Letter,Correspondence: Stacey Lynn Brown as Administratrix of the Estate of STEVEN L. HALL, deceased v. A.O. Smith Water Products, Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc., Alfa Laval, Inc., Allegheny Teledyne Incorporated, Individually and as Successor to Allegheny Technologies Incorporated and Farris Valves and/or Sprague Pumps, Amec Construction Management, Inc., Amtrol, Inc., Individually and as Successor to Thrush Products, Inc., Armstrong International, Inc., Auburn Technology, Inc. f/k/a Alco Power, Inc., Atwood & Morrill Co., Inc. d/b/a Weir Valves & Controls USA Inc., Aurora Pump Company, Bechtel Corporation, Blackmer Pump, Borgwarner Morse Tec Llc, Bw/Ip International Co., formerly known as Borg Warner Industrial Products Inc., a former subsidiary of and successor to Borg Warner Corp. and Byron Jackson Pumps, Carrier Corporation, Cbs Corporation, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation, Certain-Teed Corporation, Clark-Reliance Corporation, Individually and as Successor to Jerguson, Cleaver-Brooks Company f/k/a Aqua-Chem, Inc., Courter & Company, Inc., Crane Co., Individually and as Successor to Cochrane, Croll-Reynolds Engineering Company, Inc., Crosby Valve And Gage Company, Crosby Valve, Inc., Cytec Engineered Materials, Inc. f/k/a Fiberite Corporation and a/k/a ICI Composites, Inc., Cytec Industries Inc., Individually and as successor to American Cyanamid Company, Dean Pump Division, Dezurik, Inc., Durez Corporation, E.I. Team, Inc. f/k/a J.L. Murphy, Inc., Electrolux Home Products, Inc., Individually and as Successor to Tappan and Copes-Vulcan, Elliott Turbomachinery Co., Inc., Fairbanks Company (The), Individually and as Successor to Fairbanks Valves, Flowserve Us, Inc., solely as Successor to Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. and Edward Vogt Valve Company, Fmc Corporation, Individually and as Successor to Northern Pump Company, Coffin and Peerless Pump Company, Foster Wheeler, Llc, Gardner Denver, Inc., General Electric Company, Genuine Partscompany, George A. Fuller Company, Georgia-Pacific Corporation, Individually and as successor to Bestwall Gypsum Company, Gg Of Florida, Inc., f/k/a Higbee, Inc., Goodall Rubber Co., Goulds Pumps, Inc., Greene, Tweed & Co., Llp, Individually and as Successor to Palmetto Packings, Grinnell Corporation, Henry Technologies, Inc., Honeywell International, Inc., Individually and f/k/a AlliedSignal, Inc., and as Successor-in-interest to the Bendix Corp., Howden Buffalo, Inc., Individually and as Successor-In-Interest to FB Sturtevant, The Howden Buffalo Group and Buffalo Fan, I.T.T. Industries, Inc., Individually and as successor to Bell & Gossett, Imo Industries, Inc. f/k/a Delaval, Inc., Individually and as Successor to Turbine Equipment Company, Jenkins Bros., John Crane, Inc., Koppers Company, Inc., Koppers Industries, Inc., Maremont Corporation, Individually and as Successor to Grizzly, Metropolitan Life Insurance Co., Morse Diesel, Inc., Morse Diesel International, Inc., Napa Auto Parts a/k/a National Automotive Parts Association, Nash Engineering Company (The), Northrop Grumman Corporation, Individually and as Successor to George A. Fuller Company, Occidental Chemical Corporation, Individually and as Successor to Durez Corporation, Owens-Illinois, Inc., Patterson Pump Company, a Subsidiary of the Gorman-Rupp Company and Individually and as successor to C.H. Wheeler Manufacturing and Griscom Russell, Plastics Engineering Company, Individually and as Successor to Plenco, Pneumo Abex Corporation, Pneumo-Abex Llc, Individually and as Successor to Abex Corporation, a Delaware Corporation, Research-Cottrell, Inc. n/k/a AWT Air Company, Inc., Riley Power, Inc. f/k/a Babcock Borsig Power, Inc. and f/k/a Riley Stoker Corporation d/b/a DB Riley, Inc., Rogers Corporation, Spence Engineering Company, Inc., Spirax Sarco, Inc., Spx Cooling Technologies, Inc., Individually as successor to Marley Cooling Technologies and Marley Cooling Towers, Superior Lidgerwood Mundy Corp., a/k/a Lidgerwood Manufacturing Co., Individually and as Successor to M.T. Davidson Co., Thomas O'Connor & Company, Inc., Currently known as O'Connor Constructors, Inc., Treadwell Corporation, Thrush Co., Inc., Turner Construction Company, Tuthill Corporation, Individually and as Successor to Kinney Vacuum Pump Company, Kinney Pump Company and Murray Turbine, Tyco Flow Control, Inc., Individually and as Successor to Keystone and Grinnell Corporation, Tyco International (Us) Inc., Individually and as Successor to Hancock Valves, Keystone, Lonergan Valves, Union Carbide Corporation, United Conveyor Corporation, Velan Valve Corp., Warren Pumps, Llc, Individually and as Successor to The Quimby Pump Company, Wolff & Munier, Inc., William Powell Company (The), York International Corporation, Individually and as Successor to Frick Company, Yuba Heat Transfer, a division of Connell Limited Partnership n/k/a SPX Heat Transfer LLC, Zurn Industries, Inc. a/k/a and Successor-in-Interest to Erie City Iron Works, R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc., Ace Hardware, Ace Hardware Corporation, Duro Dyne Corporation, Hexion Specialty Chemicals, Inc. F/K/A Borden Chemical, Inc., I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering, Lighttolier Incorporated, Progress Lighting, Inc., Sid Harvey Industries, Inc., Sid Harvey Supply, Inc., Union Pumps, As A Textron Company, American Biltrite, Inc., Individually And Successor To Amtico Floors, Dap, Inc. K/N/A La Mirada Products Co., Inc., Kaiser Gypsum Company, Inc.

