merger to                                                       INDEX NO. E2021005118
                  BUFFALO PUMPS, INC., et aL,

                                                                       Defendants.




                 STATE OF NEW YORK )
                 COUNTY OF ERIE ) SS.:
                 CITY      OF    BUFFALO            )


                          SEAN M. ESFORD, ESQ., being duly sworn, deposes and says:

                          1. 1 am an attorney at law duly licensed to practice in the State of New York and am

                associated with the law firm of Lipsitz, Ponterio & Comerford LLC, attorneys for the above-

                captioned plaintiffs.

                          2. I submit this Affidavit, together with exhibits annexed hereto, in opposition to the

                numerous motions in Umine filed by defendant Neles-Jamesbury, Inc. (hereinafter referred to as


                "Jamesbury"), a manufacturer of industrial valves. Deponent will address each of Jamesbury's


                motions in limine.



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                                                      PRELIMINARY STATEMENT

                         3. This is a personal injury action for damages sustained by plaintiff, Robert Karnisky,

                as a result of his exposure to asbestos. Plaintiff Robert Karnisky currently suffers from asbestosis


                caused by his occupational exposures to asbestos at Xerox Corporation (hereinafter referred to as


                "Xerox") in Rochester, New York from approximately 1967 until 2003. Please see Dr. UtelFs


                expert report confirming Mr. Karnisky's asbestosis diagnosis attached hereto as Exhibit A.


                         4. During Mr. Kamisky s employment at Xerox from approximately 1967 to 2003,he

                worked as a pipefitter. One of the pieces of equipment he regularly worked on was defendant


                Jamesbury's valves. Mr. Karnisky testified that he was exposed to asbestos while working on


                Jamesbury valves throughout his career. Please see Volume I of Plaintiff Robert Kamisky's


                deposition testimony taken on January 10, 2022 at page 129, attached hereto as Exhibit B.

                          5. Initially, deponent respectfully requests that this Court defer ruling on these

                blunderbuss evidentiary requests until the time of trial and permit defendant to object to specific

                 items of evidence defendant believes to be improper, rather than issuing a series of broad


                 preclusionary orders in advance of trial. The admissibility of many potential items of evidence is

                 necessarily dependent on the foundation laid at the time of trial.

                          6. The evidence concerning what Jamesbury knew or should have known about the


                 hazardous nature of its products consists of a variety of evidence showing what Jamesbury, which


                 is held to the knowledge of an expert in its field, actually knew about the dangers of asbestos, as

                 well as what it should have known.


                          7. Many of the motions seek to preemptively restrict plaintiffs' counsel s speech at trial,


                 in an overbroad fashion. Plaintiffs submit that, if the defendant believes certain terms to be misleading,

                 the proper solution is to point that out to the jury, rather than seek a preclusionary order


                 micromanaging plaintiffs' counsel's speech,




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                         8. In the unlikely event that plaintiffs' counsel makes an unduly prejudicial statement,

                the proper remedy is a timely objection, followed by either a curative instruction or motion for a

                mistrial, rather than a broad preclusionary order which seeks to anticipate all possible improper

                statements plaintiffs might make.

                         9. Nevertheless, deponent will address each of these cookie-cutter motions.


                A. EXCLUDE LAY OPINIONS REGARDING ASBESTOS, PURPORTED
                         ASBESTOS-RELATED DISEASES, AND KNOWLEDGE OF ALLEGED
                         DANGERS OF ASBESTOS

                          10. Jamesbury seeks a blanket pretrial mling seeking to preclude any lay witness from

                testifying that any Jamesbury-attributable product contained or released asbestos.

                          11. A lay witness most certainly can testify as to what they observed while handling

                defendant Jamesbury's asbestos-containing products. Mr. Kamisky should be permitted to testify


                at trial describing what the Jamesbury product looked like, how Plaintiff handled the Jamesbury

                product, and Plaintiffs observations on whether working with this Jamesbury product released

                visible dust which he breathed in.

                          12. The Fourth Department has previously addressed the adequacy of Plaintiffs' lay

                testimony regarding their observations of whether working with a defendant's asbestos-containing


                 product released visible dust in their presence. In Dominick v. Charles Minor and Sons. Co., 149


                 A.D.3d 1554 [4th Dept. 2017] Lv Denied 30 NY3d 907 (2017), the Court found that Plaintiffs

                 testimony that he was exposed to asbestos dust from asbestos boards and cement supplied by the


                 Miller Defendants was sufficient and adequate to lay a foundation for the hypothetical question

                 that Plaintiff asked his expert on causation.

