Preview
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/22/2024
Exhibit A
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/22/2024
3
1 1 there is a couple essential facts which I can go through
1 STATE OF NEW YORK : COUNTY OF NIAGARA 2 pretty quickly. And I'm not sure that any of these facts
SUPREME COURT
2 --------------------------------------------------- 3 are in dispute. In fact, I don't think -- I think all of
BENEDICT VIGLIETTA and TERRI VIGLIETTA,
3 Plaintiffs, 4 them are not in dispute.
4 -VS- INDEX # E174717/2021
5 Occidental is a non-party and a New York
5 ASBESTOS CORPORATION LIMITED, a
Corporation of the Province of Quebec, et al., 6 corporation. The relevant time period for the Plaintiff,
6 Defendants.
--------------------------------------------------- 7 meaning the time period that the Plaintiff worked at
7 50 Delaware Avenue
Buffalo, New York
8 April 19, 2022 8 Occidental's Durez facility is from 1974 to 1976. The Durez
9 PROCEEDINGS HELD REMOTELY VIA MICROSOFT TEAMS 9 plant was closed in 1995.
10 10 Occidental in its papers reported to the Court that
B E F O R E:
11 HONORABLE DEBORAH A. CHIMES 11 it's not aware of any current employee, whether in or
Supreme Court Justice
12
12 outside New York State, who has personal knowledge of the
13 A P P E A R A N C E S:
13 topics listed in the subpoena, which probably should not be
14 MICHAEL MACRIDES, ESQ.,
Appearing for the Plaintiffs. 14 surprising given that the issues are forty-five to fifty
15
JEFFREY FEGAN, ESQ.,
16 Appearing for Defendant Hedman. 15 years old and the plant closed twenty-seven years ago.
17 JASON NASH, ESQ., 16 And finally, Hedman's subpoena is a trial subpoena.
AND STEPHEN BROOKS, ESQ.,
18 Appearing for Defendant Pfaudler. 17 While you may -- when reading the topics of requested
19
KEVIN HOGAN, ESQ.,
18 testimony, you may think it's a discovery subpoena, it was
20 AND MARY JO HERRSCHER, ESQ.,
Appearing for Occidental. 19 served and at this point could only be served as a trial
21
20 subpoena.
22
21 Occidental seeks to quash this trial subpoena on
23
24 22 the following grounds: First, much of the subpoena is
25 LISA A. MULLANE 23 improperly broad, essentially discovery disguised as a trial
Official Supreme Court Reporter
24 subpoena.
25 But even if it were proper, Hedman is only able to
2 4
1 THE CLERK: In the matter of Benedict Viglietta. 1 subpoena New York State non-party corporations such as
2 Counselors, please note your appearance beginning with the 2 Occidental to produce a current employee who's residing in
3 Plaintiff. 3 New York State to provide relevant trial testimony. Hedman
4 MR. MACRIDES: Good morning, Your Honor. I do 4 cannot compel Occidental to produce a non-resident employee
5 represent the Plaintiff, Michael Macrides from Belluck and 5 to testify, can't compel Occidental to produce a former
6 Fox. I don't -- I don't anticipate speaking too much on the 6 employee to testify and can't compel Occidental to educate a
7 call. This is between the Defendants and non-parties, 7 New York State employee to testify in matters that they
8 so.... 8 otherwise do not have personal knowledge of.
9 THE COURT: All right. 9 As I mentioned, Hedman concedes Occidental is a
10 MR. MACRIDES: Okay. 10 non-party. And yet it constantly relies on case law in its
11 MR. HOGAN: This is Kevin Hogan on behalf of 11 papers that involve trial subpoenas that were served on
12 Occidental from Phillips Lytle. And my colleague, Mary Jo 12 parties, party corporations. Consequently, we contend that
13 Herrscher is also here. 13 the case law they rely on is off point and not persuasive.
14 MR. FEGAN: Good morning, Judge. Jeffrey Fegan, 14 Hedman concedes that it is improper to compel a non-party
15 Clyde and Co US, LLP, for the Defendant Hedman Resources 15 corporation to produce a former employee, to produce an
16 Limited. 16 out-of-state employee or even to educate -- to compel a
17 MR. NASH: Morning, Your Honor. Jason Nash for 17 non-party to educate a resident employee on topics that
18 Pfaudler, Inc. And with me is Steve Brooks. 18 employee otherwise has no personal knowledge of.
19 MR. BROOKS: Hi, Judge. 19 Now, the Hedman subpoena seeks trial testimony.
20 THE COURT: Good morning. All right. We will 20 And in the absence of any witness to produce, Hedman
21 start with counsel for Occidental, since your motion was 21 suggests a document custodian appear to testify and produce
22 filed first. 22 related documents. But documents and document custodians
23 MR. HOGAN: Okay, thank you, Judge. 23 are not a substitute for a witness with personal knowledge.
24 By order to show cause Occidental seeks to quash 24 And there's no legal support for this creative idea that
25 the trial subpoena served on it by Hedman. Occidental -- 25 instead via this trial subpoena Occidental can be compelled
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1 in such a fashion. But once again, maybe that all is moot 1 New York, something that happened in New York to someone who
2 because Occidental doesn't have a document custodian who 2 lived in New York. They were served in New York. They're
3 resides in New York who could be educated in such a fashion 3 amenable to service in New York.
4 or compelled to produce such documents. And I would just 4 What they're being asked to testify to is something
5 add on that point that -- that no document custodian was 5 that is completely not in dispute and that is the fact that
6 previously subpoenaed, that's their phrase, from Occidental. 6 Hedman warned the Plaintiff that he was being exposed
7 The last point I want to -- well, there's two 7 potentially to asbestos on the job, that Durez, Hooker,
8 points. I think they're both quick. In their papers 8 Occidental, however you might want to call them, passed that
9 they've made much of the Stock decision. And I simply don't 9 warning on to him. It's clearly relevant to the fundamental
10 think the Stock decision applies at all to our order to show 10 issue that's going to be given to the jury at trial.
11 cause. We'll have to see how Pfaudler feels about that. 11 I'm not seeking -- I'm unable to seek apportionment
12 But the Stock case and the decision in particular only held 12 against Occidental. Can't happen because they're his
13 that former parties who had settled could still be subject 13 employer, he's still alive. What I'm going to do is put in
14 to trial subpoenas. 14 all the possible evidence I can to show that this man was
15 We're not dealing with a former party who settled. 15 warned not only by me and my client, but by his employer who
16 We're dealing with a non-party. No aspect of the decision 16 had a legal obligation to do it. And from everything that
17 applied to non-party corporations. Whether the scope of the 17 we can see, fulfilled that obligation, passed that warning
18 subpoena was properly narrow or improperly broad was not in 18 on to him. And he either didn't comply or he -- he either
19 dispute, not covered by Your Honor's decision. And Hedman 19 didn't -- chose not to hear it or chose not to comply.