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                                                               Segal McCambridge Singer &Mahoney

                          Austin  I  Chicago    I Detroit  I  Houston   I Jersey City  (  New York    I  Philadelphia  I  St. Louis
                                                                      www.smsm.com


                                                                                                             Joel A. Merchant,Esq.
                                                                                                               Direct(212)651-7422
                                                                                                              jmerchant@smsm.com


                   November 4, 2019

                   VIA FIRST CLASS MAIL

                   Justice Barbara Jaffe
                   60 Centre Street
                   New York, New York 10007

                            Re:      Stacev Lvnn Brown, as Administratrix ofthe Estate ofSteven L. Hall, deceased               v. A.O.
                                     Srraith YVater Products,   etal.
                                     Index No.: 190012-2017

                   Dear Justice Jaffe,

                            This office represents defendant Aurora Pump Company("Aurora")in the above referenced matter.
                   Defendant Aurora moves to preclude the following:

                        1)   any testimony relating to the "each and every" exposure theory which lacks any scientific basis;
                        2) any testimony from Bariy Castleman, David Rosner, Gerald Markowitz, and Steven Compton, as
                             state-of-the-art witnesses to testify regarding Aurora's knowledge ofthe alleged hazards ofasbestos
                             and the levels at which asbestos will produce disease;
                        3) Plaintiff's "state of the art" and corporate liability exhibits and witnesses that have no probative
                             value;
                        4) Plaintiff's punitive damages claim against Aurora and exclude any evidence relating to that claim;
                        5) documents unrelated to any product at issue in this case and which have no nexus to it;
                        6) references to regulatory and consensus statement;
                        7) references to Aurora products not at issue in this case;
                        8)   documents post-dating Mr. Hall's alleged exposure around Aurora pumps;
                        9)   any testimony from Dr. Compton including any studies and reports on fiber release that he may
                             rely upon;
                        10) Plaintiff from   producing photographs and/or Day-In-The-Life videos of Plaintiff, Steven Leroy
                             Hall; and
                        11) Plaintifffrom introducing evidence or eliciting testimony about other lawsuits involving Aurora.

                            Aurora further joins in any other defendants' motion to preclude on the same grounds.

                            Lastly, Aurora reserves all rights to move to limit the inclusion of additional experts that were not
                   disclosed as part of Plaintiff's Expert Witness List, Plaintiff Amended Expert Witness List, and/or Fact
                   List, which Plaintiff intends to produce at trial.
                  A.       The Admissibility Standard For Expert Testimony

                           It is well established that all evidence,including expert witness testimony, must be relevant. People
                  v. Scarola, 71 N.Y.2d 769, 777, 525 N.E.2d 728, 530 N.Y.S.2d 83 (1988).                Before expert testimony can
                  be received   in evidence, "the   party seeking to    offer that evidence   has the  burden   of demonstrating the
                  qualifications that make the     witness an   expert."   Id.   An  expert should     possess  "the  requisite  skill,
                  training, education, knowledge        or  experience   from   which   it can  be  assumed    that the   information
                  imparted or the opinion rendered is reliable."        Matott v.   Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645,
                  647 (1979).    Plaintiff's expert testimony cannot be used to establish facts "as to which the expert is not
                  competent to testify." People v. Colon, 238 A.D.2d 18, 21, 667 N.Y.S.2d 692, 694(1 Dept. 1997), appeal
                  dismissed, 92 N.Y.2d 909,680 N.Y.S.2d 50(1998).

                           Therefore, before an expert witness may offer expert testimony, the moving party must:
                          (i)       Qualify the witness as an expert in the particular subject matter on which
                                    he will testify;

                          (ii)      Establish that the proffered testimony lies outside the understanding of a
                                    lay jury; and

                          (iii)     Establish that the purported     expert's testimony is based on facts in the
                                    record or personally known to the witness.

                  See, e.g., Dufel v.   Green, 84 N.Y.2d 795, 797-98, 622 N.Y.S.2d 900, 902 (1995) and Gomez v. New
                  York City Housing Auth., 217 A.D.2d 110, 116-17, 636 N.Y.S.2d 271, 275-76(1 Dept. 1995).

                           New York Courts "have consistently held that expert opinion is proper when it clarifies an issue
                  calling for professional or• technical knowledge,possessed by the `expert' and beyond the ken ofthe typical
                  juror." People v. Hill, 85 N.Y.2d 256, 261,624 N.Y.S.2d 79, 81 (1995)(citations omitted; see also People
                   v. Cronin, 60 N.Y.2d 430,432, 470 N.Y.S.2d 110, 111 (1983).           An expert witness's qualifications and the
                   witness' competence to testify rest in the sound discretion ofthe trial court, as the gatekeepers of evidence.
                  Edgewater Apartments, 216 A.D.2d at 54,627 N.Y.S.2d at 387; Annetta v. Gen. Motors Corp., 158 A.D.2d
                  284, 286, 550 N.Y.S.2d 686, 687(1 Dept. 1990).          While formal education is not necessary, an expert must
                   be qualified through long observation and       actual experience.    PNice by Price v. New     York City Housing
                  Authority, 92 N.Y.2d 537, 559, 684 N.Y.S.2d 143, 146           (1.998). The   scope  of an expert's  testimony must
                   be limited to his area of expertise. Smith v. Woods Constr. Co.,309       A.D.2d   1155,  1156, 764  N.Y.S.2d 749,
                  751 (4 Dept. 2003).

