On November 21, 2022 a
Exhibit,Appendix
was filed
involving a dispute between
Hanora Sarro,
Mark Sarro,
and
Arvinmeritor, Inc.,
Individually And As Successor To Rockwell International,
Bucyrus International Inc.,
Bwdac Inc F K A Bwd Automotive Corp,
Carlisle Industrial Brake & Friction,
Carlisle Motion Control Industries, Inc.,
Case Corporation,
Caterpillar Inc.,
Caterpillar Industrial Inc.,
Individually And As Successor To Towmotor Corporation,
Clark Equipment Company,
Continental Motors Inc,
Continental Motors Inc F K A Teledyne Continental Motors Inc Individually And As Successor To Continental Motors Inc And Continental Motors Company,
Crown Equipment Corporation,
Cummins Engine Company, Inc.,
Dana Companies, Llc
F K A Dana Corporation, Individually And As Successor To Warner Electric Brake & Clutch Company And Cutler-Hammer Inc.,
Eaton Corporation,
Individually And Now Known As Eaton Electrical, Inc. And As Successor To The Vickers Pump Company And Cutler-Hammer, Inc. And Waterbury Pump,
Eis, Inc.,
Electrolux Home Products Inc Individually And As Successor To White Consolidated Industries Gibson White Hercules Engines Hercules Motor Company Hupp Corp Blaw Knox Company,
Euclid-Hitachi Heavy Equipment Inc.,
Federal Mogul Asbestos Personal Injury Trust As Successor To Felt Products Manufacturing Co,
Fenner-America
Successor By Merger To Fenner, Inc., A Delaware Corporation,
Ford Motor Company,
Freightliner Corporation,
Individually And As Successor To Western Star Trucks,
Genuine Parts Company,
Hercules Manufacturing Inc,
Honeywell International, Inc.,
Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp. And Lull,
Husqvarna Professional Products, Inc.,
Hyster-Yale Materials Handling, Inc.,
Jlg Industries, Inc.
Individually And As Successor To Lull,
Joy Global, Inc.,
Joy Global Surface Mining,
Individually And As Successor To Beloit,
Kelsey-Hayes Company,
Individually And As Successor In Interest To Fruehauf Corp.,
Kion North America Corporation,
Komatsu America Corp.,
Komatsu Forest Llc
Individually And As Successor To Valmet And Sisu And Partek And Clark,
Kone, Inc.,
Individually And As Successor To Montgomery Elevator,
Link-Belt Construction Equipment Company,
Lucas Varity Automotive Holdings Company,
Individually And As Successor To Massey Ferguson,
Mack Trucks, Inc.
Individually And As Successor To Brockway,
Mccord Corporation,
Mccord Inc,
Metropolitan Life Insurance Company,
Morse Tec Llc,
F K A Borgwarner Morse Tec Llc And Successor-By-Merger To Borg-Warner Corporation,
Nacco Materials Handling Group, Inc.
Individually And As Successor-In-Interest To Hyster Company And As Successor-In-Interest To Yale Materials Handling Corp.,
Navistar, Inc.,
New York Air Brake Llc,
Otis Elevator Company,
Perkins Engines, Inc.,
Pneumo Abex Corporation,
Pneumo-Abex Llc,
Individually And As Successor To Abex Corporation, A Delaware Corporation,
Reddaway Manufacturing Co., Inc.,
Rockwell Automation, Inc.
Individually And As Successor To Allen Bradley, Timken Heating Business And S. Co., Inc. F K A Scaife Company, As Successor In Interest To Rockwell Spring & Axle Companys Timken Silent Automatic Division,
Scan-Pac Mfg., Inc.,
Spx Corporation
Individually And As Successor To General Signal Corporation And New York Air Brake,
Standard Motor Products, Inc.,
Individually And As Successor To Eis,
Stoughton Trailers,
Stricker Trailers Llc,
Suzuki Motor Of America, Inc.,
Technify Motor Usa Inc Individually And As Successor To Teledyne Continental Motors Inc F K A Continental Motors Inc And Continental Motors Company,
Teledyne Technologies Inc Individually And As Successor To Teledyne Continental Motors Inc F K A Continental Motors Inc Continental Motors Company,
Terex American Crane Corp.,
Terex Corporation
Individually And As Successor In Interest To Terex American Crane, American Hoist & Derrick, American Crane Division, Amhoist, Amdura Corporation And American Crane Corporation,
Terex Cranes Wilmington, Inc.,
Terex Usa Llc,
Trailmobile Parts & Service Corporation,
In Its Own Right And As Successor In Interest To Trailmobile Trail Corporation,
Tvh Parts Co.,
Individually And As Successor To Intrupa,
Twin Disc, Inc.,
Union Carbide Corporation,
Utility Trailer Manufacturing Company,
Volvo Construction Equipment North America, Inc.,
Individually And As Successor-In-Interest To Euclid, Inc.,
Volvo Trucks North America Inc Ind And As Successor To White Consolidated Industries And Diamond Reo And White Motors Hercules Engines And Hercules Motors,
Volvo Trucks North America, Inc.,
Individually And As Successor To White Consolidated Industries And Diamond Reo,
Wabash National Trailer Centers, Inc.,
Western Auto Supply Company,
White Engines Inc,
Yamaha Motor Corporation, Usa,,
for Torts - Asbestos
in the District Court of Albany County.
Preview
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
1
STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
-------------------------------------------------
JANET M. BAILEY, as Executrix of the
estate of GEORGE MILLER, deceased,
Plaintiff,
Index No.:
906347-19
-against-
HYSTER-YALE MATERIALS HANDLING, INC.,
CLARK EQUIPMENT COMPANY,
CATERPILLAR INC., CATERPILLAR INDUSTRIES,
Defendants.
-------------------------------------------------
*ORDER TO SHOW CAUSE*
Albany County Courthouse
16 Eagle Street
Albany, NY 12207
April 27, 2021
BEFORE: HON. ERIN P. GALL
Supreme Court Justice
APPEARANCES: BELLUCK & FOX, LLP
546 Fifth Avenue, 5th Floor
New York, NY 10036
BY: ADAM COOPER, ESQ.
SETH DYMOND, ESQ.
ADAM WOLK, ESQ.
Attorneys for Plaintiff
{Colleen B. Neal, Senior Court Reporter (518) 285-8971}
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
2
APPEARANCES (continued):
GOLDBERG SEGALLA LLP
665 Main Street, Suite 400
Buffalo, NY 14203
BY: JOSEPH WELTER, ESQ.
SUSAN VanGELDER, ESQ.
Attorneys for Defendant Hyster-Yale
Materials Handling, Inc.
MCMAHON, MARTINE & GALLAGHER, LLP
55 Washington Street, Suite 720
Brooklyn, NY 11201
BY: TIMOTHY D. GALLAGHER, ESQ.
MELISSA RYAN-REITBERG, ESQ.
Attorneys for Defendant Clark Equipment
Company
THE COOK GROUP
115 Broadway, Suite 1602
New York, NY 10006
BY: GARY CASIMIR, ESQ.
Attorneys for Defendants Caterpillar, Inc.
Caterpillar Industries
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
3
1 THE COURT: We are here today for motions and
2 orders to show cause to be heard on the Miller case. I'll
3 ask that everyone please place you're appearance on the
4 record, starting with the plaintiffs.
5 MR. COOPER: Adam Cooper from Belluck & Fox for
6 the plaintiffs. And judge, I am going to send a link now
7 to Mr. Dymond because he is joining us for argument.