                          13. In Stock v. Air & Liquid Systems Corp.. et aL, 2019 N.Y. slip op. 31201(U) (Sup.

                 Ct., Erie Cnty. 2019) (October 2020), the Court affirmed the adequacy of Plaintiff s testimony that

                 while performing work involving component parts of Defendant's products, i.e. gaskets and




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                packing, he was exposed to visible asbestos dust on a routine basis. This foundational testimony


                was then relied upon by Plaintiffs expert who testified that studies of workers involved in tasks

                similar to those performed by Plaintiffs decedent, was sufficient to establish that decedent's

                exposure to such visible dust was a substantial contributing factor to the development of his

                mesothelioma.


                          14. Deponent most respectfully requests that this Court follow the Fourth Department's

                asbestos Decisions in Dominick and Stock and permit Plaintiffs to introduce lay witness testimony

                of Plaintiff regarding his testimony concerning the release of visible dust from use of Defendant's

                asbestos-containing products.



                B. EXCLUDE INADMISSIBLE LAY TESTIMONY REGARDING THE
                          CHEMICAL COMPOSITION OF PRODUCTS

                          15. By this motion, the defendant seeks to preclude any testimony from lay witnesses


                 regarding the asbestos-content of any given product.


                          16. Plaintiffs respectfully request that this Court rule on the propriety of such testimony

                 on a case-by-case basis, at the time of trial.


                          17. Under the motion as written, for example, a plaintiff who recalled buying a

                 replacement gasket labeled, "Asbestos Gasket," could not testify to that fact, because the defendant


                 has arbitrarily determined that only an expert may comment on such things.


                          18. If, of course, a lay witness testifies beyond the scope of their actual knowledge, a


                 mechanism to correct him or her exists. Plaintiffs respectfully submit that there is no need for an


                 overbroad exclusionary order prior to the presentation of proof.


                 C. EXCLUDE PUNITIVE DAMAGES

                          19. By this motion, Defendant improperly seeks partial summary judgment on the issue

                 of punitive damages. A motion m Umine may not be used to obtain relief in the nature of partial




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                summary judgment. See Clermont v. Hillsdale Industries, Inc., 6 A.D.3d 376, supra. The Court


                of Appeals has established that belated summary judgment motions may not be considered,

                regardless of merit. See Brill v. City of New York, 2 N.Y.3d 648 (2004). Accordingly, as a

                procedural matter, this Court should reserve judgment as to whether or not the plaintiffs will be

                permitted to seek punitive damages until after the liability proof in this case has been presented.

                         20. To the extent that Jamesbury argues that punitive damages may not be awarded in


                asbestos-related product liability cases, plaintiffs refer this Court to Racich v. Celotex Corp., 887

                F.2d 393, 396-397 (2nd Ch', 1989) (sustaining an award of punitive damages in a products liability

                case based on failure to warn of the dangers of asbestos and expressly rejecting the argument that


                under New York law the recovery of punitive damages would be inappropriate).

                          21. Deponent requests that this Court hear all of the liability evidence against

                 Defendant Jamesbury. If the jury finds that Jamesbury's conduct was reckless, then there would


                 be a brief punitive damage phase.

                          22. Jamesbury's reliance upon the Fourth Department's Decision in Drabczyk, In re


                 Eighth Judicial District Asbestos Litigation 92 A.D. 3d 1259, 938 N.Y.S.2d 715 (2012) is

                 misplaced.

                          23. In Drabczyk, the Court rejected Defendant's blanket contention that there is no


                 valid line of reasoning for punitive damages by stating:

                                            "We reject Defendant's contention that there is
                                            no valid line of reasoning and permissible
                                            inferences that could lead a rational jury to
                                            conclude that Defendant acted with reckless
                                            disregard for decedent's safety by failing to
                                            warn him of the dangers associated with the use
                                            of its products containing asbestos."


                 See Drabczyk




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                         24. The Courtin Drabczyk went on to state that:


                                           "We therefore conclude that because the jury
                                           found that Defendant acted with reckless
                                           disregard for decedent's safety, the Court did
                                           not abuse its discretion by charging the jury on
                                           the issue of punitive damages."


                See Drabczyk

                         25. The Appellate Court in Drabczvk looked at the liability proof at trial and concluded

                that this evidence did not warrant a punitive damage finding.

                         26. It is respectfully requested that this Court permit Plaintiff to introduce the liability

                evidence against Jamesbury, and only at such time as a jury may find that Jamesbury's conduct


                was reckless, should the Court determine whether this specific evidence is sufficient to let the jury

                decide whether punitive damages are warranted in this case.


                D. OR IN THE ALTERNATIVE BIFURCATE TmAL OF PUNITIVE
                         DAMAGES ISSUES

                          27. The first New York Appellate Court to address the appropriateness of awarding

                punitive damages in a product liability action based on exposure to asbestos, was decided in Racich

                v. Celotex, 887 F.2d 393 (2nd Cir. 1989).