                           While it is well settled and unquestioned law that opinion evidence must be based on facts in the
                                                                                                                                   this
                  record or personally known to the witness, the Court of Appeals recognized two limited exceptions to
                  rule, holding that an expert may rely on out-of-court material       if"it is of a kind accepted   in the profession
                  as  reliable in  forming   a  professional  opinion" or    if it "comes from     a  witness  subject to   full cross-
                                                See, Hambsch v. New      York City Transit Authority, 480 N.Y.S.2d       195, 197;  see
                  examination on the trial."
                                                                                                                              (1 Dept.
                  also, e.g., Moore v. The Brunswick Hosp. Ctr, Inc., 150 A.D.2d 183, 185, 540 N.Y.S.2d 794, 796
                  1989).   An expert may, under certain circumstances, review hearsay evidence and rely upon it in reaching
                                                                                                                            not render
                  an opinion. Id. at 726, Hambsch 480 N.Y.S.2d at 197. However, such opinion testimony "does
                                                                       Neumire,   291  A.D.2d   at 786,  737  N.Y.S.2d   at 460.   The
                  those reports admissible as a matter of law."
                                                                          read to the jury and  it would  be  improper  to  allow their
                  documents may not be admitted. into evidence or
                                                                                                                             (2d Dept.
                  admission. See, e.g., Platovsky v. City ofNew Yof°k, 275 A.D.2d 699,700,713 N.Y.S.2d 358,359
                  2000)and Young v. Fleary, 226 A.D.2d 454, 455, 640 N.Y.S.2d 593, 594             (2  Dept.  1996).
                            Importantly, after a court determines that the expert's testimony is relevant the court"must
                  weigh its probative value against its prejudicial impact." See, e.g., People v. Brown, 194 A.D.2d 443,
                  444, 599 N.Y.S.2d 277, 278 (1 Dept. 1993).          Therefore, as outlined fully below, this Court should
                  preclude the testimony of     Mr.  Mount   and  Drs.  Longo, Egeland, Zhang, Moline, Markowitz and
                  Holstein.

                           Motion To Preclude Any Testimony Relating To The "Each And Eveiy" Exposure Theory

                           Aurora anticipates that Plaintiff will attempt to introduce through its experts, Mr. Mount and Drs.
                  Longo, Egeland, Zhang, Moline, Markowitz and               Holstein, the scientifically   unsupportable causation
                  opinion that every single     occupational exposure to      asbestos that Mr.   Hall  encountered throughout his
                  lifetime is an equal substantial factor in contributing to the causation of his lung cancer.         See Plaintiff's
                  Expert Witness List, Plaintiff's Amended Expert Witness List, and Plaintiff's Exhibit List enclosed herein
                  collectively as Exhibit A.    This opinion is sometimes referred to as the "each and every exposm~e" theory
                  and  is also referred to   as the "single-fiber" theory.    Plaintiff seeks to   use this testimony to    bridge the
                  evidentiary gap against   defendants,  such  asAurora,   where  there isscant evidence   of asbestos exposure   from
                  a specific defendant's product.     The "each and every exposure" theory clouds the        jury's  perspective  with
                  its simplistic, unfounded approach.

                           The "each and every exposure" theory has no generally accepted scientific basis, and its hypothesis
                  cannot be verified,tested or replicated. It is an outcome-driven conclusory opinion, with no scientific merit
                  which is solely devised to establish causation in toxic tort cases.        This Court should preclude Plaintiffls
                  experts from testifying about the "each and every exposure" theory because it is not based upon established
                  scientific methodology or studies, is unverifiable, and fails to satisfy the adequate foundation requirements
                  for opinion testimony. Alternatively, Aurora requests that this Court hold aParker/Frye hearing to establish
                  the propriety of such testimony before it is offered into evidence.

                           A.   As the "Each and      Every Exposure" Theory Lacks Any Basis in Established                 Scientific
                               Methodology It Should Be Precluded

                           In the present case, legal causation requires a consideration of both general and specific causation:
                 (1) whether     Mr. Hall's   claimed   exposure    from  work   around   Aurora   pumps    was   capable   of causing
                  mesothelioma in the general population; and (2) whether Mr. Hall's           claimed   exposure  from   work  around
                  Aurora pumps caused his mesothelioma.          See, In re Joint Eastern &Southern Dist. Asbestos        Litigation  v.
                   United States Mineral Prods. Co., 52 F.3d 1124(2d Cir. 1995); Raynor v. Merrell Pharmaceuticals, Inc.,
                   104 F.3d 1371 (D.C. Cir. 1997); In Re: Breast Implayat Litigation, 11 F. Supp. 2d 1217(D. Colo. 1997).

                           Normally, a treating physician can diagnose a plaintiffls injury using common tools such as x-rays
                  and blood tests, and determine whether such injury is connected to an alleged cause, e.g., using an x-ray to
                  diagnose a broken bone and connect it to a fall.     However, in cases alleging asbestos exposure,the concept
                  of a latency period renders standard diagnostic tools inadequate.        In such cases, a treating physician faces
                  symptoms and unknown or varied exposure history which occurred decades in the past.