20 offers nothing, not even the subpoenas that were the subject 20 This is clearly relevant. It is baseline
21 of the Stock decision to establish its assertion that the 21 relevance. It is not -- not controversial. It's not
22 topics in the Stock subpoena were similar in scope to those 22 discovery, by the way. I know what the answer is. I
23 in its trial subpoena to Oxy. While it argues that, it 23 remember saying that very clearly in our argument
24 hasn't offered anything to support that. 24 three-and-a-half years ago. I didn't subpoena them during
25 And then finally, I mentioned that the subject 25 discovery because I already know the answer. I have their
6 8
1 matter of the requested testimony is improperly broad. It 1 discovery. I have their sworn interrogatory responses that
2 doesn't seem that the Court needs to reach that. But just 2 were sworn to by someone in a position to swear that they
3 looking at it, I mean, historical knowledge of asbestos 3 were true. Where they say, yes, we manufactured
4 hazard, all warnings of asbestos given to customers, the 4 asbestos-containing products at this facility, we know who
5 corporate history of Durez's design, manufacture and sale of 5 gave us the material to use in that product, the fiber to
6 asbestos products, all sources of asbestos-containing 6 use in that product, the constituent parts of that product.
7 products, all efforts to implement safety regulations, I'll 7 And we took efforts to comply with OSHA and to warn our
8 stop there, but those are the first five requests in the 8 employees like Mr. Viglietta. There's nothing controversial
9 subpoena. And in my view, even if narrowed to a three year 9 about that.
10 period, they are clearly discovery in nature and not 10 And I don't care who they bring. I think what I
11 appropriate for a trial subpoena. 11 said in James Stock is I don't care if Granco or IMO
12 Let me rest there, Judge, unless you had any 12 (phonetic) or whoever else who was involved in those motions
13 questions for me. 13 brings Joe the janitor in here to testify about what
14 THE COURT: No, I don't have any questions. Thank 14 happened there.
15 you. 15 To the extent they're saying they absolutely have
16 All right. I will take the opposition to 16 no proof of anyone with knowledge, I don't know how in 2013,
17 Occidental's motion to quash. 17 which is less than ten years ago, someone put down that they
18 MR. FEGAN: Good morning, Judge, Jeffrey Fegan for 18 swear to God that the thirty page interrogatory response
19 the Defendant Hedman. And I would say in response that this 19 that I provided to you in opposition to their motion,
20 feels like déjà vu all over again. And we're 20 everything in there was true. I don't know what happened to
21 three-and-a-half years back in court in Buffalo arguing the 21 that person. But I don't care who comes in, because I can
22 motions to quash my subpoenas in the Stock trial. 22 confront them with that and say, yes, you did warn Mr.
23 Occidental is a New York corporation. It's not a 23 Viglietta and every other single one of your employees
24 surprise that they're going to have to come to court and 24 between 1974 and 1976 who worked with asbestos fiber in that
25 give testimony and evidence about something they did in 25 facility. That is what I'm trying to do.
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1 They know for a fact who supplied the asbestos 1 anyone else, for that matter, that doesn't have personal
2 fiber to that facility. It's another aspect of my defense, 2 knowledge of these issues.
3 which I am entitled to put up, which is equitable 3 Mr. Fegan has a right to produce evidence at trial.
4 apportionment to people who have paid the Plaintiff for 4 I'm not contesting that at all. What -- what's happened
5 their -- the exposures to asbestos that they caused, IE 5 here, though, is Mr. Fegan doesn't know what witnesses have
6 Johns-Manville. 6 that personal knowledge that will help him establish the
7 They know without a doubt. We provided you the 7 issues that he wants to establish at trial.
8 list of the documents that they have. They know who 8 He can't compel someone -- first of all, he can't
9 supplied that fiber to the facility. They know when, they 9 -- I don't want to go through all those rules again about a
10 know how much. This is not discovery, it is evidence. 10 former employee or an employee outside the state. But it
11 And I'd love to be able to say we have a 11 seems to me that not having conducted the discovery to
12 stipulation, Judge, that the Plaintiff is going to agree 12 identify the witnesses, to establish the issues that he
13 that everything I just said just comes into evidence because 13 wants to establish at trial, he's just seeking to compel
14 we all know damn well that it's true. But everybody on this 14 Occidental to produce someone to do it now, whether or not
15 call knows there's no chance that that is going to happen. 15 that person even exists.
16 The same thing that happened in Stock is going to be what 16 MR. FEGAN: Can I just add --
17 happens here is we're going to have a scorched-earth battle 17 THE COURT: One second. I just want to make sure
18 over every documents that's going in front of that jury and 18 Mr. Hogan's finished.
19 being offered in evidence in trial. If they want to 19 MR. HOGAN: I think so, Judge.
20 stipulate to everything I just said to you, maybe we got 20 THE COURT: All right. Mr. Fegan.
21 something to talk about then. There's no chance they're 21 MR. FEGAN: Very briefly, thank you, Judge. In
22 going to do that. 22 terms of them bringing Joe the janitor, I hope it's not Joe
23 I need to be able to put on as much evidence as I 23 the janitor. I hope it's someone who has taken a look at
24 can to show what is the truth is that Mr. Viglietta was 24 these documents. But given the fact I have their sworn
25 warned not only by me, but by his employer. And the jury 25 interrogatory responses, the same thing I said in the
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1 has got to answer no to question one and this case has got 1 argument in Stock is true. Once they say I don't know, I
2 to end. 2 can confront them with their own documents where they swore
3 So, I think that's all I have to say about that. 3 they did know.
4 THE COURT: I just have a question, just so I have 4 Aside from that, attached to the subpoena were a
5 the correct understanding. Plaintiff in this situation, if 5 number of documents on Hooker Chemical, Durez, Occidental's
6 I read the testimony correctly that was submitted, he's 6 letterhead where they're discussing the very subject matter
7 basically a bystander, isn't he? He's not really working 7 of the warning with Hedman that was passed on to the
8 with the asbestos or the asbestos bags, but he's either -- 8 Plaintiff in this case. Are they going to deny they can
9 it's up above him or it's near him. Is -- is that a correct 9 bring in someone who would recognize their own letterhead?
10 -- am I correct in that understanding? 10 I will not believe that. It's not possible.
11 MR. FEGAN: I think, Judge, that's at least true 11 THE COURT: So, let me just ask here, Mr. Fegan,
12 that he's at least a bystander. There may be some testimony 12 because I'm hearing kind of two -- two issues here, one are
13 that he took some of the product after it had been made and 13 the documents that you have possession of that you'd like to
14 handled it with his own hands. But I believe that the 14 get into evidence. And then you're talking about testimony.
