Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023
EXHIBIT 46
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK CITY
ASBESTOS LITIGATION
THIS DOCUMENT RELATES TO:
Index No.: 190002/2023
DAN ALBASRY , as Trustee of the Estate of NEWAL AL
SAAD, and FIRAS MOHAMMAD, AFFIDAVIT OF
EDWARD BERGERON, BARRISTER
Plaintiffs,
-against-
BARRETTS MINERALS INC., et al.
Defendants.
1, Edward Bergeron, a barrister duly admitted to practice law before the Courts of the
Province of Ontario and the Territory of Nunavut, hereby declare and affirm the following under the
penalties of perjury:
1. I am a Canadian barrister and a Certified Specialist in Civil Litigation through the Law Society
of Ontario. I am the founding partner of Bergeron Clifford, LLP, a personal injury law firm
with offices located throughout Eastern Ontario and its head office at 1 Hyperion Court,
Kingston, Ontario.
2. My law firm, Bergeron Clifford, LLP, is one of the most experienced and largest personal
injury firms in Eastern Ontario, outside the Greater Toronto Area and Ottawa. Since 1995,
my practice was devoted to representing injured clients and their families in personal injury
litigation. I have successfully represented clients in the Ontario Superior Court of Justice,
Ontario Court of Appeals, Financial Services Commission of Ontario and before the Criminal
Injury Compensation Board. I have managed jury trials in several Ontario counties and cities
from Parry Sound to Toronto to Ottawa. In 2004, I received a Distinguished Service Award
from the Ontario Trial Lawyers Association and continue to be active in several law
associations. I was also peer-selected as Fellow of the Litigation Council of America. I am
also recognized by my peers in personal injury law and insurance law by Best Lawyers
Canada and Lexpert.
3. I have no financial interest in the outcome of this litigation. I have no information about the
facts of the case aside from the circumstances involving the motion to dismiss the litigation
from New York.
4. I was asked to describe Canadian law and litigation practice with respect to mesothelioma
claims arising from exposure to cosmetic talc products.
2724218_1
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023
5. Despite our experience and successes, my firm has never accepted a mesothelioma case nor
would I do so in the future in light of the constricted recourse for such cases in Canada.
6. If approached by a client with a prospective mesothelioma case, I would undertake my due
diligence and determine whether the claim could be brought in the United States where the
potential compensation by way of damages is greater. I would thereafter make a bona fide
attempt to connect the prospective client with a qualified American lawyer.
system"
7. Ontario, where the plaintiffs would be required to advance this claim, is a "loser pay
that requires the losing party to compensate the legal fees and disbursements of the winning
party's counsel. In my experience, a general personal injury trial may require the losing party to
pay upwards of $75,000.00 (CDN$) per week of trial time. Our firm was recently awarded
$300,000.00 (CDN$) in adverse costs following a successful two-week trial. These adverse costs
are typically paid on a partial indemnity basis to compensate the winning party for fees and
disbursements. The availability and scale of the adverse costs award depends on the complexity
of the case, the importance of the issues at stake, the conduct of the parties and the outcome of
the litigation among other factors. The risk involved in proceeding to trial is a true and palpable
deterrent to try cases that are high-risk and involve high expense.
8. The Supreme Court of Canada also limits a plaintiff's recovery in personal injury litigation by
capping non-pecuniary general damages. Damages arising from conscious pain and suffering
are capped at $100,000.00 (adjusted for inflation)1. Further, claims arising from loss of care,
death"
guidance and companionship (the equivalent to "wrongful claims in the United
States), though not capped, are subject to very modest awards with the high-water mark for
exceptionally close and intimate family relationships currently at approximately $200,000.00
per claimant. Punitive damages are also modest and restricted to limited circumstances.
9. The right to a jury trial is also not absolute in Canada. A judge considering a motion to strike
a jury notice has broad discretion to determine the mode of trial. Neither party has an
unfettered right to determine the mode of trial and the court has the power to determine
whether justice to the parties will be better served by trying a case with or without a jury.
The court may consider the complexity of the facts and issues to be decided, including the
issue of causation where multiple tortfeasors are involved.
10. As a result of the limitations on personal injury litigation, in particular mesothelioma claims,
there are no lawyers in Canada who I am aware of that have ever run a civil trial for a
mesothelioma claimant to verdict. Aside from the jurisdictional questions that will arise against
the foreign corporations involved, a mesothelioma case would be extremely difficult, expensive
and risky given the aforesaid restrictions, and in light of the technical, legal and medical issues
that require experts in the area of asbestos litigation.