                           Determining the cause of Mr. Hall's lung cancer is.not as simple as saying that it was caused by
                  his exposure to asbestos as "even under the best of circumstances, the mechanisms of asbestos-induced
                  cancer   remain   presently  unclear."    Mossman, Bignon, et al., Asbestos: Scientific          Developments     and
                  Implications for Public Policy, Vol. 247 Science 294 (January 1990).            See also In Re Joint Eastern and
                  Southern District Asbestos Litigation, 827 F. Supp. 1014, 1027-1028 (S.D.N.Y. 1993)("Nowhere is the
                  imprecision    confronting   the  epidemiologist   clearer  than  that  posed  by  the  present   state of scientific
                  understanding of the causal relationship between       environmental    and occupational   carcinogens   and cancer.
                  The imprecision of estin7ating the impact of environmental and         occupational   carcinogens   derives from the
                  central uncertainty surrounding the      nature  of" carcinogenesis . . .The statement       by  a group  of  experts
                  convened    by the International    Agency for   Research    on  Cancer . . . in   1980 remains true today: "the
                  mechanisms by which chemicals induce cancer and the developmental stages from initial exposure to frank
                  neoplasia are poorly understood.")

                           It is anticipated that Plaintiff's experts will testify that every breath that Mr. Hall ever took in an
                  environment that had a level of asbestos above background increased his risk of developing mesothelioma.
                  There is no published study which shows by valid epidemiologic principles that every breath taken in an
                  environment above background level increases the risk of mesothelioma. Further, this approach fails to
                  consider dose,-which is the single most important factor in evaluating whether Mr. Hall's alleged exposure
                  from   work around Aurora pumps caused his mesothelioma.              In McClain, the Eleventh Circuit Court of
                  Appeals held that,"[i]n toxic tort cases, scientific knowledge ofthe harmful level of exposure to a chemical
                  plus knowledge that plaintiff was exposed to such quantities are minimal facts necessary to sustain the
                  plaintiffs burden ...    Or, as the Count of Appeals for the Tenth Circuit explained in Mitchell v. Gencorp,
                   165 F.3d 778, 781 (10th Cir.1999),to carry the burden in a toxic tort case, a plaintiff must demonstrate `the
                  levels of exposure that are hazardous to human beings generally as well as the plaintiffs actual level of
                  exposure to the    defendant's toxic substance      before  he  or she  may   recover."'    McClain   v. Metabolife
                  International, Inc., 401 Fad 1233, 1241,66 Fed.R.Evid.Serv. 753(1 ltl'Cir. 2005) (Plaintiff could provide
                  quantity of ephedra product consumed         but was unable to provide any opinions about the general dose-
                  response levels for that product's toxicity, i.e., the     dose or level of exposure     at which it causes harm.
                  Plaintiff's expert opined that any level of exposure        was potentially toxic,   but  the Court found that the
                  statement conflicted with the importance of individual responses to toxins; a toxic agent generally will not
                  cause disease in every person exposed).

                           The New York Court of Appeals has outlined what a medical causation opinion should establish:
                 (1) whether Mr. Hall was exposed to asbestos from any Aurora pump;(2) whether the type of asbestos
                  allegedly used in connection with that product was capable of causing Mr. Hall's disease; and (3) whether
                  Mr. Hall was exposed to a sufficient level of asbestos in conjzrnction with an Aurora pump to cause his....._
                  disease. Parker v. Mobile Oil Corp., 7 N.Y.3d 434, 857 N.E.2d 1114 (2006).

                           The New York Court of Appeals has consistently reaffirmed its holding in Parker requiring experts
                  to offer some evidence of dose to establish causation.        Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801
                 (2016); Cornell v. 360 W. Slst St. Realty, LLC, 22 N.Y.3d 762, 9 N.E.3d 884, 986 N.Y.S.2d 389 (2014).
                  The Court noted that "ParkeN explains that `precise quantification'. or a `dose-response t•elationship' or `an
                  exact numerical value' is not required to       make a showing of specific causation.        Parker by no means,
                  though, dispensed    with  a  plaintiff's burden  to establish  sufficient  exposure  to- a substance  to cause the
                  claimed adverse health effect." Sean R. at 808 (citations omitted);       Cornell  at 784 (citations  omitted).  The
                  Cornell Court held that plaintiff had      to identify the toxin that adversely affected      her  and  quantify  the
                  exposure   to prove specific causation.      "At a   minimum, [...] there     must be   evidence from     which the
                  fact~nder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the
                  kind of harm that the plaintiff claims to have suffered." Sean R. at 809 (citations omitted).           Further, the
                  mere reference to public health agency guidelines as protective measures are inadequate to demonstrate
                  legal causation. PaNker, supra at 448. Therefore, Plaintiffls references to OSHA compliance levels do not
                  demonstrate legal causation.

                           Most recently, in Juni v. A.O. Smith      Water Products Co., the First Department recently affirmed
                  that the standards ofParker,Cornell and Sean R, apply to asbestos cases. Jz~ni v. A.O. Smzth Water Products
                  Co., 148 A.D.3d 233, 236 (lst Dept 2017).         In Juni, the Appellate Division affirmed an order vacating an
                  $11 million verdict where plaintiff claimed to have developed mesothelioma from a friction product.              The
                  Court held, that "there is no valid distinction to be made between the difficulty of establishing exposure to,
                  say benzene in gasoline and exposure to asbestos.        In each type of matter, a foundation must be made to
                  support an expert's conclusion    regarding  causation."  Id. at 236. The Jurai court fui~Cher noted that plaintiffs


                                                                           4
                 "experts   effectively testified  only  in terms of an increased     risk and  association   between   asbestos  and
                 mesothelioma, but     failed  to either  quantify  the  defendant's   exposure   levels or  otherwise   provide  any
                 scientific expression of his exposure level with respect     to" a friction product. Id. at 240.

                          Indeed,the dose-response relationship concept is central to any discussion about medical causation.
                 This dose-response relationship evaluates the amount, intensity and duration of exposure to a given agent,
                 and whether a change in any of those factors causes an increase or decrease in the risk of a given disease.
                 McClain, 401 F.3d at 1241.       As the McClain Court aptly noted, "[t]he expert who avoids or neglects this
                 principle oftoxic torts withoutjustification casts suspicion on the reliability ofhis methodology." McClain,
                 401 F.3d at 1242.

