Preview
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
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Exhibit B
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024
1
1 STATE OF NEW YORK : COUNTY OF NIAGARA
SUPREME COURT EIGHTH JUDICIAL DISTRICT
2 _______________________________________________
3 In Re: EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
4 _____________________________________________
BENEDICT VIGLIETTA and
5 TERRI VIGLIETTA,
6 PLAINTIFFS, INDEX #E17471/2021
7 -VS-
MOTION
8
9 ASBESTOS CORPORATION LIMITED, ET AL.,
10
DEFENDANTS,
11
_____________________________________________
12
25 Delaware Avenue
13 Buffalo, New York 14202
October 13, 2022
14
HELD BEFORE: HONORABLE DEBORAH A. CHIMES,
15 SUPREME COURT JUSTICE.
16 APPEARANCES: SETH DYMOND, ESQ.,
Appearing for the Plaintiff.
17
PETER DINUNZIO, ESQ.,
18 JEFFREY FEGAN, ESQ.,
Appearing for Defendant Hedman Resources.
19
20 LISA G. PAZDERSKI,
Supreme Court Reporter.
21
22
23
24
25
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1 THE CLERK: In the matter of Viglietta versus
2 Asbestos Corporation, Limited, Index Number
3 E174717-2021. Counselors, please note your
4 appearance for the record, beginning with the
5 plaintiff.
6 MR. DYMOND: Good morning, Your Honor. Seth
7 Dymond from Belluck and Fox on behalf of the
8 plaintiff.
9 MR. DINUNZIO: Peter Dinunzio from Clyde Co,
10 LLP on behalf of the defendant, Hedman Resources.
11 I'm here with my colleague, Jeff Fegan.
12 MR. FEGAN: Good morning, Judge.
13 THE COURT: Good morning. All right. Before
14 we begin on the oral argument, I just want to note
15 there was a cross-motion brought by the plaintiff
16 relative to the life expectancy, which, when I
17 reviewed it, there's a stipulation that the
18 parties agreed to, so I will have Colleen upload
19 Document 528, and I will then sign that. I
20 realized I didn't sign it. Okay.
21 With that, then, we are on the motions,
22 defense motions. So Mr. Dinunzio, you are the one
23 that is going to be orally arguing?
24 MR. DINUNZIO: Yes, Your Honor. I did have
25 one brief request with respect to that, which is
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1 there is one subpart of our motion with respect to
2 the trial subpoena issue that involves a
3 representation about what Mr. Fegan said on the
4 record. So, if Your Honor would allow, we would
5 like for him to just briefly address that one
6 subpart.
7 THE COURT: That's fine, but anything on the
8 record should be on the record, and that should be
9 attached to the motion papers. So, I'm just
10 saying I'm -- I presume Mr. Fegan is not going to
11 be saying what he said on the record, he's just
12 going to just be making the argument, and that's
13 fine.
14 MR. DINUNZIO: Correct, Your Honor.
15 THE COURT: I'll allow that. And before we
16 go any further, I just want to make sure we are
17 aware we do have a court reporter here who is
18 going to be taking everything down, so make sure
19 that you speak slowly. All right.
20 Mr. Dinunzio, you may proceed.
21 MR. DINUNZIO: Thank you, Your Honor. May it
22 please the Court. Hedman has brought its
23 post-trial motion seeking judgment notwithstanding
24 the verdict, or in the alternative, for a new
25 trial for four reasons. I will, for the most
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1 part, rely on what is in our papers and try to be
2 as brief as possible today, understanding everyone
3 is very busy.
4 The first prong of our motion is a
5 judgment -- is for judgment notwithstanding
6 verdict. And the basis for that application is
7 that the proof offered by the plaintiff was
8 legally insufficient under Nemeth, Parker and
9 related Court of Appeals jurisprudence to support
10 the award rendered by the jury.
11 Nemeth requires a scientific expression of
12 the plaintiff's exposure to asbestos fiber in a
13 Hedman product. And it requires the plaintiff to
14 show that exposure was at a level sufficient to
15 cause the plaintiff's disease, here, mesothelioma.
16 This is plaintiffs' burden at trial to
17 show -- to make that showing based on, A, an
18 adequate factual foundation; and B, the -- that
19 the expert testimony used to show that uses
20 generally accepted scientific methods. Here, the
21 plaintiffs failed to do that for a number of
22 reasons. Let's start with the foundational
23 issues.
24 First, the plaintiff relied on the claim that
25 Hedman's product was comprised of 20 percent
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1 asbestos. And the problem with this claim is that
2 there was no evidence to show that that asbestos
3 was fiber, as that phrase would be generally
4 accepted. And asbestos fiber, the general
5 accepted definition, is fiber that is more than
6 five microns in length with a three-to-one aspect
7 ratio. That's the generally accepted definition
8 of an asbestos fiber in the field of industrial
9 hygiene.