The Bank of Canada provides an online "inflation calculator", which puts $100,000 in 1978 dollars at $432,506.89 in 2023
dollars. See http://www.bankofcanada.ca/rates/related/inflation-calculator/. Settlements, a Canadian McKellar Structed
structured settlement company, also provides a historical accounting of the average non-pecuniary damages upper limits by
month. For example, in May 2023 the non-pecuniary damages upper limits was capped at $447,293.00. Statistics | McKellar
Structured Settlements Inc.
2724218_1
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023
11. The plaintiffs in this matter will have great difficulty retaining counsel to pursue
mesothelioma claims in Canada.
I certify that the foregoing statements made by me are true to the best of my knowledge. I
am aware that if any of the foregoing statements made by me is willfully false, I am subject to the
penalties of perjury.
SWORN REMOTELY at the City of Kingston, in
the County of Frontenac, in the Province of
6th
Ontario, this day of July, 2023 in
accordance with 0.Reg. 431/20, Administering
Oath or Declaration Remotely.
Commissioner for Taking Affidavits Edward V. Bergeron
Sarah Taylor a Commissioner,
etc., Province of Ontario, for
Bergeron Clifford LLP, Barristers
and Solicitors.
Expires August 8, 2024.
2724218_1
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK CITY
ASBESTOS LITIGATION
THIS DOCUMENT RELATES TO:
NYCAL
DAN ALBASRY, as Trustee of the Estate of NEWAL AL
Index No.: 190002/2023
SAAD, and FIRAS MOHAMMAD,
CERTIFICATE OF CONFORMITY
Plaintiffs,
PURSUANT TO CPLR 2309(C)
-against-
BARRETTS MINERALS INC., et al.
Defendants.
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
The undersigned does hereby certify that he is an attorney-at-law duly admitted to practice
in the States of New York, New Jersey, Connecticut and the District of Columbia with a principal
office in the State of New York and is a resident of the State of New Jersey; that he is a person duly
qualified to make this Certificate of Conformity pursuant to the laws of the State of New York; that
the foregoing affidavit by Edward V. Bergeron, Barrister, named in the foregoing instrument taken
before Sarah Taylor, a Commissioner for Taking Affidavits, was taken in the manner prescribed by
such laws of the Province of Ontario, being the province in which it was taken; and that it duly
conforms with such laws and is in all respects valid and effective in such province.
DA . aT R , SQ.
On this, the 7th day of July, 2023, before me, a notary pub ,
personally appeared Daniel LaTerra, Esq., known to me (or
satisfactorily proven) to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same
for the purposes therein contained.
JANVIER ALEXANDRA
Pu°lic
Notary Notary Public, State Of New York
No. 01JA6340656
2724706_1 Qualified in Kings County
Commission Expires April 18, 20
Preview
FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023 EXHIBIT 46 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION THIS DOCUMENT RELATES TO: Index No.: 190002/2023 DAN ALBASRY , as Trustee of the Estate of NEWAL AL SAAD, and FIRAS MOHAMMAD, AFFIDAVIT OF EDWARD BERGERON, BARRISTER Plaintiffs, -against- BARRETTS MINERALS INC., et al. Defendants. 1, Edward Bergeron, a barrister duly admitted to practice law before the Courts of the Province of Ontario and the Territory of Nunavut, hereby declare and affirm the following under the penalties of perjury: 1. I am a Canadian barrister and a Certified Specialist in Civil Litigation through the Law Society of Ontario. I am the founding partner of Bergeron Clifford, LLP, a personal injury law firm with offices located throughout Eastern Ontario and its head office at 1 Hyperion Court, Kingston, Ontario. 2. My law firm, Bergeron Clifford, LLP, is one of the most experienced and largest personal injury firms in Eastern Ontario, outside the Greater Toronto Area and Ottawa. Since 1995, my practice was devoted to representing injured clients and their families in personal injury litigation. I have successfully represented clients in the Ontario Superior Court of Justice, Ontario Court of Appeals, Financial Services Commission of Ontario and before the Criminal Injury Compensation Board. I have managed jury trials in several Ontario counties and cities from Parry Sound to Toronto to Ottawa. In 2004, I received a Distinguished Service Award from the Ontario Trial Lawyers Association and continue to be active in several law associations. I was also peer-selected as Fellow of the Litigation Council of America. I am also recognized by my peers in personal injury law and insurance law by Best Lawyers Canada and Lexpert. 3. I have no financial interest in the outcome of this litigation. I have no information about the facts of the case aside from the circumstances involving the motion to dismiss the litigation from New York. 4. I was asked to describe Canadian law and litigation practice with respect to mesothelioma claims arising from exposure to cosmetic talc products. 2724218_1 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023 5. Despite our experience and successes, my firm has never accepted a mesothelioma case nor would I do so in the future in light of the constricted recourse for such cases in Canada. 