                          As gatekeepers, courts are faced with difficult determinations in toxic tort cases where they must
                 weigh the alleged exposure to a given product against the disease or injury at issue.          The Federal Judicial
                 Center published several articles in the JouNnal ofLaw and Policy in an attempt to          help judges understand
                 how   to  assess  admissibility  issues  in these  cases.   Science foN    Judges I.•  Papers   on  Toxicology   and
                 Epidemiology, 12 J.L. Poly      1 (2003).   As part of this series, Dr. David Eaton, Ph.D., a toxicologist and
                 Professor of Environmental and Occupational Health Sciences at the University of Washington published
                 a paper entitled Scientific Jzrdgment and Toxic Torts - A Primer in Toxicologyfor Judges and Lawyers. See
                 Scientific Judgment and Toxic Torts -A Primer in ToxicologyforJtddges an~LawyeNs, 12 J.L. Poly 5(2003)
                 enclosed herein as Exhibit B. In his article, Dr. Eaton describes some key principles of toxicology that a
                 court should consider in "any attempt to establish whether a chemical exposure was causally related to a
                 specific adverse effect or disease in an individual." See Exhibit B at 9.

                           Dr. Eaton explains that the dose-response relationship is at the forefront ofthese principles, noting
                  that "the   relationship  between   dose   and  effect (dose-response     relationship) is  the  hallmark   of basic
                  toxicology."    See Exhibit B at 15.     "Dose is the single most important factor to consider in         evaluating
                  whether an alleged exposure caused a specific adverse effect." See Exhibit B at 11. Importantly,Dr.Eaton... .
                  states that often "low dose exposures—even for many years—will have no consequence at all, since the body
                  is often  able  to completely    detoxify  low   doses  before they   do  any   damage."    See   Exhibit B    at 13.
                  Furthermore, "for     most   types  of dose-response     relationships  following   chronic   (repeated)   exposure,
                  thresholds exist, such that there is some dose below which even repeated, long-term exposure would not
                  cause an effect in any individual." See Exhibit B at 16. The "each and every exposure" theory simply does
                  not address the most fundamental element for determining causation.

                           Moreover, the "each and every exposure" theory utterly ignores the fact that different asbestos
                  fibers have different potencies and capacity to cause mesothelioma and lung cancer.            It is well-established
                  that "asbestos-containing products do not create similar risks of harm because there are several varieties of
                  asbestos fibers, and they are used in various quantities, even in the same class of product."           Goldman v.
                  Johns-Manville Sales Corp., 514 N.E.2d 691, 697 (Ohio             1987).   Furthermore; asbestos products "have
                  widely   divergent toxicities, with some   asbestos  products  creating a much   greater risk of harm than others."
                  210 East 86`"    Street  Corp.  v. Combustion     Engineering,   Inc., 821   F.Supp.   125, 145 (S.D.N.Y.     1993).
                  Plaintiff's contrived theory fails to   account  for decades   of research  demonstrating    the vast differences  in
                  the measurable dose of asbestos in connection with       the use  and handling   of various  disparate products.

                           Plaintiff's  "each and every exposure" theory is further flawed as it is anticipated that Mr. Mount
                  and Drs. Longo,    Egeland,  Zhang, Moline, Markowitz and Holstein will testify that Mr. Hall's background
                  asbestos   exposures,    amounting    to  millions   of  fibers  over  his  lifetime,  did  not   contribute  to  his
                  mesothelioma.     This inexplicable distinction   between   allasbestos  exposure   and occupational   exposure   isa
                  further example of the flawed nature ofthe "each and every         exposure"  theory.
                           B.   Other Courts Have Evaluated and Rejected this Theory

                           Courts in other jurisdictions have rejected evidence of the "each and every exposure" theory as
                  either unscientific  under a Frye    or DaubeNt analysis, or insufficient for a causation finding.         A  Texas
                  Appellate   Court considered    and   rejected the testimony    of Dr. Hammar, a common          proponent of this
                 "theory" in a lung cancer case because he was unable to "show that the `any exposure' theory is generally
                  accepted in the scientific community —that any exposure to a product that contained asbestos results in a
                  statistically significant increase in the risk of developing mesothelioma."         See Georgia-Pacific Corp. v.
                 Stephens, 239 S.W.3d 304.320-321 (Tex. App-Hous. 2007)(emphasis in origiri~l).

                           In Lindstrom v. A-C Product Liability Trust, 424 F.3d 488,492(6th Cir. 2005), plaintiffs sought to
                  introduce expert testimony that "there is no safe level of asbestos exposure, and that every exposure to
                  asbestos, however slight, was a substantial factor in causing [plaintiff's] disease." Lindstrom, 424 F.3d at
                  493.  The Court affirmed the lower court's finding that the expert's affidavit was insufficient as a matter of
                  law for the plaintiff to avoid summary judgment. Id.        The Court noted that to hold otherwise would render
                  the substantial factor test meaningless. Id.

                           The Superior Court ofPennsylvania rejected similar evidence, emphasizing that a trialjudge should
                  not adopt an    expert's  legal conclusion that is    unsupported    by the  record  and. without common       sense.
                  Summers v. Certainteed Corp., 886 A.2d 240, 244(Pa. Super. 2005).