10 Hedman's product was not raw asbestos fiber.
11 The bulk of the product was actually a different
12 mineral, it was a milled lizardite film. And that
13 milling process reduced the minority component of
14 that film that was contaminated with chrysotile
15 asbestos to a length less than five microns, the
16 bulk of that material. So that's not fiber as it
17 is defined. So that was a foundational issue.
18 The second major foundational issue is that
19 the only exposure levels that the plaintiff
20 offered here were based on measurements in
21 Hedman's mining operation in Timmins, Ontario.
22 And we think that under Nemeth and Parker and
23 their progeny, that that is not a reliable
24 comparison to what Mr. Viglietta's exposure level
25 would have been working with Hedman's end product
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1 in Occidental's North Tonawanda plant for a couple
2 of reasons.
3 First, the environmental conditions at the
4 mine where the Hedman mineral was being extracted
5 from the environment in no way resembled the
6 conditions in Hedman's plant. And on that
7 particular point, you know, this issue was dealt
8 with -- this argument was dealt with in the Juni
9 case.
10 Now, Juni was another asbestos case that the
11 defendant was granted judgment notwithstanding the
12 verdict. That decision was affirmed on appeal by
13 first the First Department and the New York Court
14 of Appeals. And in Juni, in the Court's
15 post-trial court decision, the Court held that
16 studies showing the levels of exposures in
17 factories where workers used raw asbestos to
18 manufacture a defendants' product are not
19 probative of what a plaintiff who had contact with
20 the defendants' end product was exposed to. And
21 the same is true here. The end product here is
22 the Hedman cationic fiber after it had been milled
23 and was sent to North Tonawanda and used.
24 So we think Juni actually speaks to this
25 comparison and actually says that it is not an
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1 appropriate basis for comparison.
2 The second foundational problem with the
3 exposure levels is that we know that exposure
4 level information was available from Occidental
5 during the time period in question. They were
6 subject to OSHA regulations. They were required
7 to monitor airborne asbestos levels.
8 Plaintiffs demonstrated that they could
9 request information from Occidental, and
10 Occidental responded to their document requests
11 within a few weeks at the outset of the case.
12 So, that's important here because we think it
13 demonstrates that requiring the plaintiff to
14 produce exposure levels at North Tonawanda is
15 not -- does not implicate the concern raised in
16 Parker. And other cases that require plaintiff to
17 do this would set a, quote, insurmountable
18 standard. That's one of the concerns raised in
19 the Parker decision.
20 And, you know, there may be other contexts
21 where you were dealing with exposures before OSHA
22 was in place, before asbestos monitoring was in
23 place, where it may be exceedingly difficult to
24 get actual exposure levels out of a manufacturing
25 operation like Durez', but we submit that's not
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1 the case here.
2 So, that's, that's sort of the sum of what we
3 wanted to offer today on foundation.
4 Now, the other reason that the plaintiffs'
5 case is legally insufficient is because the
6 methods relied on by their expert, particularly
7 Dr. Zhang, were unreliable and don't comport with
8 Nemeth, Parker and related Court of Appeals
9 decisions.
10 Specifically, the plaintiffs relied on the
11 claim that virtually any exposure above background
12 could cause disease. And here, the proposition is
13 that exposures between 0 and .5 fiber CC years
14 were sufficient to cause disease. And we think
15 that this is a contention that is not
16 epidemiologically or legally valid. Likewise, the
17 plaintiffs' reference to a consensus among the
18 medical community about low level asbestos
19 exposure has likewise been rejected as a proxy for
20 demonstrating legal causation.
21 The Court of Appeals has expressly rejected
22 that in the Juni decision, as well. And I think
23 to -- I think it is important to note here that
24 this notion that there is, quote, no safe level of
25 asbestos exposure, was heavily relied on by
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1 plaintiffs' counsel in closing remarks, that they
2 repeated this phrase to the jury nine separate
3 times. We think that doesn't comport with the
4 standard that the Court of Appeals has set in
5 Nemeth, and Hedman should be granted judgment
6 notwithstanding the verdict as a result.
7 So, Your Honor, that's sort of the sum of our
8 argument on judgment notwithstanding the verdict.
9 The next prong of our motion is our motion
10 for a new trial, and we are seeking a new trial
11 here for three reasons. The first reason is that
12 we believe that Hedman was -- its trial subpoena
13 to Occidental was quashed incorrectly in our view
14 at the outset.
15 At the outset, it is important to note that
16 Occidental Corporation is a Domestic New York
17 Corporation. There's no dispute here that they
18 were validly served with the trial subpoena.
19 There's no dispute here that they were served
20 within sufficient time to respond to the subpoena.