8 THE COURT: Sure.
9 MR. COOPER: So it will be Seth Dymond,
10 D-Y-M-O-N-D, also from Belluck & Fox, on behalf of the
11 plaintiffs.
12 MR. WOLK: Adam Wolk, Belluck & Fox.
13 THE COURT: Adam, you let me know when you're
14 ready. Defense can place their appearance on the record.
15 MR. WELTER: Sure. Good afternoon, Your Honor.
16 Joe Welter of Goldberg Segalla for Hyster-Yale Group, Inc.
17 MS. VanGELDER: Susan VanGelder, Goldberg
18 Segalla, for Hyster-Yale Group, Inc.
19 MR. GALLAGHER: Timothy D. Gallagher for Clark
20 Equipment Company.
21 MS. RYAN-REITBERG: Melissa Reitberg, McMahon,
22 Martine & Gallagher, for Clark Equipment Company as well.
23 MR. CASIMIR: Good afternoon. Gary Casimir,
24 C-A-S-I-M-I-R, for The Cook Group. We represent defendant
25 Caterpillar Inc. and Caterpillar Industries.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
4
1 THE COURT: Good afternoon, Seth.
2 MR. DYMOND: Hi, Judge, how are you doing?
3 THE COURT: You can hear me, that's good.
4 MR. DYMOND: I apologize for not being there in
5 person, I had another argument this morning on video that
6 I couldn't do in my car while I was driving.
7 THE COURT: That's quite all right. Let me
8 begin by saying that the Court had before it initially the
9 plaintiff's motion for a protective order in striking the
10 notice to admit and I previously granted that and that has
11 been uploaded. So we won't be hearing argument on that,
12 that is all taken care of.
13 But we're going to move on -- we have three
14 other motions before this Court and I'll call them in the
15 following order: Why don't we start with the plaintiff's
16 order to show cause. Seth, I'll ask if you would like to
17 place your argument on the record with regards to your
18 order to show cause asking for the Court to issue an order
19 precluding defendants from cross-examining and/or
20 attempting to utilize the plaintiff's causation expert on
21 defendant's burden under CPLR Article 16 to establish
22 proximate cause against any non-party tortfeasor.
23 I'll allow you to place your argument on the
24 record and then I'll hear from defense.
25 MR. DYMOND: Thank you, Your Honor. Seth
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
5
1 Dymond, from Belluck & Fox, on behalf of the plaintiff. I
2 realized upon filing this motion that we perhaps were not
3 as precise as we could have been in delineating the relief
4 that we're requesting. Our relief is very specific. It's
5 very narrowly tailored.
6 We are not asking that the defendants be
7 precluded from wholesale cross of Dr. Markowitz. We are
8 not asking that they be precluded from exploring asbestos
9 exposure other than to the trial defendants. And we're
10 not asking that they be precluded from exploring things
11 that he discusses in his report.
12 What we are asking is one very narrow thing,
13 which is that they not be permitted to elicit a specific
14 causation opinion from Dr. Markowitz as to non-party or
15 settled tortfeasors. And that is to say that they should
16 not be permitted to ask Dr. Markowitz for his opinion as
17 to whether any non-parties, say for example Rockwell
18 Brakes, was a substantial contributing factor to the
19 development of the decedent's disease.
20 And the predicate for this goes back a hundred
21 years in our jurisprudence. We cited the MetLife case
22 which talks about the legally inconsistent positions. One
23 of the critical cases we cited, which is not addressed at
24 all in the defendants' opposition is the American
25 Association of Bioanalysts from the Third Department,
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
6
1 which was a decision where the Third Department, which we
2 are sitting in, said that it's entirely proper for the
3 Court to preclude a defendant from taking inconsistent
4 legal positions at trial that are irreconcilable.
5 And I think what we're really seeing in
6 opposition is the argument that while this is premature
7 and it should wait until, I guess I'm assuming, the
8 post-verdict or directed verdict stage. And the basis of
9 that is relying on what Judge Shulman did in the
10 McGlynn/Idell case. And we've cited the Idell First
11 Department case.
12 Perhaps I should have put in the transcript from
13 Judge Shulman, but I just wanted to briefly read you the
14 ruling from Judge Shulman at the trial level, which we can
15 provide the transcript to the Court. But it's page 1418.
16 And his ruling is as follows: Quote, what I said you
17 could not do is as the evidence comes in can one then jump
18 in and say oh I would like you to now be my witness to
19 point out whether certain exposures occurred with ABC
20 company or XYZ company. You can't do that, as far as I
21 know. Show me a case to the contrary. I don't believe
22 you can.
23 So what he's actually referring to is not
24 something after the testimony, he's referring to while the
25 witness is testifying contemporaneously. And the
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
7
1 predicate for this is twofold. It's, number one, that the
2 defendants have taken the position that Dr. Markowitz's
3 causation methodology is invalid and insufficient under
4 prevailing case law of Parker and its progeny.
5 And against that backdrop they are attempting to
6 take a legally irreconcilable position which is to say
7 that, okay, we want -- even though we are asserting
8 hardline stance that this is invalid, we're going to use
9 that exact methodology and the exact same witness to prove
10 our Article 16 specific causation element against
11 non-parties.
12 And that presents a legally inconsistent
13 position. But there's a second legally inconsistent
14 position here because the defendants have produced
15 experts, including industrial hygienist Mr. Blake, who has
16 taken the position that none of the decedent's exposure
17 here increased his risk for the development of
18 mesothelioma at all.
19 And there's a wrinkle here regarding the factual
20 element. All of Mr. Miller's exposure was to the exact
21 same type of products. It was friction products and
22 engine gaskets. Brakes, clutches, engine gaskets. That's
23 as to the trial defendants, that's to all of the non-party
24 or several party tortfeasors. So they're all put in the
25 same basket.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
8
1 And that is a situation we submitted based on
2 Idell and the bioanalyst third department case, as well as
3 all the history of legally inconsistent case law that we
4 cited where this is something that should not be permitted
5 on a cross-examination of Dr. Markowitz.
6 And just I will lastly say, Your Honor, that we
7 have no issue with the defendants attempting to prove
8 Article 16 through their own experts. If they want to
9 produce an expert that says the plaintiff's exposure to
10 XYZ company was a substantial contributing factor, that is
11 within their right during their own case in chief.
12 But it is improper to take a legally
13 inconsistent position with our own expert and attempt to
14 make our expert their own expert. And so based on that,
15 Your Honor, we submit that this very narrow, narrow
16 request for preclusion should be granted.
17 THE COURT: Thank you, Mr. Dymond. Who on
18 behalf of the defendants? Mr. Welter, go right ahead.
19 MR. WELTER: Good afternoon, Your Honor. Joe
20 Welter on behalf of Hyster-Yale Group. Judge, a couple
21 things. First, a factual correction. Mr. Dymond just
22 represented to this Court that our industrial hygienist,
23 Charles Blake, has taken a position with respect to all of
24 the exposures in the case. And I would respectfully refer
25 Your Honor to Mr. Blake's report where he specifically
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
9
1 says, quote, George Miller's alleged involvements with
2 Hyster or Yale forklifts did not place him at risk for
3 development of an occupational disease. That is the
4 report that we are relying on at trial. Mr. Blake, at
5 least in the report that we are relying on, doesn't offer
6 opinion with respect to other defendants' products.