                           The Summers Court reasoned as follows in rejecting the proffered evidence:

                                   [S]uppose an expert said that if one took a bucket of water and dumped it in the
                                    ocean, that was a "substantial contributing factor" to the size         of the  ocean. [An
                                    expert's] statement saying every breath is a "substantial      contributing  factor"  is not
                                    accurate.  If someone walks past a mechanic changing brakes, he or she is exposed
                                    to asbestos.   If that person worked for thirty years at an asbestos factory making                                 '
                                    lagging, it can hardly be said that the one whiff of the asbestos from the brakes is a
                                   "substantial" factor in causing disease. Id.

                           In Borg-Warner Copp. v. Flores, 232 S.W.3d 765 (Tex. 2007), the Supreme Court of Texas also.
                  rejected the argument that a person's exposure to "some" respirable fibers was sufficient to show that a
                  particular asbestos-containing product was a substantial factor in causing an asbestos-related disease.          As a
                  brake mechanic,    plaintiff used Borg-Warner     brake pads  on five to seven  of the approximately   twenty   brake
                  jobs he performed each week.        Id. at 766.   Plaintiff presented expert testimony that he could have been
                  exposed to "some" respirable asbestos fibers when grinding brake pads or blowing out the housings but did
                  not present any evidence ofthe actual amount of asbestos he might have inhaled. Id. at 767, 771. As such,
                  the   plaintiff's evidence   was   insufficient  to  establish  that  Borg-Warner's     asbestos-containing    brake
                  components were a substantial factor in causing his asbestos-related disease. Id. at 772.           The Court noted
                  that because asbestos is prevalent in the ambient air, a plaintiff must establish a threshold of exposure in
                  order to prove that his asbestosis was caused by a particular product. Id. at 773.

                           The Pennsylvania     Supreme    Court disapproved      of plaintiff's "common" practice      of submitting
                  generalized expert opinion that"each and every exposure" to asbestos is a substantial         contributing  factor to
                  an asbestos-related disease such as mesothelioma. Gregg v. V-JAuto Parts, Inc., 943 A.2d 216(Pa. 2007).
                  The Court noted that such opinions fail to create a jury question, especially when the plaintiff's exposure
                  to a defendant's product is de minimis and the evidence fails to exclude other possible sources of exposure.
                  ra.
                           Here, Plaintiff's experts   offer nothing   mare   than  arr unproven   hypothesis that every exposure,
                  however small,    isa substantial  contributing  causative  factor  of lung  cancer.  No scientific study supports


                                                                            D
                  such an opinion, nor is such a theory generally accepted in the scientific community.            As such, it fails to
                  satisfy the law's foundation requirements     for opinion  testimony   and  should  be excluded.

                           C.   Alternatively, this Court Should Conduct a Frye Hearing to Determine Whether the
                               "Each and Every exposure" Testimony Meets the Admissibility Standard

                          It is important to determine whether this "each and every exposure" theory meets the admissibility
                 standard before it is presented to the jury, as the improper damage is done once a person with impressive
                 credentials has testified.   At a minimum, the Court should conduct a hearing outside the presence of the
                 jury  to  determine   whether    such  "each   and  every   exposure" testimony      meets  the  Frye   standard  for
                 admissibility.

                           During the Kzrchner trial in the New York Supreme Court, Sullivan County, the Court held that
                  plaintiff's expert's opinion that "any exposure is a substantial factor in causing disease is inconsistent with
                  the law of the State of New York."       See extract from Dr. Abraham's trial testimony in Kirchner v Borg-
                   Warner(Index No.2669/2012, Sup. Ct. Sullivan Co., June 10,2014)enclosed herein as Exhibit C. Further,
                  during the   Cantolino   trial in the  New   York   Supreme    Court, New    York   County, Your Honor       granted
                  defendant Fisher Scientific's     motion for a Frye    hearing to assess the sufficiency     of  plaintiffs'experts'
                  opinions with respect to the dose of asbestos from a specific type of product and whether that dose could
                  be a legal cause of plaintiff's disease. Cantolino v. A.O. Smith(Index No. 190211/2012, Sup. Ct. New York
                  Co., July   17, 2014). These decisions demonstrate the increased judicial skepticism of the simplistic and
                  unscientific conclusory "each and every exposure" testimony on asbestos causation.

                           Any opinion proffered by an expert regarding ultimate causation based on the "each and every
                  exposure" hypothesis is not supported        by generally accepted scientific principles and is not subject to
                  testing, replication or proof.  Such an opinion has no evidentiary value.       Thus, opinion testimony that each
    --       -   -and every   exposure  above   background   is-sufficient to increase  the risk of mesothelioma is inadmissible; it
                  is baseless speculation lacking   generally  accepted   scientificfoundation.

                           This Court should preclude Plaintiffls experts from providing any testimony that any of Mr. Hall's
                  claimed work around any Aurora pump was a substantial contributing factor of his mesothelioma without
                  first providing an evidentiary foundation which quantifies the dose as required under Parker. Ifthis Court
                  is not willing to exclude such opinion testimony on the basis of this motion alone, Aurora respectfully
                  requests that that the   Cout-t conduct a Frye     hearing on the    admissibility of such testimony     before that
                  testimony is offered at trial.

                  2.       Motion    To   Preclude    Any    Testimony     From    Barry    Castleman,     Da~rid   Rosner,    Gerald
                           Markowitz      and   Steven   Compton      As   State-o f-the-Art   Witnesses    To   Testify   Regarding
                           Aurora's    Kno~~~ledge    Of The    Altegecl  Hazards     Of Asbestos     And   The   Levels   At  Which
                           Asbestos V'Vill Prod~~ce Diseases

                           Plaintiff intends to call Messrs. Castleman, Rosner, Markowitz and Compton as state-of-the-art
                  witnesses to testify regarding defendants' knowledge ofthe alleged hazards of asbestos and levels at which
                  asbestos will produce     diseases.  See Exhibit A.      Messrs. Castleman, Rosner, Markowitz and Compton
                  should be precluded from testifying because they are not qualified to interpret the content of the collected
                  articles or to explain the underlying scientific principles because they lack the requisite training in the fields
                  of medicine, toxicology, epidemiology, and engineering.

