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.
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FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 1 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CIVIL TERM PART 1 3 ------------------------------------------------X FRANK GONDAR, 4 5 Plaintiff 6 - against - 7 AO SMITH WATER PRODUCTS, AIR & LIQUID SYSTEMS CORPORATION, as Successor by merger to BUFFALO PUMPS, 8 INC., AMERICAN BILTRITE, INC., Individually and Successor to Amtico Floors, ARMSTRONG 9 INTERNATIONAL, INC., BIRD INCORPORATED f/k/a BIRD & SON, INC., et al. 10 11 Defendants. 12 ------------------------------------------------X INDEX NUMBER 190079/15 13 60 Centre Street 14 New York, New York May 24, 2016 15 16 B E F O R E: 17 HONORABLE MARTIN SHULMAN, 18 Supreme Court Justice, and a Jury. 19 20 21 CONTINUED ON NEXT PAGE... 22 23 24 25 Gloria Ann Brandon, Sr. Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 20 1 Proceedings 2 that just because OSHA says something doesn't mean it 3 meets -- that it has scientific it meets any basis, 4 admissibility statements under New York, and I would 5 say, it's contrary to New York law. 6 That's it in a nutshell. I adopt the papers 7 we filed. 8 THE COURT: For the record, so that we're 9 clear, Court Exhibit III will be the Burnham adopted 10 motion that was previously filed by Crane to preclude 11 certain information. 12 By the way, that motion has a number of other 13 branches of relief, so your rights are fully reserved 14 should those issues come up during the course of the 15 trial, which is what I did when I historically heard 16 the Parker motion a couple of weeks ago. The 17 opposition -- there was an opposition a number of by 18 Crane's concerns that were fully served, and that is 19 being part of Court Exhibit III, as well. 20 Mr. Dymond -- 21 MR. DYMOND: Thank you, your Honor. 22 Let me just begin by saying that this is 23 Burnham's slides, opening slides. Starting at page 24 27 we have slides that talk about the OSHA 25 requirements, that talk about the public health 26 service documents, NIOSH criteria, and the OSHA Gloria Ann Brandon, Sr. Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 21 1 Proceedings 2 standards, the PEL's, and so apparently, the 3 defendants want to say anything they want to say 4 about the regulatory agencies, but the plaintiffs 5 can't say anything they want to say about the 6 regulatory agencies. 7 That's at the outset. 8 Second is, there's a reason why if we look at 9 the letter filed by Burnham, there's not a single New 10 York case cited, other than generally Parker. 11 THE COURT: I'm glad you mentioned that 12 because the last three sentences of the Parker 13 holding basically addressed a notion that regulatory 14 agencies in many circumstances will issue policy 15 statements as a prophylactic measure erring on the 16 side of caution, and it seems that those three 17 sentences have been conflated to apply to policy 18 statements by various regulatory agencies, non 19 Governmental agencies that are deemed highly regarded 20 in making the kind of pronouncement that they're 21 seeking to be precluded at this time. I managed to 22 read much of the research supporting the NIOSH 23 statements, and the OSHA statements, and much of the 24 literature behind those statements, and suffice it to 25 say, they're grounded on research, and peer review 26 literature, and studies. It's not simply a Gloria Ann Brandon, Sr. Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 490 1 Markowitz Direct - Long 2 published by the International Agency For the Research of 3 Cancer, is that right? 4 A Correct. 5 Q And is that cited in your article, which is P-34? 6 A Yes, I'm almost certain. 7 Q Yeah. Page 337 is the page that I'm on in your 8 article. 9 A Right. Yes, it's from 2012. It's reference 10 number 16. 11 Q Okay. Why did you site IARC? I'm Plaintiffs' 12 THE COURT: sorry, is that 13 9. 14 MR. LONG: Yes. 15 THE COURT: I don't remember hearing that, 16 okay. 17 THE WITNESS: So, IARC is the International 18 Agency For Research on Cancer, and it is purely 19 scientific. It has no regulatory authority, and it 20 assembles groups of experts to look at issues of 21 cancer and their causation. This is a long paragraph 22 or report really, an update 2012 on reviewing the 23 science, what we about know about asbestos, malignant 24 mesothelioma lung cancer, and the like, and their 25 conclusions from that science, what the science 26 demonstrates. Gloria Ann Brandon, Sr. Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 491 1 Markowitz Direct - Long 2 Q And what did it demonstrate? 3 A Well, it included that chrysotile caused 4 malignant mesothelioma, which is concluded many times 5 before actually. 6 (Whereupon, Senior Court Reporter Lisa 7 DeCresenzo resumed.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Gloria Ann Brandon, Sr. Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 492 1 Dr. Markowitz - Direct/Mr. Long 2 DIRECT EXAMINATION (Continued) 3 BY MR. LONG: Plaintiffs' 4 Q Next, Exhibit 10 is a publication by 5 the National Toxicology Program from 2014, right? 6 A Right. 7 Q Why did you cite that one in your article; and, to 8 what extent does it influence your opinion that chrysotile 9 causes mesothelioma? 