7 So to the extent Mr. Dymond is arguing that
8 that's an irreconcilable position, Mr. Blake doesn't take
9 a position in this case on that issue. So factually
10 Mr. Dymond is just wrong with respect to that argument.
11 So let's set that aside for a second.
12 Mr. Dymond also argues that it's an
13 irreconcilable position that we think that Dr. Steven
14 Markowitz should be precluded on general and specific
15 causation, but at the same time turn around and get to
16 cross him to elicit those opinions about other defendants.
17 For me, that's exactly the right reason why this Court
18 should grant our motion to hold a Frye hearing, a Parker
19 hearing, with respect to Steven Markowitz before trial.
20 Before plaintiff's counsel made their motion in
21 limine we made motion in limine to preclude Dr. Markowitz
22 because his opinions are not scientifically reliable in
23 exactly these circumstances, brake and friction cases.
24 His opinions have been precluded in the Juni case. And we
25 think the circumstances are no different here.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
10
1 So that to me is the threshold issue. If this
2 Court does rule that Dr. Markowitz is permitted to testify
3 to this jury, then I think at that point it's up to the
4 jury to decide what his opinion is. And we'll get into in
5 a second or two what Dr. Markowitz's opinion is and how he
6 can't separate one defendant out from a settled defendant.
7 But ultimately it's going to be up to the jury
8 to decide what his opinion is if you rule that it has a
9 foundation in science and otherwise satisfies the New York
10 standard. But we would respectfully submit let's -- we've
11 asked for deposition of Dr. Markowitz and then let's
12 schedule a Parker hearing. We have done that in NYCAL
13 before. Not we, meaning we as the asbestos world. And I
14 think that's appropriate here.
15 But let's get to the third issue. And really
16 this is what makes this case different than the cases
17 Mr. Dymond cites to. The claimed exposure in this case is
18 all friction. Mr. Miller in his trial testimony, which
19 I'm sure the jury will hear, he describes all of the
20 different exposures over the 20 or so years that he
21 encountered.
22 And then he testifies my work with brakes on
23 every single time I worked with brakes, regardless of the
24 settled defendant, named defendant, was the same. My work
25 with clutches was the same. My work with automotive
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
11
1 gaskets was the same. And then he proceeds to give
2 identical descriptions for the entirety of all of the
3 exposures.
4 Now, what Dr. Markowitz says in his report is he
5 says specifically, quote, Mr. Miller describes sanding,
6 grinding, scraping and/or brushing asbestos-containing
7 brakes, clutches and/or engine gaskets and working in the
8 immediate vicinity when others did the same work -- and
9 here's the key -- between the 1960s and the 1980s.
10 He does not identify just these three named
11 defendants. He doesn't identify a defendant-specific
12 opinion related to Hyster-Yale. And by the way, the
13 Hyster-Yale exposure is 14 and a half months between 1967
14 and 1969.
15 Dr. Markowitz simply gives the broad opinion
16 '60s to the '80s. He then goes on to say he also handled
17 new asbestos-containing brakes, gaskets and clutches and
18 reported that they produced airborne dust when he
19 performed his work. Such exposure to associated
20 asbestos-containing airborne dust on a frequent basis --
21 and again, here's the important part -- for over two
22 decades is sufficient to cause a malignant mesothelioma of
23 the pleura.
24 Dr. Markowitz's position is necessarily the
25 entire two decades. It is not just exposure to
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
12
1 Hyster-Yale Group or to the other named defendants. So it
2 is impossible in a case where Mr. Miller says my exposure
3 over the 20-year period to brakes, clutches, gaskets was
4 exactly identical. And then Dr. Markowitz comes in and he
5 says it's that exposure over the entire period that is
6 exactly identical and that contributed that makes it
7 impossible to parse out, for purposes of this trial,
8 certain defendants from other defendants because that's,
9 frankly, not what Dr. Markowitz's opinion is here. This
10 is simply -- his report is actually a repackaged end run
11 around Juni.
12 You know, his opinion -- we know his opinion
13 because he's testified in the past on countless occasions
14 that every exposure substantially contributes. And that's
15 what he's doing here. He's going to be telling this jury
16 every exposure substantially contributes. And if that's
17 his opinion, that's fine, but that's what the jury needs
18 to hear. And that applies equally to any brake
19 manufacturer, any clutch manufacturer, any auto gasket
20 manufacturer, any vehicle manufacturer or supplier that
21 has been named in this case that is no longer present,
22 because they've settled, or to any non-parties that
23 Mr. Miller identified where there's potential liability.
24 All we're doing is asking him to stick with the
25 opinion he's rendered in this case and ultimately let the
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
13
1 jury decide whether all of the other non-named parties
2 should be allocated a share. That's what's been done in
3 New York for decades. You look at the verdict sheets and
4 there's a ton of people on the verdict sheets pretty
5 consistently.
6 You know, the McGlynn case is the same as
7 Shabolt (phonetic) and I talked about that in the Third
8 Department. Again, I think it's distinguishable for the
9 reasons that we said and we respectfully ask on behalf of
10 Hyster-Yale Group, Inc. that plaintiff's motion be denied
11 in its entirety.
12 THE COURT: Thank you, Mr. Welter. Mr. Casimir.
13 MR. DYMOND: If I may briefly, Your Honor?
14 THE COURT: Yes.
15 MR. DYMOND: Number one, Mr. Blake's opinion is
16 not necessarily limited to Hyster. On page 13 of his
17 report he specifically discusses that there is no
18 increased risk associated with any gaskets, brakes or
19 clutches. He's not referring to Hyster individually, he's
20 referring generally to his opinion as to the science which
21 applies to all of the non-parties at issue in this case.
22 So that's number one.
23 Number two, it's interesting that Mr. Welter,
24 rather than really addressing the issue, veered into the
25 preclusionary argument that the defendant has proffered as
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
14
1 to Dr. Markowitz's causation opinion because it's an
2 indication that they don't have much of anything to rely
3 on for this specific motion in limine.
4 And I don't want to delve too deeply into the
5 preclusionary issue except to make a few points. Number
6 one, Dr. Markowitz was not precluded in Juni. He fully
7 testified in Juni. It was a post-verdict decision that
8 was subject to the issue of really lawyering and a gap in
9 the proof, not anything that Dr. Markowitz did or did not
10 say, not to his methodology.
11 Secondly, the Frye request is somewhat of a red
12 herring. It's never been granted before, number one. And
13 number two, I am quite certain that when we rest our case
14 in chief the defendants are going to move for directed
15 verdict on the causation Parker issue irrespective of
16 whatever testimony we present in this case.
17 And that is a clear indication that they have
18 taken the position and are going to continue to take the
19 position that our causation methodology and our causation
20 of proofs are invalid. Then they're going to attempt to
21 turn around and use the very thing they're saying that's
22 invalid to prove their own Article 16 case which is the
23 crux of the motion before Your Honor.
24 And just lastly, the statement from Mr. Welter
25 that Dr. Markowitz is going to opine that all of these
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
15
1 exposures substantially contributed is not true. His
2 testimony is generally that the more exposure you have,
3 the greater your risk, and all of the exposure contributes
4 in total to your overall dose. That is distinct from a
5 legal question of whether any particular defendant's
6 exposure was a substantial contributing factor.