                           Messrs. Castleman, Rosner, Markowitz and Compton are not qualified to provide expert testimony
                  regarding the dangers of asbestos, safe exposure levels and levels at which asbestos exposure will cause
                                                                                                                                 actual
                  disease because thcy do not hold the requisite degrees and have not had the "long observation and
                                                          92  N.Y.2d   537,  559, 684  N.Y.S.2d    143, 14G  (1988).   Thus,  the  only
                  experience" required under Price.

                                                                            7
                  basis for their opinions is their review of numerous medical, scientific and corporate publications, articles,
                  and documents available from the United States government archives.

                          Finally, the opinions of Messrs. Castleman, Rosner, Markowitz and Compton are not the proper
                 subject of expert testimony in that they merely recite the opinions stated in collected articles.        The jury is
                 just  as  capable  of obtaining    this information    without   the testimony    of  Messrs.  Castleman,    Rosner,
                 Markowitz and      Compton.     Finally, the  articles that they  will  rely on  are  unauthenticate  d hearsay   and
                 therefore, their testimony regarding those articles should be precluded.

                           A.   Messrs. Castleman, Rosner, Marko~~s~itz, Compton Do Not Possess the Skills, Training,
                               Education,     Knowledge      or   Experience     to  Offer    Opinions    Regarding      Defendant's
                               Knowledge Regarding the Dangers of Asbestos.


                           It is anticipated that Messrs. Castleman, Rosner, Markowitz and Compton will rely on their review
                  of medical, scientific and other technical articles to render their opinions regarding the state of the art and
                  defendants'    knowledge    regarding   the  hazards   of  asbestos.    However,     Messrs.   Castleman,    Rosner,
                  Markowitz and Compton lack the requisite skills, training, education, knowledge and experience to do so.

                           Dr. Castleman was previously precluded on this exact basis.           In Rutkowski v.    Occidental Chem.
                  Corp., No. 83 C 2339, 1989 WL 32030(N.D. Ill. Feb. 16, 1989), the United               States District Court for the
                  Northern District of Illinois    granted  defendant's motion in limine to bar Dr. Castleman         from   testifying
                  because   he lacked  the knowledge,    skill,training, experience,  and  education   necessary  to assistthe  trier of
                  fact to understand the   evidence.   Id. at * 1. Additionally,   inthe  case of Polito  v. DaimlerChrysl   er Corp.,
                  Index No. 1-2001-008216, filed in the New          York  Supreme    Court,  Monroe   County,   Justice Raymond     E.
                  Cornelius, recognizing that Dr. Castleman is not qualified to        offer testimony  on  the subjects  about  which
                  he was expected to testify and that many ofthe documents about which he planned to testify do not require
                  expert testimony, severely limited Dr. Castleman's testimony at trial. Justice Cornelius did not permit Dr.
                  Castleman to testify regarding the substance of the documents which he reviewed or his interpretation of
                  those documents.

                           Messrs. Castleman, Rosner, Markowitz and Compton simply lack the expertise that qualifies them
                  to interpret and testify about asbestos exposure levels based on historical literature, medical documents and
                  other scientific and technical documents, as well as alleged knowledge by the defendants regarding the
                  effects of inhalation of asbestos fibers based on those documents.        As such, they should be precluded from
                  testifying.

                           B.   The   Testimony    of Messrs. Castleman, Rosner, Markowitz               and  Compton      Should   Be
                               Precluded Because Their Opinions Are Not The P~•oper Subject Of Expert                   Testimoi~►y.

                           One of the prerequisites for the admission of expert testimony is "that its subject matter involves
                  information or questions beyond the ordinary knowledge and experience of the trier of facts."             Matott, 48
                  N.Y.2d at 459, 423 N.Y.S.2d at 647.        "Absent    an inability or incompetence    of jurors  to comprehend    the
                  issues and evaluate the evidence, the opinions of experts `which       intrude  on the province   ofthe jury to draw
                  inferences and conclusions, are both unnecessary and improper."'           Nevins v. GreatAtl. and Pac.     Tea Co.,
                  164 A.D.2d 807, 807-8, 559 N.Y.S. 2d 539, 540 (1 Dept. 1990) (citations omitted).             In DeLong    v. County
                                                                                                                              of expert
                  of Erie, the Court of Appeals stated that the guiding principle in determining the admissibility
                  testimony "is that expert testimony is proper when it would help to clarify an issue calling for professional
                  or technical knowledge, possessed by the expert and beyond the ken of the typical juror."            60 N.Y.2d 296,
                  307, 469 N.Y.S.2d 611, 617 (1983) (citations       omitted).
                           In this case, to the extent that Messrs. Castleman, Rosner, Markowitz and Compton intend to rely
                  upon   the  review  of corporate    records, trade  publications   and  other  non-medical    or scientific  articles,
                  journals or documents in rendering opinions in this case, their testimony should be precluded            because  the
                  review of these documents does not require any particular expertise.          Instead, these documents     are easily
                  understood    by the jury   without the   assistance  of expert testimony.     See  Threadgill v.   Manville   Corp.
                  Asbestos Disease Compensation Fund, 1990 WL 294271 *4. Even if the review of these records required
                  some type of expertise, there is nothing in the education, training or experience of Messrs. Castleman,
                  Rosner, Markowitz and Compton that qualifies them,more than any layperson,to review and interpret these
                  types of records.