15 majority of it is probably that he was claiming to be in 15 But sometimes you're saying testimony about the documents,
16 areas where other workers were opening bags of what he took 16 which there may be another way of getting those documents
17 to be asbestos fiber, whether it was or it wasn't, and 17 into evidence. And then you're talking about -- well, at
18 causing him to be exposed. 18 least in your subpoena you're talking about corporate
19 THE COURT: All right. Last word, Mr. Hogan. 19 history and things that are a little bit more general.
20 MR. HOGAN: Judge, first, Occidental I don't think 20 MR. FEGAN: Sure. I always assume the worst,
21 was in the Stock case. Certainly not -- I wasn't defending 21 Judge. So, if I had someone on the witness stand and I said
22 it in connection with the disputes that Mr. Fegan's 22 my end goal is to get them to say what happened, which is
23 referring to. But there's some disconnect. I'm failing to 23 that Hedman gave a warning on the bags of Hedmanite or
24 appreciate just what it is that Hedman plans to do when 24 whatever the product -- Hedman-Kenny (phonetic) added fiber,
25 Occidental produces Joe the janitor who doesn't have -- or 25 whatever it was that was provided to this facility, Durez,
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1 Hooker, Occidental knew about the warning, discussed the 1 MR. HOGAN: Judge, this is Kevin Hogan. If I may,
2 warning with Hedman, asked that specific language be put in 2 it -- it seems to me that not having conducted the discovery
3 the warnings and then pass it on to the Plaintiff, that's 3 that Hedman should have done, it now is seeking to compel a
4 all just going into evidence, those documents on their own, 4 non-party to produce witnesses to testify in a way -- and
5 I'd love for that to be true. 5 it's -- I mean, that's what is at the heart of this. All
6 What I think is going to happen is that I'm going 6 those hypotheticals that Mr. Fegan was just going through
7 to have to bring the witness along through multiple 7 during his argument are the types of things that maybe you
8 objections about how do you know this or who is Hooker 8 can compel a party and maybe you can confront a party during
9 Chemical and denying the existence of even, you know, the 9 a trial, but not a non-party.
10 plans or the documents or that anything is authentic, 10 MR. FEGAN: Judge, if someone --
11 anyway. So, you know, I've got to get to Z and start at A. 11 THE COURT: Just for clarification, Mr. Hogan,
12 So, you know, all of the -- you know, the documents 12 Occidental was never a party to this action?
13 about who the company is and what was their knowledge and 13 MR. HOGAN: Correct.
14 what products were they manufacturing there, this all goes 14 THE COURT: All right. I've heard enough. We'll
15 to background. If I'm putting a witness in front of people 15 move on to the second motion under zero zero twenty-four I
16 who have never heard of this before, they're going to want 16 think it was or zero twenty-four.
17 to know who this person is before they take the documents 17 So, Mr. Nash, are you taking this or Mr. Brooks?
18 and say yes, this is actually evidence and I get to decide 18 MR. NASH: Yes, Your Honor, I'll be taking this
19 what -- what is a fact and what is not, according to the 19 one.
20 jury charge, which is what they're going to do, and should I 20 THE COURT: Okay.
21 believe this. So, I'd like them to believe it from someone 21 MR. NASH: Thank you, Judge. I agree a lot with my
22 saying, yes, I work for the company that was subpoenaed and 22 colleague, Mr. Hogan. This does feel similar to the
23 I can at least have taken some effort to determine whether 23 Occidental issues, primarily that Pfaudler also has no one
24 this is actually a document that came from us because it has 24 to offer in response to the questions being posed.
25 our letterhead and our address and it talks about something 25 But if we can step back for a moment, it seems to
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1 that we definitely did and no one is disputing. 1 me that like all discovery disputes, what this really boils
2 But you know, based on extensive past experience, I 2 down to is a balancing of benefit of the information on one
3 have a feeling I'm going to have to fight for it. 3 hand versus burden to the responding party on the other.
4 THE COURT: Okay. Here's the other question I have 4 And if looked at through that prism, I think the answer
5 for you in a follow-up. Mr. Hogan is saying Occidental 5 becomes very clear here.
6 doesn't have anybody within the jurisdiction of the subpoena 6 On the benefit side of the ledger there really is
7 that has the knowledge that you seem to be looking for, 7 none. There is no benefit to Hedman for the responsive
8 whether it be the corporate history, whether or not what you 8 information of the subpoena because Pfaudler doesn't have
9 provided Occidental Occidental put on the bags, because 9 anything to offer. We don't have a witness with knowledge.
10 that's part of the argument, as well. It seems to me that's 10 We don't have a document regarding the kettles at Durez.
11 what Mr. Hogan is saying, is they don't have anybody that 11 And we don't have any responsive information to the
12 has such knowledge. 12 subpoena. So, the benefit side is a net zero.
13 MR. FEGAN: I'd like to believe that, Judge. All 13 As Mr. Hogan explained, this is an exposure period
14 I've got in front of me is an attorney affirmation, so I 14 going back to 1974, which necessarily means that the
15 don't know. What I will say is that Occidental, Hooker, 15 Pfaudler kettles would have been installed more than fifty
16 Durez is sued in cases that are before you as a Defendant 16 years ago. It's not unreasonable for Pfaudler to simply
17 and nothing that I'm asking for is nothing that they're 17 have nothing in that regard under these circumstances. And
18 already compelled to answer in standard interrogatory 18 that's nearly all of the requested information.
19 responses. So, it's kind of difficult to accept that 19 To Mr. Fegan's point earlier, the -- the topics are
20 there's absolutely no one who could answer that, yes, this 20 somewhat narrowed in the sense that they do relate
21 is something that came out on our own letterhead in 1974 21 exclusively to the kettles that were at Durez. They're
22 talking about the exact issue that's at issue in this case. 22 still broad for other reasons, but with regard to the
23 You know, I can't comment any further than to say 23 kettles at Durez, which is the information sought here,
24 there's not enough evidence in front of you, Judge, to 24 Pfaudler has nothing. So, there is no benefit.
25 accept that at face value. 25 And on the other side of the ledger we're looking
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1 at the burden to the responding party. And there will 1 of fault, assuming there is any, which we obviously dispute.
2 always be some level of burden when you're responding to 2 Pfaudler has bought its peace. So, this is not about money.
3 discovery of any kind. But I would note here that what 3 This is about evidence. And I find it impossible to believe
4 Hedman has done is taken the most significantly burdensome 4 that Pfaudler doesn't know whether or not it ever put a
5 way to try to get this information. 5 warning on any product it used that incorporated an
6 We're not at discovery, as Mr. Hogan said. We're 6 asbestos-containing insulation part.
7 talking about a trial subpoena. And we're talking about a 7 So, the jury charge -- the charge of the jury would
8 situation where Pfaudler would have to go and find someone 8 get manufacture of an assembled product. If you find,
9 to say I don't know in front of a jury and waste half a day 9 ladies and gentlemen, that Pfaudler made a kettle that
10 of that jury's time simply because Mr. Fegan wants them to. 10 incorporated an asbestos-containing product to which the
11 So, there obviously is a burden to Pfaudler. But 11 Plaintiff was exposed, you have to decide whether or not
12 burden here is even more acute than that because Pfaudler is 12 there was a warning, whether it was sufficient.