7 And we have the benefit of a large body of case
8 law on this issue which has really given us a roadmap on
9 how to establish causation. But critically, for this
10 particular motion, is that we haven't heard anything from
11 the defendant, case law or factual predicates, to
12 demonstrate that they should be permitted in this instance
13 to cross-examine our expert and make our expert their own
14 on the Article 16 burdens specifically related to specific
15 causation opinions and nothing else. Thank you, Your
16 Honor.
17 THE COURT: Thank you. Mr. Casimir. Well,
18 first I'll see if Mr. Welter wants to respond to that and
19 then I'll call on you, Mr. Casimir.
20 MR. WELTER: Just with respect to just the way
21 this motion was brought and Mr. Dymond's criticism of us
22 for not citing case law. There's a deadline in this case
23 for filing of motions in limine like this with a fair and
24 full opportunity for us to have briefed the issue before
25 Your Honor. They chose -- for reasons we'll talk about
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
16
1 when we get to other issues this afternoon, they chose to
2 wait until about a week before trial before really
3 preparing this case, in our view, from what we're seeing.
4 And so to bring an order to show cause on
5 essentially one day's notice where Ms. VanGelder certainly
6 did put together opposition papers, that's not fair to us.
7 So when he criticized us for not having briefed the issue,
8 frankly, this motion should be denied at this point as
9 untimely. He can't have it both ways.
10 But with respect to Dr. Markowitz's opinion,
11 when he issued his opinion there were a ton of defendants
12 in this case. This opinion applied equally to each one.
13 So when Mr. Dymond tries to argue this is not intended to
14 be an opinion offered against all defendants, when he
15 offered his report that's exactly what they intended to
16 do.
17 And now as defendants settle out, they're simply
18 reimagining and reinterpreting what his actual opinion is.
19 They're trying to game the system in a way where they
20 intentionally craft Dr. Markowitz's opinion in a certain
21 way so that they can back-load this argument when
22 defendants drop out.
23 But that's not the reality. That's not what his
24 opinion is. His opinion is that all of the defendants who
25 were named and all of the exposures that were identified,
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
17
1 they all do contribute. And the jury should know that and
2 we should have the right to lay his opinion bare for the
3 jurors. Thank you, Judge.
4 THE COURT: Thank you. Seth, anything further
5 on that note or can I allow Mr. Casimir to go?
6 MR. DYMOND: No, Your Honor, I have nothing
7 further.
8 THE COURT: Great. Mr. Casimir.
9 MR. CASIMIR: Good afternoon, Your Honor. I
10 will be very brief. Gary Casimir for Caterpillar, Inc.
11 and Caterpillar Industries. I join with Mr. Welter's
12 position concerning the motion in limine and object to the
13 application to preclude.
14 On a procedural basis, I'm not exactly certain
15 if the motion has changed a little bit on argument from
16 what it was in the papers, so the Court should consider
17 that if it has.
18 My position with regard to this motion was with
19 regard to our ability to fully and fairly cross-examine
20 the witness here. What has happened here is an expert has
21 made an opinion and he's going to come in here to a
22 certain extent and narrowly tailor it only to the people
23 in the room.
24 This is opportunity for full and fair
25 cross-examination. And then the jury could also take this
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
18
1 expert to be a bought witness, a person who would say
2 anything that's suitable to the situation. It is fair
3 cross-examination that if he's already reported that and
4 the plaintiff has already settled with 13 other defendants
5 which he opined were also a substantial contributing
6 factor of the disease, we should be allowed to bring that
7 to the attention of the jury.
8 Whether or not we've made a case for specific
9 causation or to make the verdict sheet, to get on the
10 verdict sheet, is an issue for the Court to decide after
11 it hears the entirety of the case.
12 I may choose to take a different position during
13 the course of the trial and argue that my exposure, my
14 limited exposure in this case, for a few months or a few
15 weeks, was insufficient, even under Dr. Markowitz's
16 analysis, to cause disease.
17 So it's a totality of the circumstances here and
18 it's not an opportunity for now -- they want to take a
19 case, a decision, out of context and not give a full and
20 fair opportunity for the Court to hear all of the evidence
21 and pigeonhole us to say that these are the only four
22 people that are gonna get on the verdict sheet knowing
23 that it settled with 13 and sued a substantial number of
24 other people who were identified in an attempt to keep
25 this from the jury's consideration as to whether or not
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
19
1 their expert is being credible or faithful or just a
2 bought witness.
3 These are issues to be considered here. And we
4 don't have to put on a case. That's the other aspect
5 that's a little bit alarming. We can sit back and allow
6 the plaintiffs to put on a case and then assess whether or
7 not they've made their burden. Whether or not the
8 evidence as presented even with cross-examination is
9 sufficient for the case.
10 There's no assessing of the defense case right
11 now because we don't know what case we might put on until
12 they put on their case necessarily. So I ask the Court
13 that this motion is improper at this time, that it be
14 denied, that we should be allowed to have a full and fair
15 opportunity to cross Dr. Markowitz. And I think also that
16 in the end we'll find that the specific causation would be
17 proven in this case concerning the other defendants.
18 Thank you.
19 THE COURT: Mr. Dymond, would you like to
20 respond to Mr. Casimir's argument?
21 MR. DYMOND: Just one very brief point, Your
22 Honor, and I want to go back to the basics because at
23 trial, which is pretty clear I'm sure to everyone in the
24 room, we have the burden as to the trial defendants and
25 what we have to do is we have to prove that there's a
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
20
1 duty, that there was a breach of duty, and that, you know,
2 there was causation.
3 So the defendants in their Article 16 have the
4 exact same burden as to the non-parties that we do against
5 the trial defendants. And that is I think the critical
6 distinction respectively that Mr. Casimir is missing,
7 which is it is the defendant's burden, they have to prove
8 that the non-parties -- that there was a duty, that there
9 was a breach of duty, and that they were a proximate
10 cause.
11 And the critical element is the proximate cause
12 and the specific causation, how can the defendant do that?
13 We have no issue with them doing it in their own case in
14 chief. All we're suggesting is in the context of their
15 Parker arguments and their experts saying there's no
16 increased risk for friction in engine gaskets, that they
17 simply cannot co-opt our own expert to prove their own
18 burden. Thank you, Your Honor.
19 THE COURT: Thank you. Mr. Gallagher.
20 MR. GALLAGHER: Just a couple brief points.
21 First off, when the motion came in it said non-parties.
22 It only said non-parties. Which to me, that's people that
23 weren't sued. So if we just leave off people that weren't
24 sued, I don't think there's any question at all that we're
25 not going to cross-examine those people who weren't sued.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
21
1 It didn't say settled parties, it said non-parties. So
2 the motion addresses something that probably will never
3 come up.
4 The second point is that when we talk about who
5 will be on for Article 16, that is what you will have to
6 do at the end of the case. And just in the last couple of
7 years we crossed Dr. Markowitz on all these issues and
8 judges have gone either way on what they put on in the
9 end, but you can't make that decision until you hear the
10 full cross-examination.
11 And I think the third point that's particularly
12 important in this case is that the only person who is
13 taking a legally incompatible position here would be the
14 plaintiffs. Because it's more than just it's all the same
15 kind as Mr. Welter -- same kind of exposure as Mr. Welter
16 pointed out. None of these defendants mine, mill,
17 manufacture, market asbestos-containing products. We are
18 all industrial companies.
19 So their position is let's say Clark caused this
20 because he worked on a Clark machine. Clark doesn't make
21 brakes, Clark buys brakes from Rockwell. He doesn't want
22 us to talk about Rockwell. If he's just talking about
23 Clark stuff, he can't prove his case. We buy clutches
24 from other people. We don't touch asbestos. We put on
25 this thing that came with asbestos.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
22
1 Gaskets, same thing. We go to the market and
2 put on a gasket. Our thing comes without asbestos parts.