                           Accordingly, Messrs. Castleman, Rosner, Markowitz and              Compton    should   be  precluded  from
                  testifying  beyond   their competence     and  where, as   here, the jury  is capable   of reviewing    the material
                  collected by Messrs. Castleman, Rosner, Markowitz and Compton to reach their own conclusions regarding
                  state-of-the-art of alleged corporate knowledge.

                           C.  Messrs. Castleman, Rosner, Markowitz and              Com~fton Lack A Proper Foundation For
                               Their Testimony

                            It cannot  be  disputed   that Messrs. Castleman, Rosner, Markowitz          and   Compton    do  not have
                   personal knowledge of the facts upon which they base their opinions and that their opinions are           not based
                   on  out-of-court   material  derived  from   a  witness  subject to   full cross-examination.      See  Wagman     v.
                   Bradshaw, 292     A.D.2d  84,  86-87,  739  N.Y.S.2d   421, 423  (2d  Dept.  2002).   Messrs.  Castleman,   Rosner,
                   Markowitz and Compton are best characterized as librarians of asbestos research who base their opinions
                   on the  voluminous amount of documents that they           have received    over the   course of decades.     These
                   documents    come    from   various   sources  including   Plaintiffs   counsel.    Messrs.    Castleman,   Rosner,
                   Markowitz and Compton cannot establish that any of the materials or information that they rely on as a
      -       --   basis for their testimony constitutes-(a) facts and materials_in_e~~idence; or(b) material not in evidence that._..
                   is the kind accepted in their profession as a basis in forming an opinion and is accompanied by evidence of
                  its reliability.

                           D.  The Documents that Messrs. Castleman, Rosner, Marko«~itz and Compton Rely Upon
                                Are Inadmissible Hearsay

                           As Messrs. Castleman, Rosner, Markowitz and Compton base their testimony on unauthenticated
                  documents and other information which are inadmissible hearsay, Messrs. Castleman, Rosner, Markowitz
                  and Compton do not have a proper basis for their testimony and it must be excluded.             Prior to admitting a
                  document into evidence, its authenticity must be        established.   See generally,  Richard   T. Farrell, Prince,
                  Richardson    on  Evidence   § 4-203 (llt~' Ed. 1995) ("The       proponent    of an  item  of  real evidence   must
                  demonstrate its genuineness by clear and convincing evidence")citing          People  v. McGee,   49 N.Y.2d   48, 59,
                  424 N.Y.S.2d 157, 163 (1979)("authenticity is established by proof that the offered            evidence   is genuine
                  and that there has been no tampering with it") and People v. Julian,41 N.Y.2d 340, 343-344,392 N.Y.S.2d
                  610, 612(1977).

                           Messrs.   Castleman, Rosner, Markowitz         and  Compton     base  their opinions   on  documents    and
                  materials which are unauthenticated and, therefore, are inadmissible at trial.          See People v.   Brown,   216
                  A.D.2d 737,    738,  628  N.Y.S.2d   835,  836 (3  Dept.  1995).   It isanticipated  that Plaintiff may attempt to
                  argue that the documents that are older than 30 years are admissible under the ancient document rule.
                  However, under New York law, in order to authenticate a document under the "ancient document" rule,the
                                                                                                                                     of
                  party seeking to admit the document must show that it is more than 30 years old,"was in the possession
                       natural custodian" and is "free from      indicatian.s of fraud  or  invalidity."  See  generally,  Richard   T.
                  the
                  Farrell, Prznce, Ricicczru'soya  on  ~videfzce  § 3 124 (11't` Ed.    1995).   The   party  seeking to   admit aged
                                                                                                       of records  or  were  otherwise
                  documents must prove that the documents came from the proper custodian
                  found where expected to be.      Tillman v. Lincoln    WaNehouse Corp., 72 A.D.2d 40, 44, 423 N.Y.S.2d 151,
                  153(1 Dept. 1979).

                           In  addition, the   documents    and  information   that  Messrs, Castleman, Rosner, Markowitz          and
                  Compton will rely on are inadmissible      hearsay  and  in some  instances, hearsay   within hearsay.  In order  for
                  these documents to be admissible, Plaintiff must establish      that the documents    are not hearsay  or fallwithin
                  an exception to the hearsay rule. See Hornbook v. GNeekPeak/PeakResorts, Inc., Index No.99-1172,2002
                  WL 1967928 (Sup. Ct. Tompkins Co.,May 29, 2002)(expert witness "may not rely upon the out-of-court
                  records, opinions    or impression    of treating  doctors   which  were   not admitted    into evidence   under   an
                  independent exception to the rule against hearsay"). Plaintiffcannot establish that the documents fall within
                  an exception to the hearsay rule.

                           In order to circumvent the hearsay rules, Plaintiff may argue that the documents are not hearsay
                  because they are not offered for the truth of the matter asserted, but rather, to show that the defendant had
                  notice ofthe dangers ofasbestos. However,in order to make this argument,Plaintiff must first affirmatively
                  show that defendant was inferentially put on notice by the documents. See George Celotex Corp.,914 F.2d
                  26, 30(2d Cir. 1990).

                           Plaintiff cannot   overcome     the  hurdle  of demonstrating     that Messrs.    Castleman, Rosner     and
                  Markowitz and Compton meet the requirements             of an  expert, and  thus  they  should   be precluded   from
                  testifying at trial.

                  3.       Plaintiffs "State Of The Art" And           Corporate Liability Exhibits And         Witnesses Have No
                           Connection To Aurora        And  Should   Be  Precluded    As They   Have   No  Probative   Value In This
                           Case

                           Plaintiff will attempt to reply on "State of the Art" documents to try to impute knowledge of the
                  dangers of asbestos and asbestos-containing