                          28. Since that time, trial judges in the SJDAL have consistently blfurcated punitive

                 damages.


                          29. If, after the compensatory phase, the jury finds that defendant's conduct was


                 reckless, then the parties would move into the punitive damage phase with introduction of evidence


                 ofJamesbmy's profits or financial condition.


                          30. Deponenfs firm will abide by an Order of the Court bifurcating punitive damages

                 and defer introduction of evidence of Jamesbury's profits or current financial status until the


                 punitive phase.




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                E. PROHIBIT THE USE OF TERMS OR LABELS "ASBESTOS INDUSTRY"
                         OR "MEMBER OF THE ASBESTOS INDUSTRY" IN THE PRESENCE OF
                         THE JURY

                          31. By this motion, defendant requests that plaintiffs be precluded from referring to

                Defendants as "asbestos companies" or as part of the "asbestos industry."


                          32. Plaintiffs object to this motion as it seeks to micromanage plaintiffs' counsel's

                rhetorical choices during opening and summation. While certain extremely inflammatory phrases


                 cannot properly be used, defendant does not cite any law which suggests that the term "asbestos


                 industry" is improper.


                          33. At the time Mr. Kamisky was exposed to defendant's asbestos-containing products,


                 defendants made most or all of their income from the sale and installation of asbestos-containing


                 products. They were part of the "asbestos industry". To the extent that the defendants believe the


                 expression to be misleading, it will have ample opportunity at trial to point out what it perceives to be

                 plaintiffs misleading argument.

                 F. EXCLUDE EVIDENCE OF LIABILITY INSURANCE

                          34. It is axiomatic that the wealth of a party is irrelevant to liability, and plaintiffs will

                 not seek to introduce evidence of defendant's liability insurance, assets, net worth, cash on hand,


                 or other such improper information.


                          35. Plaintiffs do, of course, reserve the right to make reference to defendant's age, size


                 and sophistication, in order to meet their burden of proving what it knew or should have known

                 about the hazards of asbestos.


                          36. Plaintiffs will not seek to use the phrase, "Regardless of who pays," or any similarly


                 phrase. Plaintiff does object to the fact that this is not an evidentiary motion, and contends that it

                 is not necessary to craft an elaborate pre-trial order listing what terms counsel may and may not


                 use.




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                G. EXCLUDE ALL REFERENCES TO PRODUCTS NOT AT ISSUE

                         37. Plaintiffs object to this motion as vague and overbroad. Other products


                manufactured by the defendant may be relevant for a number of reasons, including to demonstrate


                that the defendant was a sophisticated manufacturer with a wide range of asbestos-containing


                products. Therefore, plaintiffs request that this Court rule on such evidence, if any is introduced,


                on a case by case basis at the time of trial.



                H. PRECLUDE ALL REFERENCES TO OTHER LAWSUITS INVOLVING
                         NELES-JAMESBURY

                         38. By this motion, defendant seeks to preclude plaintiffs' counsel from making any

                reference to prior actions against it. This motion is extremely overbroad. While counsel is mindful


                that there are certainly circumstances where it would be improper to allude to the existence of


                other pending lawsuits, it is impossible for plaintiffs to exercise their rights to introduce

                interrogatories and deposition testimony from other actions without suggesting that other actions

                exist.


                          39. The fact that there are circumstances where a party may introduce otherwise


                 relevant and admissible testimony from prior actions is well-settled and, indeed, enshrined in the


                 CPLR. See, CPLR § 3117; 4517. In the In Re Eighth Jud. Dist Asbestos Litig. [Rogacki], 190

                 A.D.2d 1008 (4th Dept, 1993), for example, the Fourth Department specifically held that deposition

                 testimony from prior asbestos-related product liability actions was properly admitted. Similarly,

                 the Seventh Judicial District CMO encourages parties to use testimony from prior actions in lieu

                 of taking repetitive corporate depositions.


                          40. Plaintiffs respectfully request that the admissibility of any particular prior

                 testimony be evaluated on a case-by-case basis to determine if they meet the threshold


                 requirements for admissibility at the time that the plaintiffs seek to introduce it.




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                                                            RELIEF REQUESTED

                         41. Based upon the foregoing, plaintiffs most respectfully request that this Court deny

                defendant Jamesbury's motions in limine in full, or, in the alternative, that the Court reserve


                judgment on each item therein until it arises at the time of trial.




                                                                                                           .-'/    I
                                                                                                           '1L

                                                                                             Sean M. Esford


                 Sworn to before me this
                 20th day of October, 2022




             /       ^           /      ^   ^^.
                       Notary Public

                           MVtAA.TIGUC
                           No.Oim433b~lT
                   Notary public- State of New York
                        Qualified in Ene County '"^ ^
                          mission Expires 05/09/20^




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