3 So if I get a Rockwell -- you know, let's say I have three
4 Rockwell parts in this, a gasket, a clutch and a break.
5 So they're going to say asbestos caused it but it wasn't
6 Rockwell it was Clark, except that those parts are all
7 Rockwell's. It doesn't even make sense. It's an
8 impossible case to try.
9 If they're not saying gaskets and brakes and
10 clutches cause asbestos, just dismiss us. The only
11 legally incomprehensible position would be that these
12 metal machines with internal combustion engines caused
13 this disease. It's these component parts made by the
14 people that their expert said caused this. So if they're
15 going to say those parts didn't cause it, that's fine. If
16 they're going to say those parts caused it, we have to ask
17 those questions.
18 THE COURT: Thank you, Mr. Gallagher.
19 Mr. Dymond?
20 MR. DYMOND: Your Honor, I just had two points
21 to make in response to that. The first being our motion
22 quite plainly discusses non-party or settled parties and
23 that's entirely consistent with Article 16 and a large
24 body of case law in asbestos litigation indicating that
25 the defendants have an Article 16 burden of proof
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
23
1 irrespective of whether it's a non-party or a settled
2 party.
3 Settled parties don't automatically go on the
4 verdict sheet. They only go on if the defendant
5 establishes a prima facie case of liability against them.
6 And secondly, the argument that well let's just
7 wait and see what happens and see how the testimony pans
8 out, in addition to what I've already mentioned, I wanted
9 to give just a brief exemplar because I think this kind of
10 demonstrates the fallacy of the defendant's argument.
11 So imagine if a plaintiff produced an expert
12 that said asbestos was the sole cause of the plaintiff's
13 mesothelioma and then we had a second expert that said
14 radiation was the sole cause of the plaintiff's
15 mesothelioma and then we came into court and said well we
16 have these two theories, Your Honor, let's wait and see
17 what happens, one of them may work and one of them may
18 not.
19 The defendants would say those are completely
20 legally inconsistent positions and you cannot present both
21 in court. And they would be 100 percent correct. That
22 is, by a correlation, the exact situation we have here
23 regarding defendants and the Article 16 burden. Thank
24 you.
25 THE COURT: Mr. Casimir.
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22
NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024
24
1 MR. CASIMIR: Briefly, Your Honor. There's two
2 points I want to make. As I indicated before, we don't
3 have any burden here. And whatever evidence comes in we
4 can use to argue any position in terms of verdict,
5 directed verdict or what gets on the verdict sheet.
6 Th
Preview
FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 1 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ------------------------------------------------- JANET M. BAILEY, as Executrix of the estate of GEORGE MILLER, deceased, Plaintiff, Index No.: 906347-19 -against- HYSTER-YALE MATERIALS HANDLING, INC., CLARK EQUIPMENT COMPANY, CATERPILLAR INC., CATERPILLAR INDUSTRIES, Defendants. ------------------------------------------------- *ORDER TO SHOW CAUSE* Albany County Courthouse 16 Eagle Street Albany, NY 12207 April 27, 2021 BEFORE: HON. ERIN P. GALL Supreme Court Justice APPEARANCES: BELLUCK & FOX, LLP 546 Fifth Avenue, 5th Floor New York, NY 10036 BY: ADAM COOPER, ESQ. SETH DYMOND, ESQ. ADAM WOLK, ESQ. Attorneys for Plaintiff {Colleen B. Neal, Senior Court Reporter (518) 285-8971} FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 2 APPEARANCES (continued): GOLDBERG SEGALLA LLP 665 Main Street, Suite 400 Buffalo, NY 14203 BY: JOSEPH WELTER, ESQ. SUSAN VanGELDER, ESQ. Attorneys for Defendant Hyster-Yale Materials Handling, Inc. MCMAHON, MARTINE & GALLAGHER, LLP 55 Washington Street, Suite 720 Brooklyn, NY 11201 BY: TIMOTHY D. GALLAGHER, ESQ. MELISSA RYAN-REITBERG, ESQ. Attorneys for Defendant Clark Equipment Company THE COOK GROUP 115 Broadway, Suite 1602 New York, NY 10006 BY: GARY CASIMIR, ESQ. Attorneys for Defendants Caterpillar, Inc. Caterpillar Industries FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 3 1 THE COURT: We are here today for motions and 2 orders to show cause to be heard on the Miller case. I'll 3 ask that everyone please place you're appearance on the 4 record, starting with the plaintiffs. 5 MR. COOPER: Adam Cooper from Belluck & Fox for 6 the plaintiffs. And judge, I am going to send a link now 7 to Mr. Dymond because he is joining us for argument. 8 THE COURT: Sure. 9 MR. COOPER: So it will be Seth Dymond, 10 D-Y-M-O-N-D, also from Belluck & Fox, on behalf of the 11 plaintiffs. 12 MR. WOLK: Adam Wolk, Belluck & Fox. 13 THE COURT: Adam, you let me know when you're 14 ready. Defense can place their appearance on the record. 15 MR. WELTER: Sure. Good afternoon, Your Honor. 16 Joe Welter of Goldberg Segalla for Hyster-Yale Group, Inc. 17 MS. VanGELDER: Susan VanGelder, Goldberg 18 Segalla, for Hyster-Yale Group, Inc. 19 MR. GALLAGHER: Timothy D. Gallagher for Clark 20 Equipment Company. 21 MS. RYAN-REITBERG: Melissa Reitberg, McMahon, 22 Martine & Gallagher, for Clark Equipment Company as well. 23 MR. CASIMIR: Good afternoon. Gary Casimir, 24 C-A-S-I-M-I-R, for The Cook Group. We represent defendant 25 Caterpillar Inc. and Caterpillar Industries. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 4 1 THE COURT: Good afternoon, Seth. 2 MR. DYMOND: Hi, Judge, how are you doing? 3 THE COURT: You can hear me, that's good. 4 MR. DYMOND: I apologize for not being there in 5 person, I had another argument this morning on video that 6 I couldn't do in my car while I was driving. 7 THE COURT: That's quite all right. Let me 8 begin by saying that the Court had before it initially the 9 plaintiff's motion for a protective order in striking the 10 notice to admit and I previously granted that and that has 11 been uploaded. So we won't be hearing argument on that, 12 that is all taken care of. 13 But we're going to move on -- we have three 14 other motions before this Court and I'll call them in the 15 following order: Why don't we start with the plaintiff's 16 order to show cause. Seth, I'll ask if you would like to 17 place your argument on the record with regards to your 18 order to show cause asking for the Court to issue an order 19 precluding defendants from cross-examining and/or 20 attempting to utilize the plaintiff's causation expert on 21 defendant's burden under CPLR Article 16 to establish 22 proximate cause against any non-party tortfeasor. 23 I'll allow you to place your argument on the 24 record and then I'll hear from defense. 25 MR. DYMOND: Thank you, Your Honor. Seth FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 5 1 Dymond, from Belluck & Fox, on behalf of the plaintiff. I 2 realized upon filing this motion that we perhaps were not 3 as precise as we could have been in delineating the relief 4 that we're requesting. Our relief is very specific. It's 5 very narrowly tailored. 6 We are not asking that the defendants be 7 precluded from wholesale cross of Dr. Markowitz. We are 8 not asking that they be precluded from exploring asbestos 9 exposure other than to the trial defendants. And we're 10 not asking that they be precluded from exploring things 11 that he discusses in his report. 12 What we are asking is one very narrow thing, 13 which is that they not be permitted to elicit a specific 14 causation opinion from Dr. Markowitz as to non-party or 15 settled tortfeasors. And that is to say that they should 16 not be permitted to ask Dr. Markowitz for his opinion as 17 to whether any non-parties, say for example Rockwell 18 Brakes, was a substantial contributing factor to the 19 development of the decedent's disease. 20 And the predicate for this goes back a hundred 21 years in our jurisprudence. We cited the MetLife case 22 which talks about the legally inconsistent positions. One 23 of the critical cases we cited, which is not addressed at 24 all in the defendants' opposition is the American 25 Association of Bioanalysts from the Third Department, FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 6 1 which was a decision where the Third Department, which we 2 are sitting in, said that it's entirely proper for the 3 Court to preclude a defendant from taking inconsistent 4 legal positions at trial that are irreconcilable. 