10 A This is a consensus document. It's a scientific 11 document. NTP or National Toxicology Program is a 12 scientific organization. It has no role in regulation. It 13 looks at studies, in this case, asbestos, and reviews those 14 through expert panels and makes its decisions about asbestos 15 or benzine or any other number of human carcinogens and it 16 concluded that all forms of asbestos are known to produce 17 malignant mesothelioma. 18 Q Okay. 19 THE COURT: Doctor, excuse me. In the support 20 for these articles, they're based on research, correct? 21 THE WITNESS: Correct. 22 THE COURT: It's not merely policy statements 23 or are they policy statements or opinions given by 24 scientists, with a reasonable degree of scientific 25 certainty, with respect to the position in those 26 articles? LISA DE CRESCENZO - OFFICIAL COURT REPORTER FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 493 1 Dr. Markowitz - Direct/Mr. Long 2 THE WITNESS: They are scientific statements. 3 That is the charge to the National Toxicology Program. 4 It's not about making policy, it's about examining the 5 underlying science and giving an objective opinion about 6 what that science shows. 7 THE COURT: Thank you. 8 Q Then, how does the opinion emerge from the science 9 that has been considered by that agency? 10 A So, the various federal agencies will rely on the 11 report of the carcinogens of the National Toxicology Program 12 to make some decisions. It might be Environmental 13 Protection Agency or Food and Drug Administraton. 14 I'm on the board of scientists of NTP, so I 15 have some insight on this. They do the science piece and 16 the regulatory agencies use or don't use the science, 17 depending on what they do, but this is separated from the 18 regulation. 19 Q Yes. I want to talk really more about what the 20 National Toxicology Program does. 21 Do they collect studies, statistics? I mean, 22 how do they arrive at their opinion that chrysotile causes 23 mesothelioma? 24 A They do a whole lot of things, including 25 toxicologic research. They have labs with animals and doing 26 studies but they're charged by Congress with producing a LISA DE.CRESCENZO - OFFICIAL COURT REPORTER FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 2464 1 Proceedings 2 However, and I've said this before on the record, 3 asbestos litigation is a mature litigation. And the 4 difference between bending, mold, formaldehyde and wood 5 chips, are very different types of toxins than asbestos, 6 which has been researched since the end of the 19th Century 7 and consistently researched throughout 20th Century, to 8 date. 9 I respect the position with respect to being 10 somewhat -- words dismissive from statements my regulatory 11 and policy statement. Fair game in the context of whether 12 those statements are made in the context of being cautionary 13 statements in an effort to protect the public. But on this 14 record, policy statements and regulatory statements with 15 respect to each fiber, that is each of the asbestos type of 16 fibers, ranging from chrysotile to crocidolite, all cause 17 asbestos-related diseases is well-settled in the literature, 18 in the scientific community. Independent of the regulatory 19 allegations that are relied on scientific support for their 20 respective propositions. 21 I do not believe Parker compels a quantitative 22 tests that the defendant Burnham is asking this court to 23 impose on this record. I believe it is an issue of fact for 24 the jury to determine whether the nature of exposure causes 25 disease, because it is well-settled in the literature that 26 low dose exposure and short-term low dose exposure to Michael A. Ranita - Senior Court Reporter FILED: ALBANY COUNTY CLERK 01/22/2024 11:55 AM INDEX NO. 908796-22 NYSCEF DOC. NO. 619 RECEIVED NYSCEF: 01/22/2024 2465 1 Proceedings 2 chrysotile causes mesothelioma. 3 The question against that scientific backdrop is 4 whether Mr. Gondar and his exposure to Burnham boilers 5 covered with an inch and a half of asbestos cement, was that 6 exposure, together with the other exposures, the competent 7 producing cause of disease. 8 Now, Burnham's position is that each exposure must 9 stand alone. Pretty difficult on this record for each 10 exposure to stand alone. So, against that backdrop, a 11 directed verdict for dismissal is denied, both as to the 12 prima facie case, as well as at the close of the case in 13 chief. That issue of exposure is going to the jury. 14 One added postscript. Mr. Radcliffe points out 15 that the science asks this court to reject visible dust as 16 being a test for quantitative exposure. Well, as far as I 17 know, lusterine has not been overruled in this jurisdiction. 18 while this court has not -- strike that. Whereas Moreover, 19 the State of New York has not specifically adopted the 20 Lohrmann standard, using that as in the same vein that 21 Burnham is using the Parker standard. NYCAL has understood 22 that a jury can consider the frequency, regularity and 23 proximity of an end user or bystander to the asbestos 24 exposure scenario to determine whether that particular 25 bystander or end user was sufficiently exposed to asbestos 26 to have contributed to his or her asbestos-related disease. Michael A. Ranita - Senior Court Reporter