13 a settled party. Pfaudler's already gone through the 13 They don't know whether they ever warned? I mean,
14 mechanisms of discovery and has had -- has been subject to 14 this is standard interrogatory responses that are in dozens
15 whatever questions anyone wanted to ask of them. That time 15 if not hundreds of cases that are before you. This is not
16 is over. Pfaudler has for all its purposes bought it's 16 overbroad, this is something they were compelled to answer
17 peace. So, now to say we're going to set aside all of 17 in this very case.
18 everything that happened, all of the discovery that could 18 Pfaudler's -- this is only about establishing, you
19 have been done, all of the issues that have been developed 19 know, equitable shares of fault, which this is not
20 and all of Pfaudler's negotiations with Plaintiff's counsel 20 controversial, this is due process because the Plaintiffs
21 to finally put this case to bed and compel them to come to 21 are going to object. There's absolutely no doubt they will
22 trial to say over and over again we have nothing, we have no 22 object to everything the way they did in Stock, the way they
23 one, we have no documents, we don't know, seems to create 23 will do in every single trial because it's not my first,
24 what really appears to be an unfair burden here. 24 second or third time to the rodeo on this issue. They're
25 Now, one further note on burden is that it's -- 25 going to object and I need evidence.
18 20
1 there's no benefit. So, when we come back to -- come back 1 So, unless they're going to come out right now and
2 to the balancing test here, we've got no benefit because no 2 stipulate that these products that Pfaudler put on the site
3 information and significant burden to Pfaudler. 3 had asbestos, that they had no warning and that they were a
4 But the last consideration for the Court to examine 4 substantial contributing factor in making Mr. Viglietta get
5 is whether there would be any prejudice to the requesting 5 mesothelioma, I need my evidence. And that's due process.
6 party. And again, here the answer is there is none. There 6 THE COURT: And so, I have a question here. I
7 is no prejudice to Hedman for not getting what they want 7 think Mr. Nash said they were a party. They provided
8 here. And that's because there are more than two thousand 8 discovery. They provided testimony. Do you have that
9 pages of exhibits that Hedman filed with their opposition, 9 information in this particular case?
10 shows they have plenty of evidence that they can offer into 10 MR. FEGAN: Was that directed at me, Judge?
11 the record at trial to try to make their allocation burden 11 THE COURT: Yes. Yes. Because I think Mr. Nash,
12 against Pfaudler. They have that ability to do that right 12 and correct me if I'm wrong -- Mr. Nash, you said discovery
13 now. 13 has already been obtained by your client? Pfaudler gave
14 Having Pfaudler come to trial to say I don't know 14 testimony, provided responses to whatever demands were made?
15 and we have no information, we have no one and force 15 MR. NASH: Pfaudler was not served with discovery
16 Pfaudler to go out and find someone, someone to sit there 16 in this case, your Honor. Plaintiff served discovery on
17 and represent that -- that this is -- it's just to 17 Pfaudler just shortly before we were resolved. So, Pfaudler
18 burdensome, Judge. The balancing test doesn't have any 18 has not had to answer discovery in this case.
19 benefit and a lot of burden. So, under these factors, under 19 THE COURT: Okay. All right. Okay.
20 these considerations, the answer seems to be pretty clear 20 MR. NASH: But for the point, Mr. Fegan is right,
21 here. Thank you. 21 he is looking for evidence for apportionment and he has it.
22 THE COURT: All right. Mr. Fegan. 22 He has all of the two thousand plus pages of evidence that
23 MR. FEGAN: My client has a right under the 23 were attached here. And there is no evidence to be gotten
24 important various apportionment statutes that we're going to 24 from Pfaudler.
25 use in terms of this trial to establish its equitable share 25 When he's asking about warnings generally, I would
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1 point out that that's not what the subpoena asks for. The 23
2 subpoena asks if you know of any warnings that were on the 1
3 kettles that went to Durez. That is an appropriate question 2
4 to -- for this trial. The general question of what do you 3 LISA A. MULLANE
Senior Court Reporter
4 157 Colony Ct.
5 know about warnings, Pfaudler, would be a discovery question Amherst, NY 14226
5 (716) 280-6486
6 that would be inappropriate here.
6
7 So, Mr. Fegan is really collapsing inquiries here
7
June 9, 2022
8 in a manner that suits his needs. But that is not 8
9 consistent with the subpoena that's before this Court and is 9
CLYDE & CO US LLP
10 not consistent with the CPLR and the rules. 10 JOHN J. BURBRIDGE, ESQ.,
405 Lexington Ave, 16th Floor
11 So, to go back to where we are, Mr. Fegan wants 11 New York, NY 10174
12
12 evidence, but that evidence isn't going to come from
13
13 Pfaudler. This is a fruitless exercise on that front. TRANSCRIPTION OF MINUTES RE:
14
14 MR. FEGAN: Judge, there's a car accident VIGLIETTA v ASBESTOS CORP, ET AL
15 Before Hon. Deborah Chimes
Motions held on 4/19/22
15 somewhere. Someone who's in the case who's driving one of 16
16 the cars contributes to the accident, settles. And then 17
TRANSCRIPT --------------$ 125.00 total
17 they say I don't want to come in for the trial, you're not 18
19
18 getting the evidence from me, you can only get it from the
20 ** Thank you **
19 other people who were there or from a police report. That's
21
20 not sufficient and it breaks my due process rights to put my
22
21 best case in front of the jury, with someone who just like 23
22 my client may have to produce a witness or put a videotape 24
23 deposition of somebody up there the jury can see, the jury 25
24 can read their reaction whenever they look at them and say,
25 you know what, he's either lying, he's telling the truth, he
22
1 doesn't know, he's looking at his lawyer. You know, I'm
2 getting no stipulation from the Plaintiff and I will not.
3 I've got to be able to put everything I can in there.
4 MR. NASH: That hypothetical is a false dichotomy
5 because the individual involved with that accident has
6 first-hand knowledge of the accident. No one at Pfaudler
7 has first-hand knowledge of the kettles at Durez or the
8 questions that are being asked here. That analogy has no
9 application.
10 THE COURT: All right. I think I've heard enough
11 on the matter. The Court's going to reserve on both
12 motions. What I would like to do, though, is keep Mr. Fegan
13 on and Plaintiff's counsel, I guess Mr. Burbridge. Everyone
14 else can be dismissed, including Ms. Mullane.
15
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17 * * *
18
19 Certified to be a true and accurate transcript of the
above-entitled matter.