21 There's no dispute here that under New York law,
22 Hedman has an absolute and unlimited right to
23 issue a trial subpoena. And that's the
24 Ocean-Clear case which is cited in our briefs.
25 The issue here is that Occidental has
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1 submitted an attorney affidavit saying it does not
2 have a witness to testify, and it would be unduly
3 burdensome to create one. The problem with that
4 position is that it is -- it was Occidental's
5 burden here to demonstrate that the subpoena
6 should be quashed. And an attorney affidavit
7 carries with it no evidentiary weight. In
8 particular, the affidavit of Devon Hogan was not
9 of his personal knowledge. It doesn't say
10 anywhere that it is sworn on his personal
11 knowledge. He makes a series of legal contentions
12 and statements that don't explain who at
13 Occidental he spoke to, what records people
14 searched for, who performed the search, or
15 anything else about why Occidental was unable to
16 produce a witness. So, we think that that is
17 insufficient.
18 The question of Occidental's conduct at its
19 North Tonawanda plant was highly relevant to the
20 issues being adjudicated, particularly Hedman's
21 defenses that it gave a legally sufficient warning
22 to Occidental on the bags of its product, and also
23 with respect to apportionment.
24 So, on the apportionment issue, this is the
25 issue that Mr. Fegan is going to briefly address
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1 in terms of how we think that further prejudiced
2 us and warrants a new trial, Your Honor.
3 MR. FEGAN: Thank you. Thank you for
4 allowing me to speak on this briefly, Judge. I
5 believe the representations that I wanted to
6 address were the portions of the record in the
7 trial in which I mentioned I could not get
8 Occidental on the verdict sheet because of the
9 workers compensation issue because they weren't a
10 party to the case.
11 I can only make representations and make my
12 trial strategy based on what I know. The issue of
13 which entities were settled came up multiple times
14 during the trial. The issue of our GOL 15-108
15 rights came up multiple times during the trial. I
16 believe it specifically came up during our charge
17 conference as to the issue of recklessness and
18 why, in our view, it wasn't an issue with respect
19 to who was on the verdict sheet.
20 Had we known that Occidental was a settled
21 entity at any time during the trial, the verdict
22 sheet that would have been submitted to you would
23 have had them on it, and we would have asked for
24 an apportionment to them under GOL 15-108, not
25 under Article 16, but GOL 15-108 specifically as a
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1 settled tortfeasor. If we don't know that, I
2 can't ask you for it. That's the reason I didn't
3 ask you for it because I didn't know that they
4 were settled. That's why I wanted to address that
5 what I said during the trial was based on the
6 facts as I knew them at the time.
7 And to the extent they were different during
8 the trial, we weren't informed of it, and it
9 definitely would have changed our trial strategy,
10 in particular, apportioning someone, or an entity
11 that had control over the work site where the
12 plaintiff spent his entire period of exposure.
13 So, other than what is in the papers, that's
14 what I wanted to address. I do think that it
15 would warrant a new trial. It is very, very
16 important to the type of case we would have put on
17 had we known that. That would have been something
18 before you whether or not we got them on the
19 verdict sheet or not. Thank you.
20 THE COURT: Anything further, or is that the
21 conclusion of the oral argument on behalf of
22 Hedman?
23 MR. DINUNZIO: Just very briefly, Your Honor.
24 I wanted to address the last two aspects of our
25 motion. So, the second reason we are seeking a
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1 new trial is that we believe that it was error to
2 not submit to the jury the question of whether
3 Occidental's negligence in failing to pass on a
4 warning for Hedman, or otherwise supervising the
5 North Tonawanda plant, could have been an
6 intervening cause which severed any chain of
7 proximate causations between Hedman, Hedman's
8 product, and the plaintiff's injury. And here,
9 there are really kind of two -- just two things
10 very briefly I wanted to bring out.
11 One, the notion that Occidental would not
12 comply with OSHA regulations, and we put in our
13 briefs the many OSHA regulations that were
14 implemented beginning in 1973, all different
15 precautions or requirements monitoring safety
16 measures Occidental was under a statutory
17 obligation to undertake. It was not foreseeable
18 that they would have failed to undertake them.
19 So, we think that distinguishes this case
20 from the Deronde decision, and we think this case
21 is more analogous to McLaughlin and Billsborrow.
22 The only other thing to point out here is
23 that Hedman did not have a similar obligation, so
24 we are not dealing with, fundamentally, the same
25 negligence or the same conduct as between Hedman
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1 and Occidental. And we think that that is also --
2 that's also important here, but again, our
3 contention is not that the jury necessarily should
4 have found in Hedman's favor on the issue, but
5 that this issue of -- was an issue that should
6 have been submitted to the jury for their
7 consideration.