6. If approached by a client with a prospective mesothelioma case, I would undertake my due diligence and determine whether the claim could be brought in the United States where the potential compensation by way of damages is greater. I would thereafter make a bona fide attempt to connect the prospective client with a qualified American lawyer. system" 7. Ontario, where the plaintiffs would be required to advance this claim, is a "loser pay that requires the losing party to compensate the legal fees and disbursements of the winning party's counsel. In my experience, a general personal injury trial may require the losing party to pay upwards of $75,000.00 (CDN$) per week of trial time. Our firm was recently awarded $300,000.00 (CDN$) in adverse costs following a successful two-week trial. These adverse costs are typically paid on a partial indemnity basis to compensate the winning party for fees and disbursements. The availability and scale of the adverse costs award depends on the complexity of the case, the importance of the issues at stake, the conduct of the parties and the outcome of the litigation among other factors. The risk involved in proceeding to trial is a true and palpable deterrent to try cases that are high-risk and involve high expense. 8. The Supreme Court of Canada also limits a plaintiff's recovery in personal injury litigation by capping non-pecuniary general damages. Damages arising from conscious pain and suffering are capped at $100,000.00 (adjusted for inflation)1. Further, claims arising from loss of care, death" guidance and companionship (the equivalent to "wrongful claims in the United States), though not capped, are subject to very modest awards with the high-water mark for exceptionally close and intimate family relationships currently at approximately $200,000.00 per claimant. Punitive damages are also modest and restricted to limited circumstances. 9. The right to a jury trial is also not absolute in Canada. A judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial. Neither party has an unfettered right to determine the mode of trial and the court has the power to determine whether justice to the parties will be better served by trying a case with or without a jury. The court may consider the complexity of the facts and issues to be decided, including the issue of causation where multiple tortfeasors are involved. 10. As a result of the limitations on personal injury litigation, in particular mesothelioma claims, there are no lawyers in Canada who I am aware of that have ever run a civil trial for a mesothelioma claimant to verdict. Aside from the jurisdictional questions that will arise against the foreign corporations involved, a mesothelioma case would be extremely difficult, expensive and risky given the aforesaid restrictions, and in light of the technical, legal and medical issues that require experts in the area of asbestos litigation. The Bank of Canada provides an online "inflation calculator", which puts $100,000 in 1978 dollars at $432,506.89 in 2023 dollars. See http://www.bankofcanada.ca/rates/related/inflation-calculator/. Settlements, a Canadian McKellar Structed structured settlement company, also provides a historical accounting of the average non-pecuniary damages upper limits by month. For example, in May 2023 the non-pecuniary damages upper limits was capped at $447,293.00. Statistics | McKellar Structured Settlements Inc. 2724218_1 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023 11. The plaintiffs in this matter will have great difficulty retaining counsel to pursue mesothelioma claims in Canada. I certify that the foregoing statements made by me are true to the best of my knowledge. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to the penalties of perjury. SWORN REMOTELY at the City of Kingston, in the County of Frontenac, in the Province of 6th Ontario, this day of July, 2023 in accordance with 0.Reg. 431/20, Administering Oath or Declaration Remotely. Commissioner for Taking Affidavits Edward V. Bergeron Sarah Taylor a Commissioner, etc., Province of Ontario, for Bergeron Clifford LLP, Barristers and Solicitors. Expires August 8, 2024. 2724218_1 FILED: NEW YORK COUNTY CLERK 07/10/2023 10:29 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 131 RECEIVED NYSCEF: 07/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION THIS DOCUMENT RELATES TO: NYCAL DAN ALBASRY, as Trustee of the Estate of NEWAL AL Index No.: 190002/2023 SAAD, and FIRAS MOHAMMAD, CERTIFICATE OF CONFORMITY Plaintiffs, PURSUANT TO CPLR 2309(C) -against- BARRETTS MINERALS INC., et al. Defendants. STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) The undersigned does hereby certify that he is an attorney-at-law duly admitted to practice in the States of New York, New Jersey, Connecticut and the District of Columbia with a principal office in the State of New York and is a resident of the State of New Jersey; that he is a person duly qualified to make this Certificate of Conformity pursuant to the laws of the State of New York; that the foregoing affidavit by Edward V. Bergeron, Barrister, named in the foregoing instrument taken before Sarah Taylor, a Commissioner for Taking Affidavits, was taken in the manner prescribed by such laws of the Province of Ontario, being the province in which it was taken; and that it duly conforms with such laws and is in all respects valid and effective in such province. DA . aT R , SQ. On this, the 7th day of July, 2023, before me, a notary pub , personally appeared Daniel LaTerra, Esq., known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. JANVIER ALEXANDRA Pu°lic Notary Notary Public, State Of New York No. 01JA6340656 2724706_1 Qualified in Kings County Commission Expires April 18, 20