20
21
Lisa Mullane
22
LISA A. MULLANE
23 Official Supreme Court Reporter
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FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/22/2024 Exhibit A FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/22/2024 3 1 1 there is a couple essential facts which I can go through 1 STATE OF NEW YORK : COUNTY OF NIAGARA 2 pretty quickly. And I'm not sure that any of these facts SUPREME COURT 2 --------------------------------------------------- 3 are in dispute. In fact, I don't think -- I think all of BENEDICT VIGLIETTA and TERRI VIGLIETTA, 3 Plaintiffs, 4 them are not in dispute. 4 -VS- INDEX # E174717/2021 5 Occidental is a non-party and a New York 5 ASBESTOS CORPORATION LIMITED, a Corporation of the Province of Quebec, et al., 6 corporation. The relevant time period for the Plaintiff, 6 Defendants. --------------------------------------------------- 7 meaning the time period that the Plaintiff worked at 7 50 Delaware Avenue Buffalo, New York 8 April 19, 2022 8 Occidental's Durez facility is from 1974 to 1976. The Durez 9 PROCEEDINGS HELD REMOTELY VIA MICROSOFT TEAMS 9 plant was closed in 1995. 10 10 Occidental in its papers reported to the Court that B E F O R E: 11 HONORABLE DEBORAH A. CHIMES 11 it's not aware of any current employee, whether in or Supreme Court Justice 12 12 outside New York State, who has personal knowledge of the 13 A P P E A R A N C E S: 13 topics listed in the subpoena, which probably should not be 14 MICHAEL MACRIDES, ESQ., Appearing for the Plaintiffs. 14 surprising given that the issues are forty-five to fifty 15 JEFFREY FEGAN, ESQ., 16 Appearing for Defendant Hedman. 15 years old and the plant closed twenty-seven years ago. 17 JASON NASH, ESQ., 16 And finally, Hedman's subpoena is a trial subpoena. AND STEPHEN BROOKS, ESQ., 18 Appearing for Defendant Pfaudler. 17 While you may -- when reading the topics of requested 19 KEVIN HOGAN, ESQ., 18 testimony, you may think it's a discovery subpoena, it was 20 AND MARY JO HERRSCHER, ESQ., Appearing for Occidental. 19 served and at this point could only be served as a trial 21 20 subpoena. 22 21 Occidental seeks to quash this trial subpoena on 23 24 22 the following grounds: First, much of the subpoena is 25 LISA A. MULLANE 23 improperly broad, essentially discovery disguised as a trial Official Supreme Court Reporter 24 subpoena. 25 But even if it were proper, Hedman is only able to 2 4 1 THE CLERK: In the matter of Benedict Viglietta. 1 subpoena New York State non-party corporations such as 2 Counselors, please note your appearance beginning with the 2 Occidental to produce a current employee who's residing in 3 Plaintiff. 3 New York State to provide relevant trial testimony. Hedman 4 MR. MACRIDES: Good morning, Your Honor. I do 4 cannot compel Occidental to produce a non-resident employee 5 represent the Plaintiff, Michael Macrides from Belluck and 5 to testify, can't compel Occidental to produce a former 6 Fox. I don't -- I don't anticipate speaking too much on the 6 employee to testify and can't compel Occidental to educate a 7 call. This is between the Defendants and non-parties, 7 New York State employee to testify in matters that they 8 so.... 8 otherwise do not have personal knowledge of. 9 THE COURT: All right. 9 As I mentioned, Hedman concedes Occidental is a 10 MR. MACRIDES: Okay. 10 non-party. And yet it constantly relies on case law in its 11 MR. HOGAN: This is Kevin Hogan on behalf of 11 papers that involve trial subpoenas that were served on 12 Occidental from Phillips Lytle. And my colleague, Mary Jo 12 parties, party corporations. Consequently, we contend that 13 Herrscher is also here. 13 the case law they rely on is off point and not persuasive. 14 MR. FEGAN: Good morning, Judge. Jeffrey Fegan, 14 Hedman concedes that it is improper to compel a non-party 15 Clyde and Co US, LLP, for the Defendant Hedman Resources 15 corporation to produce a former employee, to produce an 16 Limited. 16 out-of-state employee or even to educate -- to compel a 17 MR. NASH: Morning, Your Honor. Jason Nash for 17 non-party to educate a resident employee on topics that 18 Pfaudler, Inc. And with me is Steve Brooks. 18 employee otherwise has no personal knowledge of. 19 MR. BROOKS: Hi, Judge. 19 Now, the Hedman subpoena seeks trial testimony. 20 THE COURT: Good morning. All right. We will 20 And in the absence of any witness to produce, Hedman 21 start with counsel for Occidental, since your motion was 21 suggests a document custodian appear to testify and produce 22 filed first. 22 related documents. But documents and document custodians 23 MR. HOGAN: Okay, thank you, Judge. 23 are not a substitute for a witness with personal knowledge. 24 By order to show cause Occidental seeks to quash 24 And there's no legal support for this creative idea that 25 the trial subpoena served on it by Hedman. Occidental -- 25 instead via this trial subpoena Occidental can be compelled 1 of 6 sheets Page 1 to 4 of 23 06/09/2022 02:02:51 PM FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 5 RECEIVED NYSCEF: 02/22/2024 7 1 in such a fashion. But once again, maybe that all is moot 1 New York, something that happened in New York to someone who 2 because Occidental doesn't have a document custodian who 2 lived in New York. They were served in New York. They're 3 resides in New York who could be educated in such a fashion 3 amenable to service in New York. 4 or compelled to produce such documents. And I would just 4 What they're being asked to testify to is something 5 add on that point that -- that no document custodian was 5 that is completely not in dispute and that is the fact that 6 previously subpoenaed, that's their phrase, from Occidental. 6 Hedman warned the Plaintiff that he was being exposed 7 The last point I want to -- well, there's two 7 potentially to asbestos on the job, that Durez, Hooker, 8 points. I think they're both quick. In their papers 8 Occidental, however you might want to call them, passed that 9 they've made much of the Stock decision. And I simply don't 9 warning on to him. It's clearly relevant to the fundamental 10 think the Stock decision applies at all to our order to show 10 issue that's going to be given to the jury at trial. 11 cause. We'll have to see how Pfaudler feels about that. 11 I'm not seeking -- I'm unable to seek apportionment 12 But the Stock case and the decision in particular only held 12 against Occidental. Can't happen because they're his 13 that former parties who had settled could still be subject 13 employer, he's still alive. What I'm going to do is put in 14 to trial subpoenas. 14 all the possible evidence I can to show that this man was 15 We're not dealing with a former party who settled. 15 warned not only by me and my client, but by his employer who 16 We're dealing with a non-party. No aspect of the decision 16 had a legal obligation to do it. And from everything that 17 applied to non-party corporations. Whether the scope of the 17 we can see, fulfilled that obligation, passed that warning 18 subpoena was properly narrow or improperly broad was not in 18 on to him. And he either didn't comply or he -- he either 19 dispute, not covered by Your Honor's decision. And Hedman 19 didn't -- chose not to hear it or chose not to comply. 