5 And I think what we're really seeing in 6 opposition is the argument that while this is premature 7 and it should wait until, I guess I'm assuming, the 8 post-verdict or directed verdict stage. And the basis of 9 that is relying on what Judge Shulman did in the 10 McGlynn/Idell case. And we've cited the Idell First 11 Department case. 12 Perhaps I should have put in the transcript from 13 Judge Shulman, but I just wanted to briefly read you the 14 ruling from Judge Shulman at the trial level, which we can 15 provide the transcript to the Court. But it's page 1418. 16 And his ruling is as follows: Quote, what I said you 17 could not do is as the evidence comes in can one then jump 18 in and say oh I would like you to now be my witness to 19 point out whether certain exposures occurred with ABC 20 company or XYZ company. You can't do that, as far as I 21 know. Show me a case to the contrary. I don't believe 22 you can. 23 So what he's actually referring to is not 24 something after the testimony, he's referring to while the 25 witness is testifying contemporaneously. And the FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 7 1 predicate for this is twofold. It's, number one, that the 2 defendants have taken the position that Dr. Markowitz's 3 causation methodology is invalid and insufficient under 4 prevailing case law of Parker and its progeny. 5 And against that backdrop they are attempting to 6 take a legally irreconcilable position which is to say 7 that, okay, we want -- even though we are asserting 8 hardline stance that this is invalid, we're going to use 9 that exact methodology and the exact same witness to prove 10 our Article 16 specific causation element against 11 non-parties. 12 And that presents a legally inconsistent 13 position. But there's a second legally inconsistent 14 position here because the defendants have produced 15 experts, including industrial hygienist Mr. Blake, who has 16 taken the position that none of the decedent's exposure 17 here increased his risk for the development of 18 mesothelioma at all. 19 And there's a wrinkle here regarding the factual 20 element. All of Mr. Miller's exposure was to the exact 21 same type of products. It was friction products and 22 engine gaskets. Brakes, clutches, engine gaskets. That's 23 as to the trial defendants, that's to all of the non-party 24 or several party tortfeasors. So they're all put in the 25 same basket. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 8 1 And that is a situation we submitted based on 2 Idell and the bioanalyst third department case, as well as 3 all the history of legally inconsistent case law that we 4 cited where this is something that should not be permitted 5 on a cross-examination of Dr. Markowitz. 6 And just I will lastly say, Your Honor, that we 7 have no issue with the defendants attempting to prove 8 Article 16 through their own experts. If they want to 9 produce an expert that says the plaintiff's exposure to 10 XYZ company was a substantial contributing factor, that is 11 within their right during their own case in chief. 12 But it is improper to take a legally 13 inconsistent position with our own expert and attempt to 14 make our expert their own expert. And so based on that, 15 Your Honor, we submit that this very narrow, narrow 16 request for preclusion should be granted. 17 THE COURT: Thank you, Mr. Dymond. Who on 18 behalf of the defendants? Mr. Welter, go right ahead. 19 MR. WELTER: Good afternoon, Your Honor. Joe 20 Welter on behalf of Hyster-Yale Group. Judge, a couple 21 things. First, a factual correction. Mr. Dymond just 22 represented to this Court that our industrial hygienist, 23 Charles Blake, has taken a position with respect to all of 24 the exposures in the case. And I would respectfully refer 25 Your Honor to Mr. Blake's report where he specifically FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 9 1 says, quote, George Miller's alleged involvements with 2 Hyster or Yale forklifts did not place him at risk for 3 development of an occupational disease. That is the 4 report that we are relying on at trial. Mr. Blake, at 5 least in the report that we are relying on, doesn't offer 6 opinion with respect to other defendants' products. 7 So to the extent Mr. Dymond is arguing that 8 that's an irreconcilable position, Mr. Blake doesn't take 9 a position in this case on that issue. So factually 10 Mr. Dymond is just wrong with respect to that argument. 11 So let's set that aside for a second. 12 Mr. Dymond also argues that it's an 13 irreconcilable position that we think that Dr. Steven 14 Markowitz should be precluded on general and specific 15 causation, but at the same time turn around and get to 16 cross him to elicit those opinions about other defendants. 17 For me, that's exactly the right reason why this Court 18 should grant our motion to hold a Frye hearing, a Parker 19 hearing, with respect to Steven Markowitz before trial. 20 Before plaintiff's counsel made their motion in 21 limine we made motion in limine to preclude Dr. Markowitz 22 because his opinions are not scientifically reliable in 23 exactly these circumstances, brake and friction cases. 24 His opinions have been precluded in the Juni case. And we 25 think the circumstances are no different here. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 10 1 So that to me is the threshold issue. If this 2 Court does rule that Dr. Markowitz is permitted to testify 3 to this jury, then I think at that point it's up to the 4 jury to decide what his opinion is. And we'll get into in 5 a second or two what Dr. Markowitz's opinion is and how he 6 can't separate one defendant out from a settled defendant. 7 But ultimately it's going to be up to the jury 8 to decide what his opinion is if you rule that it has a 9 foundation in science and otherwise satisfies the New York 10 standard. But we would respectfully submit let's -- we've 11 asked for deposition of Dr. Markowitz and then let's 12 schedule a Parker hearing. We have done that in NYCAL 13 before. Not we, meaning we as the asbestos world. And I 14 think that's appropriate here. 15 But let's get to the third issue. And really 16 this is what makes this case different than the cases 17 Mr. Dymond cites to. The claimed exposure in this case is 18 all friction. Mr. Miller in his trial testimony, which 19 I'm sure the jury will hear, he describes all of the 20 different exposures over the 20 or so years that he 21 encountered. 22 And then he testifies my work with brakes on 23 every single time I worked with brakes, regardless of the 24 settled defendant, named defendant, was the same. My work 25 with clutches was the same. My work with automotive FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 11 1 gaskets was the same. And then he proceeds to give 2 identical descriptions for the entirety of all of the 3 exposures. 4 Now, what Dr. Markowitz says in his report is he 5 says specifically, quote, Mr. Miller describes sanding, 6 grinding, scraping and/or brushing asbestos-containing 7 brakes, clutches and/or engine gaskets and working in the 8 immediate vicinity when others did the same work -- and 9 here's the key -- between the 1960s and the 1980s. 10 He does not identify just these three named 11 defendants. He doesn't identify a defendant-specific 12 opinion related to Hyster-Yale. And by the way, the 13 Hyster-Yale exposure is 14 and a half months between 1967 14 and 1969. 15 Dr. Markowitz simply gives the broad opinion 16 '60s to the '80s. He then goes on to say he also handled 17 new asbestos-containing brakes, gaskets and clutches and 18 reported that they produced airborne dust when he 19 performed his work. Such exposure to associated 20 asbestos-containing airborne dust on a frequent basis -- 21 and again, here's the important part -- for over two 22 decades is sufficient to cause a malignant mesothelioma of 23 the pleura. 