20 offers nothing, not even the subpoenas that were the subject 20 This is clearly relevant. It is baseline 21 of the Stock decision to establish its assertion that the 21 relevance. It is not -- not controversial. It's not 22 topics in the Stock subpoena were similar in scope to those 22 discovery, by the way. I know what the answer is. I 23 in its trial subpoena to Oxy. While it argues that, it 23 remember saying that very clearly in our argument 24 hasn't offered anything to support that. 24 three-and-a-half years ago. I didn't subpoena them during 25 And then finally, I mentioned that the subject 25 discovery because I already know the answer. I have their 6 8 1 matter of the requested testimony is improperly broad. It 1 discovery. I have their sworn interrogatory responses that 2 doesn't seem that the Court needs to reach that. But just 2 were sworn to by someone in a position to swear that they 3 looking at it, I mean, historical knowledge of asbestos 3 were true. Where they say, yes, we manufactured 4 hazard, all warnings of asbestos given to customers, the 4 asbestos-containing products at this facility, we know who 5 corporate history of Durez's design, manufacture and sale of 5 gave us the material to use in that product, the fiber to 6 asbestos products, all sources of asbestos-containing 6 use in that product, the constituent parts of that product. 7 products, all efforts to implement safety regulations, I'll 7 And we took efforts to comply with OSHA and to warn our 8 stop there, but those are the first five requests in the 8 employees like Mr. Viglietta. There's nothing controversial 9 subpoena. And in my view, even if narrowed to a three year 9 about that. 10 period, they are clearly discovery in nature and not 10 And I don't care who they bring. I think what I 11 appropriate for a trial subpoena. 11 said in James Stock is I don't care if Granco or IMO 12 Let me rest there, Judge, unless you had any 12 (phonetic) or whoever else who was involved in those motions 13 questions for me. 13 brings Joe the janitor in here to testify about what 14 THE COURT: No, I don't have any questions. Thank 14 happened there. 15 you. 15 To the extent they're saying they absolutely have 16 All right. I will take the opposition to 16 no proof of anyone with knowledge, I don't know how in 2013, 17 Occidental's motion to quash. 17 which is less than ten years ago, someone put down that they 18 MR. FEGAN: Good morning, Judge, Jeffrey Fegan for 18 swear to God that the thirty page interrogatory response 19 the Defendant Hedman. And I would say in response that this 19 that I provided to you in opposition to their motion, 20 feels like déjà vu all over again. And we're 20 everything in there was true. I don't know what happened to 21 three-and-a-half years back in court in Buffalo arguing the 21 that person. But I don't care who comes in, because I can 22 motions to quash my subpoenas in the Stock trial. 22 confront them with that and say, yes, you did warn Mr. 23 Occidental is a New York corporation. It's not a 23 Viglietta and every other single one of your employees 24 surprise that they're going to have to come to court and 24 between 1974 and 1976 who worked with asbestos fiber in that 25 give testimony and evidence about something they did in 25 facility. That is what I'm trying to do. 06/09/2022 02:02:51 PM Page 5 to 8 of 23 2 of 6 sheets FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 9 RECEIVED NYSCEF: 02/22/2024 11 1 They know for a fact who supplied the asbestos 1 anyone else, for that matter, that doesn't have personal 2 fiber to that facility. It's another aspect of my defense, 2 knowledge of these issues. 3 which I am entitled to put up, which is equitable 3 Mr. Fegan has a right to produce evidence at trial. 4 apportionment to people who have paid the Plaintiff for 4 I'm not contesting that at all. What -- what's happened 5 their -- the exposures to asbestos that they caused, IE 5 here, though, is Mr. Fegan doesn't know what witnesses have 6 Johns-Manville. 6 that personal knowledge that will help him establish the 7 They know without a doubt. We provided you the 7 issues that he wants to establish at trial. 8 list of the documents that they have. They know who 8 He can't compel someone -- first of all, he can't 9 supplied that fiber to the facility. They know when, they 9 -- I don't want to go through all those rules again about a 10 know how much. This is not discovery, it is evidence. 10 former employee or an employee outside the state. But it 11 And I'd love to be able to say we have a 11 seems to me that not having conducted the discovery to 12 stipulation, Judge, that the Plaintiff is going to agree 12 identify the witnesses, to establish the issues that he 13 that everything I just said just comes into evidence because 13 wants to establish at trial, he's just seeking to compel 14 we all know damn well that it's true. But everybody on this 14 Occidental to produce someone to do it now, whether or not 15 call knows there's no chance that that is going to happen. 15 that person even exists. 16 The same thing that happened in Stock is going to be what 16 MR. FEGAN: Can I just add -- 17 happens here is we're going to have a scorched-earth battle 17 THE COURT: One second. I just want to make sure 18 over every documents that's going in front of that jury and 18 Mr. Hogan's finished. 19 being offered in evidence in trial. If they want to 19 MR. HOGAN: I think so, Judge. 20 stipulate to everything I just said to you, maybe we got 20 THE COURT: All right. Mr. Fegan. 21 something to talk about then. There's no chance they're 21 MR. FEGAN: Very briefly, thank you, Judge. In 22 going to do that. 22 terms of them bringing Joe the janitor, I hope it's not Joe 23 I need to be able to put on as much evidence as I 23 the janitor. I hope it's someone who has taken a look at 24 can to show what is the truth is that Mr. Viglietta was 24 these documents. But given the fact I have their sworn 25 warned not only by me, but by his employer. And the jury 25 interrogatory responses, the same thing I said in the 10 12 1 has got to answer no to question one and this case has got 1 argument in Stock is true. Once they say I don't know, I 2 to end. 2 can confront them with their own documents where they swore 3 So, I think that's all I have to say about that. 3 they did know. 4 THE COURT: I just have a question, just so I have 4 Aside from that, attached to the subpoena were a 5 the correct understanding. Plaintiff in this situation, if 5 number of documents on Hooker Chemical, Durez, Occidental's 6 I read the testimony correctly that was submitted, he's 6 letterhead where they're discussing the very subject matter 7 basically a bystander, isn't he? He's not really working 7 of the warning with Hedman that was passed on to the 8 with the asbestos or the asbestos bags, but he's either -- 8 Plaintiff in this case. Are they going to deny they can 9 it's up above him or it's near him. Is -- is that a correct 9 bring in someone who would recognize their own letterhead? 10 -- am I correct in that understanding? 10 I will not believe that. It's not possible. 11 MR. FEGAN: I think, Judge, that's at least true 11 THE COURT: So, let me just ask here, Mr. Fegan, 12 that he's at least a bystander. There may be some testimony 12 because I'm hearing kind of two -- two issues here, one are 13 that he took some of the product after it had been made and 13 the documents that you have possession of that you'd like to 14 handled it with his own hands. But I believe that the 14 get into evidence. And then you're talking about testimony. 15 majority of it is probably that he was claiming to be in 15 But sometimes you're saying testimony about the documents, 16 areas where other workers were opening bags of what he took 16 which there may be another way of getting those documents 17 to be asbestos fiber, whether it was or it wasn't, and 17 into evidence. And then you're talking about -- well, at 18 causing him to be exposed. 18 least in your subpoena you're talking about corporate 19 THE COURT: All right. Last word, Mr. Hogan. 19 history and things that are a little bit more general. 20 MR. HOGAN: Judge, first, Occidental I don't think 20 MR. FEGAN: Sure. I always assume the worst, 21 was in the Stock case. Certainly not -- I wasn't defending 21 Judge. So, if I had someone on the witness stand and I said 22 it in connection with the disputes that Mr. Fegan's 22 my end goal is to get them to say what happened, which is 23 referring to. But there's some disconnect. I'm failing to 23 that Hedman gave a warning on the bags of Hedmanite or 24 appreciate just what it is that Hedman plans to do when 24 whatever the product -- Hedman-Kenny (phonetic) added fiber, 25 Occidental produces Joe the janitor who doesn't have -- or 25 whatever it was that was provided to this facility, Durez, 3 of 6 sheets Page 9 to 12 of 23 06/09/2022 02:02:51 PM FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 13 RECEIVED NYSCEF: 02/22/2024 15 1 Hooker, Occidental knew about the warning, discussed the 1 MR. HOGAN: Judge, this is Kevin Hogan. If I may, 2 warning with Hedman, asked that specific language be put in 2 it -- it seems to me that not having conducted the discovery 3 the warnings and then pass it on to the Plaintiff, that's 3 that Hedman should have done, it now is seeking to compel a 4 all just going into evidence, those documents on their own, 4 non-party to produce witnesses to testify in a way -- and 5 I'd love for that to be true. 5 it's -- I mean, that's what is at the heart of this. All 6 What I think is going to happen is that I'm going 6 those hypotheticals that Mr. Fegan was just going through 7 to have to bring the witness along through multiple 7 during his argument are the types of things that maybe you 8 objections about how do you know this or who is Hooker 8 can compel a party and maybe you can confront a party during 9 Chemical and denying the existence of even, you know, the 9 a trial, but not a non-party. 10 plans or the documents or that anything is authentic, 10 MR. FEGAN: Judge, if someone -- 11 anyway. So, you know, I've got to get to Z and start at A. 11 THE COURT: Just for clarification, Mr. Hogan, 12 So, you know, all of the -- you know, the documents 12 Occidental was never a party to this action? 13 about who the company is and what was their knowledge and 13 MR. HOGAN: Correct. 14 what products were they manufacturing there, this all goes 14 THE COURT: All right. I've heard enough. We'll 15 to background. If I'm putting a witness in front of people 15 move on to the second motion under zero zero twenty-four I 16 who have never heard of this before, they're going to want 16 think it was or zero twenty-four. 17 to know who this person is before they take the documents 17 So, Mr. Nash, are you taking this or Mr. Brooks? 18 and say yes, this is actually evidence and I get to decide 18 MR. NASH: Yes, Your Honor, I'll be taking this 19 what -- what is a fact and what is not, according to the 19 one. 20 jury charge, which is what they're going to do, and should I 20 THE COURT: Okay. 21 believe this. So, I'd like them to believe it from someone 21 MR. NASH: Thank you, Judge. I agree a lot with my 22 saying, yes, I work for the company that was subpoenaed and 22 colleague, Mr. Hogan. This does feel similar to the 23 I can at least have taken some effort to determine whether 23 Occidental issues, primarily that Pfaudler also has no one 24 this is actually a document that came from us because it has 24 to offer in response to the questions being posed. 25 our letterhead and our address and it talks about something 25 But if we can step back for a moment, it seems to 14 16 1 that we definitely did and no one is disputing. 1 me that like all discovery disputes, what this really boils 2 But you know, based on extensive past experience, I 2 down to is a balancing of benefit of the information on one 3 have a feeling I'm going to have to fight for it. 3 hand versus burden to the responding party on the other. 4 THE COURT: Okay. Here's the other question I have 4 And if looked at through that prism, I think the answer 5 for you in a follow-up. Mr. Hogan is saying Occidental 5 becomes very clear here. 6 doesn't have anybody within the jurisdiction of the subpoena 6 On the benefit side of the ledger there really is 7 that has the knowledge that you seem to be looking for, 7 none. There is no benefit to Hedman for the responsive 8 whether it be the corporate history, whether or not what you 8 information of the subpoena because Pfaudler doesn't have 9 provided Occidental Occidental put on the bags, because 9 anything to offer. We don't have a witness with knowledge. 10 that's part of the argument, as well. It seems to me that's 10 We don't have a document regarding the kettles at Durez. 11 what Mr. Hogan is saying, is they don't have anybody that 11 And we don't have any responsive information to the 12 has such knowledge. 12 subpoena. So, the benefit side is a net zero. 13 MR. FEGAN: I'd like to believe that, Judge. All 13 As Mr. Hogan explained, this is an exposure period 14 I've got in front of me is an attorney affirmation, so I 14 going back to 1974, which necessarily means that the 15 don't know. What I will say is that Occidental, Hooker, 15 Pfaudler kettles would have been installed more than fifty 16 Durez is sued in cases that are before you as a Defendant 16 years ago. It's not unreasonable for Pfaudler to simply 17 and nothing that I'm asking for is nothing that they're 17 have nothing in that regard under these circumstances. And 18 already compelled to answer in standard interrogatory 18 that's nearly all of the requested information. 19 responses. So, it's kind of difficult to accept that 19 To Mr. Fegan's point earlier, the -- the topics are 20 there's absolutely no one who could answer that, yes, this 20 somewhat narrowed in the sense that they do relate 21 is something that came out on our own letterhead in 1974 21 exclusively to the kettles that were at Durez. They're 22 talking about the exact issue that's at issue in this case. 22 still broad for other reasons, but with regard to the 23 You know, I can't comment any further than to say 23 kettles at Durez, which is the information sought here, 24 there's not enough evidence in front of you, Judge, to 24 Pfaudler has nothing. So, there is no benefit. 25 accept that at face value. 25 And on the other side of the ledger we're looking 06/09/2022 02:02:51 PM Page 13 to 16 of 23 4 of 6 sheets FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 17 RECEIVED NYSCEF: 02/22/2024 19 1 at the burden to the responding party. And there will 1 of fault, assuming there is any, which we obviously dispute. 2 always be some level of burden when you're responding to 2 Pfaudler has bought its peace. So, this is not about money. 3 discovery of any kind. But I would note here that what 3 This is about evidence. And I find it impossible to believe 4 Hedman has done is taken the most significantly burdensome 4 that Pfaudler doesn't know whether or not it ever put a 5 way to try to get this information. 