24 Dr. Markowitz's position is necessarily the 25 entire two decades. It is not just exposure to FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 12 1 Hyster-Yale Group or to the other named defendants. So it 2 is impossible in a case where Mr. Miller says my exposure 3 over the 20-year period to brakes, clutches, gaskets was 4 exactly identical. And then Dr. Markowitz comes in and he 5 says it's that exposure over the entire period that is 6 exactly identical and that contributed that makes it 7 impossible to parse out, for purposes of this trial, 8 certain defendants from other defendants because that's, 9 frankly, not what Dr. Markowitz's opinion is here. This 10 is simply -- his report is actually a repackaged end run 11 around Juni. 12 You know, his opinion -- we know his opinion 13 because he's testified in the past on countless occasions 14 that every exposure substantially contributes. And that's 15 what he's doing here. He's going to be telling this jury 16 every exposure substantially contributes. And if that's 17 his opinion, that's fine, but that's what the jury needs 18 to hear. And that applies equally to any brake 19 manufacturer, any clutch manufacturer, any auto gasket 20 manufacturer, any vehicle manufacturer or supplier that 21 has been named in this case that is no longer present, 22 because they've settled, or to any non-parties that 23 Mr. Miller identified where there's potential liability. 24 All we're doing is asking him to stick with the 25 opinion he's rendered in this case and ultimately let the FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 13 1 jury decide whether all of the other non-named parties 2 should be allocated a share. That's what's been done in 3 New York for decades. You look at the verdict sheets and 4 there's a ton of people on the verdict sheets pretty 5 consistently. 6 You know, the McGlynn case is the same as 7 Shabolt (phonetic) and I talked about that in the Third 8 Department. Again, I think it's distinguishable for the 9 reasons that we said and we respectfully ask on behalf of 10 Hyster-Yale Group, Inc. that plaintiff's motion be denied 11 in its entirety. 12 THE COURT: Thank you, Mr. Welter. Mr. Casimir. 13 MR. DYMOND: If I may briefly, Your Honor? 14 THE COURT: Yes. 15 MR. DYMOND: Number one, Mr. Blake's opinion is 16 not necessarily limited to Hyster. On page 13 of his 17 report he specifically discusses that there is no 18 increased risk associated with any gaskets, brakes or 19 clutches. He's not referring to Hyster individually, he's 20 referring generally to his opinion as to the science which 21 applies to all of the non-parties at issue in this case. 22 So that's number one. 23 Number two, it's interesting that Mr. Welter, 24 rather than really addressing the issue, veered into the 25 preclusionary argument that the defendant has proffered as FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 14 1 to Dr. Markowitz's causation opinion because it's an 2 indication that they don't have much of anything to rely 3 on for this specific motion in limine. 4 And I don't want to delve too deeply into the 5 preclusionary issue except to make a few points. Number 6 one, Dr. Markowitz was not precluded in Juni. He fully 7 testified in Juni. It was a post-verdict decision that 8 was subject to the issue of really lawyering and a gap in 9 the proof, not anything that Dr. Markowitz did or did not 10 say, not to his methodology. 11 Secondly, the Frye request is somewhat of a red 12 herring. It's never been granted before, number one. And 13 number two, I am quite certain that when we rest our case 14 in chief the defendants are going to move for directed 15 verdict on the causation Parker issue irrespective of 16 whatever testimony we present in this case. 17 And that is a clear indication that they have 18 taken the position and are going to continue to take the 19 position that our causation methodology and our causation 20 of proofs are invalid. Then they're going to attempt to 21 turn around and use the very thing they're saying that's 22 invalid to prove their own Article 16 case which is the 23 crux of the motion before Your Honor. 24 And just lastly, the statement from Mr. Welter 25 that Dr. Markowitz is going to opine that all of these FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 15 1 exposures substantially contributed is not true. His 2 testimony is generally that the more exposure you have, 3 the greater your risk, and all of the exposure contributes 4 in total to your overall dose. That is distinct from a 5 legal question of whether any particular defendant's 6 exposure was a substantial contributing factor. 7 And we have the benefit of a large body of case 8 law on this issue which has really given us a roadmap on 9 how to establish causation. But critically, for this 10 particular motion, is that we haven't heard anything from 11 the defendant, case law or factual predicates, to 12 demonstrate that they should be permitted in this instance 13 to cross-examine our expert and make our expert their own 14 on the Article 16 burdens specifically related to specific 15 causation opinions and nothing else. Thank you, Your 16 Honor. 17 THE COURT: Thank you. Mr. Casimir. Well, 18 first I'll see if Mr. Welter wants to respond to that and 19 then I'll call on you, Mr. Casimir. 20 MR. WELTER: Just with respect to just the way 21 this motion was brought and Mr. Dymond's criticism of us 22 for not citing case law. There's a deadline in this case 23 for filing of motions in limine like this with a fair and 24 full opportunity for us to have briefed the issue before 25 Your Honor. They chose -- for reasons we'll talk about FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 16 1 when we get to other issues this afternoon, they chose to 2 wait until about a week before trial before really 3 preparing this case, in our view, from what we're seeing. 4 And so to bring an order to show cause on 5 essentially one day's notice where Ms. VanGelder certainly 6 did put together opposition papers, that's not fair to us. 7 So when he criticized us for not having briefed the issue, 8 frankly, this motion should be denied at this point as 9 untimely. He can't have it both ways. 10 But with respect to Dr. Markowitz's opinion, 11 when he issued his opinion there were a ton of defendants 12 in this case. This opinion applied equally to each one. 13 So when Mr. Dymond tries to argue this is not intended to 14 be an opinion offered against all defendants, when he 15 offered his report that's exactly what they intended to 16 do. 17 And now as defendants settle out, they're simply 18 reimagining and reinterpreting what his actual opinion is. 19 They're trying to game the system in a way where they 20 intentionally craft Dr. Markowitz's opinion in a certain 21 way so that they can back-load this argument when 22 defendants drop out. 23 But that's not the reality. That's not what his 24 opinion is. His opinion is that all of the defendants who 25 were named and all of the exposures that were identified, FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 17 1 they all do contribute. And the jury should know that and 2 we should have the right to lay his opinion bare for the 3 jurors. Thank you, Judge. 4 THE COURT: Thank you. Seth, anything further 5 on that note or can I allow Mr. Casimir to go? 6 MR. DYMOND: No, Your Honor, I have nothing 7 further. 8 THE COURT: Great. Mr. Casimir. 9 MR. CASIMIR: Good afternoon, Your Honor. I 10 will be very brief. Gary Casimir for Caterpillar, Inc. 11 and Caterpillar Industries. I join with Mr. Welter's 12 position concerning the motion in limine and object to the 13 application to preclude. 14 On a procedural basis, I'm not exactly certain 15 if the motion has changed a little bit on argument from 16 what it was in the papers, so the Court should consider 17 that if it has. 18 My position with regard to this motion was with 19 regard to our ability to fully and fairly cross-examine 20 the witness here. What has happened here is an expert has 21 made an opinion and he's going to come in here to a 22 certain extent and narrowly tailor it only to the people 23 in the room. 24 This is opportunity for full and fair 25 cross-examination. And then the jury could also take this FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 18 1 expert to be a bought witness, a person who would say 2 anything that's suitable to the situation. It is fair 3 cross-examination that if he's already reported that and 4 the plaintiff has already settled with 13 other defendants 5 which he opined were also a substantial contributing 6 factor of the disease, we should be allowed to bring that 7 to the attention of the jury. 8 Whether or not we've made a case for specific 9 causation or to make the verdict sheet, to get on the 10 verdict sheet, is an issue for the Court to decide after 11 it hears the entirety of the case. 12 I may choose to take a different position during 13 the course of the trial and argue that my exposure, my 14 limited exposure in this case, for a few months or a few 15 weeks, was insufficient, even under Dr. Markowitz's 16 analysis, to cause disease. 