5 warning on any product it used that incorporated an 6 We're not at discovery, as Mr. Hogan said. We're 6 asbestos-containing insulation part. 7 talking about a trial subpoena. And we're talking about a 7 So, the jury charge -- the charge of the jury would 8 situation where Pfaudler would have to go and find someone 8 get manufacture of an assembled product. If you find, 9 to say I don't know in front of a jury and waste half a day 9 ladies and gentlemen, that Pfaudler made a kettle that 10 of that jury's time simply because Mr. Fegan wants them to. 10 incorporated an asbestos-containing product to which the 11 So, there obviously is a burden to Pfaudler. But 11 Plaintiff was exposed, you have to decide whether or not 12 burden here is even more acute than that because Pfaudler is 12 there was a warning, whether it was sufficient. 13 a settled party. Pfaudler's already gone through the 13 They don't know whether they ever warned? I mean, 14 mechanisms of discovery and has had -- has been subject to 14 this is standard interrogatory responses that are in dozens 15 whatever questions anyone wanted to ask of them. That time 15 if not hundreds of cases that are before you. This is not 16 is over. Pfaudler has for all its purposes bought it's 16 overbroad, this is something they were compelled to answer 17 peace. So, now to say we're going to set aside all of 17 in this very case. 18 everything that happened, all of the discovery that could 18 Pfaudler's -- this is only about establishing, you 19 have been done, all of the issues that have been developed 19 know, equitable shares of fault, which this is not 20 and all of Pfaudler's negotiations with Plaintiff's counsel 20 controversial, this is due process because the Plaintiffs 21 to finally put this case to bed and compel them to come to 21 are going to object. There's absolutely no doubt they will 22 trial to say over and over again we have nothing, we have no 22 object to everything the way they did in Stock, the way they 23 one, we have no documents, we don't know, seems to create 23 will do in every single trial because it's not my first, 24 what really appears to be an unfair burden here. 24 second or third time to the rodeo on this issue. They're 25 Now, one further note on burden is that it's -- 25 going to object and I need evidence. 18 20 1 there's no benefit. So, when we come back to -- come back 1 So, unless they're going to come out right now and 2 to the balancing test here, we've got no benefit because no 2 stipulate that these products that Pfaudler put on the site 3 information and significant burden to Pfaudler. 3 had asbestos, that they had no warning and that they were a 4 But the last consideration for the Court to examine 4 substantial contributing factor in making Mr. Viglietta get 5 is whether there would be any prejudice to the requesting 5 mesothelioma, I need my evidence. And that's due process. 6 party. And again, here the answer is there is none. There 6 THE COURT: And so, I have a question here. I 7 is no prejudice to Hedman for not getting what they want 7 think Mr. Nash said they were a party. They provided 8 here. And that's because there are more than two thousand 8 discovery. They provided testimony. Do you have that 9 pages of exhibits that Hedman filed with their opposition, 9 information in this particular case? 10 shows they have plenty of evidence that they can offer into 10 MR. FEGAN: Was that directed at me, Judge? 11 the record at trial to try to make their allocation burden 11 THE COURT: Yes. Yes. Because I think Mr. Nash, 12 against Pfaudler. They have that ability to do that right 12 and correct me if I'm wrong -- Mr. Nash, you said discovery 13 now. 13 has already been obtained by your client? Pfaudler gave 14 Having Pfaudler come to trial to say I don't know 14 testimony, provided responses to whatever demands were made? 15 and we have no information, we have no one and force 15 MR. NASH: Pfaudler was not served with discovery 16 Pfaudler to go out and find someone, someone to sit there 16 in this case, your Honor. Plaintiff served discovery on 17 and represent that -- that this is -- it's just to 17 Pfaudler just shortly before we were resolved. So, Pfaudler 18 burdensome, Judge. The balancing test doesn't have any 18 has not had to answer discovery in this case. 19 benefit and a lot of burden. So, under these factors, under 19 THE COURT: Okay. All right. Okay. 20 these considerations, the answer seems to be pretty clear 20 MR. NASH: But for the point, Mr. Fegan is right, 21 here. Thank you. 21 he is looking for evidence for apportionment and he has it. 22 THE COURT: All right. Mr. Fegan. 22 He has all of the two thousand plus pages of evidence that 23 MR. FEGAN: My client has a right under the 23 were attached here. And there is no evidence to be gotten 24 important various apportionment statutes that we're going to 24 from Pfaudler. 25 use in terms of this trial to establish its equitable share 25 When he's asking about warnings generally, I would 5 of 6 sheets Page 17 to 20 of 23 06/09/2022 02:02:51 PM FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 3 21 RECEIVED NYSCEF: 02/22/2024 1 point out that that's not what the subpoena asks for. The 23 2 subpoena asks if you know of any warnings that were on the 1 3 kettles that went to Durez. That is an appropriate question 2 4 to -- for this trial. The general question of what do you 3 LISA A. MULLANE Senior Court Reporter 4 157 Colony Ct. 5 know about warnings, Pfaudler, would be a discovery question Amherst, NY 14226 5 (716) 280-6486 6 that would be inappropriate here. 6 7 So, Mr. Fegan is really collapsing inquiries here 7 June 9, 2022 8 in a manner that suits his needs. But that is not 8 9 consistent with the subpoena that's before this Court and is 9 CLYDE & CO US LLP 10 not consistent with the CPLR and the rules. 10 JOHN J. BURBRIDGE, ESQ., 405 Lexington Ave, 16th Floor 11 So, to go back to where we are, Mr. Fegan wants 11 New York, NY 10174 12 12 evidence, but that evidence isn't going to come from 13 13 Pfaudler. This is a fruitless exercise on that front. TRANSCRIPTION OF MINUTES RE: 14 14 MR. FEGAN: Judge, there's a car accident VIGLIETTA v ASBESTOS CORP, ET AL 15 Before Hon. Deborah Chimes Motions held on 4/19/22 15 somewhere. Someone who's in the case who's driving one of 16 16 the cars contributes to the accident, settles. And then 17 TRANSCRIPT --------------$ 125.00 total 17 they say I don't want to come in for the trial, you're not 18 19 18 getting the evidence from me, you can only get it from the 20 ** Thank you ** 19 other people who were there or from a police report. That's 21 20 not sufficient and it breaks my due process rights to put my 22 21 best case in front of the jury, with someone who just like 23 22 my client may have to produce a witness or put a videotape 24 23 deposition of somebody up there the jury can see, the jury 25 24 can read their reaction whenever they look at them and say, 25 you know what, he's either lying, he's telling the truth, he 22 1 doesn't know, he's looking at his lawyer. You know, I'm 2 getting no stipulation from the Plaintiff and I will not. 3 I've got to be able to put everything I can in there. 4 MR. NASH: That hypothetical is a false dichotomy 5 because the individual involved with that accident has 6 first-hand knowledge of the accident. No one at Pfaudler 7 has first-hand knowledge of the kettles at Durez or the 8 questions that are being asked here. That analogy has no 9 application. 10 THE COURT: All right. I think I've heard enough 11 on the matter. The Court's going to reserve on both 12 motions. What I would like to do, though, is keep Mr. Fegan 13 on and Plaintiff's counsel, I guess Mr. Burbridge. Everyone 14 else can be dismissed, including Ms. Mullane. 15 16 17 * * * 18 19 Certified to be a true and accurate transcript of the above-entitled matter. 20 21 Lisa Mullane 22 LISA A. MULLANE 23 Official Supreme Court Reporter 24 25 06/09/2022 02:02:51 PM Page 21 to 23 of 23 6 of 6 sheets