17 So it's a totality of the circumstances here and 18 it's not an opportunity for now -- they want to take a 19 case, a decision, out of context and not give a full and 20 fair opportunity for the Court to hear all of the evidence 21 and pigeonhole us to say that these are the only four 22 people that are gonna get on the verdict sheet knowing 23 that it settled with 13 and sued a substantial number of 24 other people who were identified in an attempt to keep 25 this from the jury's consideration as to whether or not FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 19 1 their expert is being credible or faithful or just a 2 bought witness. 3 These are issues to be considered here. And we 4 don't have to put on a case. That's the other aspect 5 that's a little bit alarming. We can sit back and allow 6 the plaintiffs to put on a case and then assess whether or 7 not they've made their burden. Whether or not the 8 evidence as presented even with cross-examination is 9 sufficient for the case. 10 There's no assessing of the defense case right 11 now because we don't know what case we might put on until 12 they put on their case necessarily. So I ask the Court 13 that this motion is improper at this time, that it be 14 denied, that we should be allowed to have a full and fair 15 opportunity to cross Dr. Markowitz. And I think also that 16 in the end we'll find that the specific causation would be 17 proven in this case concerning the other defendants. 18 Thank you. 19 THE COURT: Mr. Dymond, would you like to 20 respond to Mr. Casimir's argument? 21 MR. DYMOND: Just one very brief point, Your 22 Honor, and I want to go back to the basics because at 23 trial, which is pretty clear I'm sure to everyone in the 24 room, we have the burden as to the trial defendants and 25 what we have to do is we have to prove that there's a FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 20 1 duty, that there was a breach of duty, and that, you know, 2 there was causation. 3 So the defendants in their Article 16 have the 4 exact same burden as to the non-parties that we do against 5 the trial defendants. And that is I think the critical 6 distinction respectively that Mr. Casimir is missing, 7 which is it is the defendant's burden, they have to prove 8 that the non-parties -- that there was a duty, that there 9 was a breach of duty, and that they were a proximate 10 cause. 11 And the critical element is the proximate cause 12 and the specific causation, how can the defendant do that? 13 We have no issue with them doing it in their own case in 14 chief. All we're suggesting is in the context of their 15 Parker arguments and their experts saying there's no 16 increased risk for friction in engine gaskets, that they 17 simply cannot co-opt our own expert to prove their own 18 burden. Thank you, Your Honor. 19 THE COURT: Thank you. Mr. Gallagher. 20 MR. GALLAGHER: Just a couple brief points. 21 First off, when the motion came in it said non-parties. 22 It only said non-parties. Which to me, that's people that 23 weren't sued. So if we just leave off people that weren't 24 sued, I don't think there's any question at all that we're 25 not going to cross-examine those people who weren't sued. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 21 1 It didn't say settled parties, it said non-parties. So 2 the motion addresses something that probably will never 3 come up. 4 The second point is that when we talk about who 5 will be on for Article 16, that is what you will have to 6 do at the end of the case. And just in the last couple of 7 years we crossed Dr. Markowitz on all these issues and 8 judges have gone either way on what they put on in the 9 end, but you can't make that decision until you hear the 10 full cross-examination. 11 And I think the third point that's particularly 12 important in this case is that the only person who is 13 taking a legally incompatible position here would be the 14 plaintiffs. Because it's more than just it's all the same 15 kind as Mr. Welter -- same kind of exposure as Mr. Welter 16 pointed out. None of these defendants mine, mill, 17 manufacture, market asbestos-containing products. We are 18 all industrial companies. 19 So their position is let's say Clark caused this 20 because he worked on a Clark machine. Clark doesn't make 21 brakes, Clark buys brakes from Rockwell. He doesn't want 22 us to talk about Rockwell. If he's just talking about 23 Clark stuff, he can't prove his case. We buy clutches 24 from other people. We don't touch asbestos. We put on 25 this thing that came with asbestos. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 22 1 Gaskets, same thing. We go to the market and 2 put on a gasket. Our thing comes without asbestos parts. 3 So if I get a Rockwell -- you know, let's say I have three 4 Rockwell parts in this, a gasket, a clutch and a break. 5 So they're going to say asbestos caused it but it wasn't 6 Rockwell it was Clark, except that those parts are all 7 Rockwell's. It doesn't even make sense. It's an 8 impossible case to try. 9 If they're not saying gaskets and brakes and 10 clutches cause asbestos, just dismiss us. The only 11 legally incomprehensible position would be that these 12 metal machines with internal combustion engines caused 13 this disease. It's these component parts made by the 14 people that their expert said caused this. So if they're 15 going to say those parts didn't cause it, that's fine. If 16 they're going to say those parts caused it, we have to ask 17 those questions. 18 THE COURT: Thank you, Mr. Gallagher. 19 Mr. Dymond? 20 MR. DYMOND: Your Honor, I just had two points 21 to make in response to that. The first being our motion 22 quite plainly discusses non-party or settled parties and 23 that's entirely consistent with Article 16 and a large 24 body of case law in asbestos litigation indicating that 25 the defendants have an Article 16 burden of proof FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 23 1 irrespective of whether it's a non-party or a settled 2 party. 3 Settled parties don't automatically go on the 4 verdict sheet. They only go on if the defendant 5 establishes a prima facie case of liability against them. 6 And secondly, the argument that well let's just 7 wait and see what happens and see how the testimony pans 8 out, in addition to what I've already mentioned, I wanted 9 to give just a brief exemplar because I think this kind of 10 demonstrates the fallacy of the defendant's argument. 11 So imagine if a plaintiff produced an expert 12 that said asbestos was the sole cause of the plaintiff's 13 mesothelioma and then we had a second expert that said 14 radiation was the sole cause of the plaintiff's 15 mesothelioma and then we came into court and said well we 16 have these two theories, Your Honor, let's wait and see 17 what happens, one of them may work and one of them may 18 not. 19 The defendants would say those are completely 20 legally inconsistent positions and you cannot present both 21 in court. And they would be 100 percent correct. That 22 is, by a correlation, the exact situation we have here 23 regarding defendants and the Article 16 burden. Thank 24 you. 25 THE COURT: Mr. Casimir. FILED: ALBANY COUNTY CLERK 01/17/2024 12:32 PM INDEX NO. 908796-22 NYSCEF DOC. NO. 470 RECEIVED NYSCEF: 01/17/2024 24 1 MR. CASIMIR: Briefly, Your Honor. There's two 2 points I want to make. As I indicated before, we don't 3 have any burden here. And whatever evidence comes in we 4 can use to argue any position in terms of verdict, 5 directed verdict or what gets on the verdict sheet. 6 Th