8 Finally, with respect to the recklessness
9 issue, recklessness is only an issue that arises
10 under Article 16. The only entity on the verdict
11 sheet was the Manville Asbestos Personal Injury
12 Trust. They were a settled tortfeasor. So, our
13 apportionment claim against the only entity on the
14 verdict sheet arose under Section 15-108 of the
15 General Obligations Law, it did not arise under
16 Article 16. And Article 16, its plain language
17 says that it cannot alter or impair our rights
18 under the GOL.
19 So, the recklessness issue was irrelevant to
20 any issue to the jury that had consideration. And
21 so, allowing the plaintiff to address the jury and
22 suggest that Hedman had acted recklessly was not
23 relevant to any issue, and it was prejudicial
24 because it had no relevance, and it only could
25 have bolstered the plaintiffs' case.
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1 Finally, we think under Maltese, where there
2 were warnings on Hedman's bag of product at all
3 relevant times, that there's simply no valid line
4 of reasoning or rational inference by which the
5 jury could have concluded that Hedman had acted
6 with reckless disregard to the safety of others.
7 THE COURT: Okay.
8 MR. DINUNZIO: Thank you, Your Honor, for
9 your time.
10 THE COURT: Okay. Mr. Dymond?
11 MR. DYMOND: Thank you, Your Honor. So, on
12 the causation issue, I wanted to kind of start
13 with a more of an overarching principle, which is,
14 you know, Your Honor, you have presided over
15 asbestos trials before. You've recently presided
16 over one involving these exact same counsel,
17 albeit with different clients. Causation has been
18 challenged in those. You have affirmed causation
19 findings post-verdict. The Fourth Department has
20 affirmed your post-verdict decisions on causation.
21 So, what we did in this case was everything
22 that was done in those cases and one step further,
23 which is to address the Nemeth decision. And the
24 approach we took at the time, because Nemeth was
25 very fresh at the time, it had come out
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1 approximately two weeks before we started this
2 trial. And there, at the time, was a lot of
3 questions about what Nemeth actually meant.
4 So, our approach to this trial was to take
5 the strictest interpretation of Nemeth, one that
6 was the most contrary to the plaintiffs' position,
7 and to elicit evidence to satisfy that in its most
8 strictest sense to insure that we presented
9 legally sufficient evidence to comport with
10 Nemeth.
11 So what that really means is in addition to
12 what we have normally done, in which you have
13 affirmed and which has been affirmed by the Fourth
14 Department, is to present evidence of the
15 threshold level at which mesothelioma is known to
16 be caused based on the literature; and then to
17 compare that to the plaintiff's dose from Hedman's
18 fiber, and to reach the conclusion that the dose
19 from Hedman's fiber exceeded that minimum
20 threshold level for disease.
21 So when we look at really the evidence in
22 this case, I think it is noteworthy at the outset
23 to say the general causation is not in dispute.
24 It is not challenged. The notion that asbestos
25 can cause pleural mesothelioma is not in dispute.
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1 So, that leaves us solely with the issue of
2 specific causation. And as somewhat of another
3 primer before delving a little bit deeper into
4 some of the foundation and the evidence, I will
5 say, Your Honor, and you may have a history that
6 is different from mine, but, I've been involved in
7 a lot of trials that involve experts, whether it
8 is asbestos, medical malpractice, other issues
9 where expert testimony is required, and never
10 before in my career have I seen an instance where
11 there is no competing opinions from the experts on
12 either side of the aisle. No conflicts whatsoever
13 as to causation methodology, opinions in the case.
14 So that, I think, colors the entire argument about
15 causation on this motion.
16 And when you look at specific causation, it
17 really starts with the methodology. And what Dr.
18 Zhang said it is a five-prong methodology:
19 Frequency, latency, proximity, duration and
20 intensity.
21 THE COURT: I'm sorry, you kind of cut out
22 there. You froze. Let me just say where I recall
23 you being. You mentioned the five prongs of the
24 methodology. You were going through the five
25 prongs. I don't know if you finished all five or
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1 not.
2 MR. DYMOND: Okay. So, frequency, latency,
3 proximity, duration, intensity. The first four
4 are not even in dispute. The factual recitation
5 as to frequency, proximity, duration are rather
6 clear. Latency is rather clear, 47 years. So,
7 that leaves us with intensity. And intensity
8 means dose, and that was testified to by
9 Dr. Zhang.
10 And so, when we look at the minimum threshold
11 level as far as Nemeth is concerned, the testimony
12 was not simply pulled out of thin air, it was
13 predicated on four specifically identified
14 epidemiological studies, including one that solely
15 addressed chrysotile asbestos, the type of
16 asbestos here. And the conclusion there was
17 a range of 0 to .5 fibers per CC is a range at
18 which we know asbestos can cause mesothelioma.
19 And the idea that you are hearing from the
20 defendant that, okay, this means, or is somehow a
21 surrogate for a no safe level opinion, well, it
22 certainly is not. This is exactly what Nemeth is
23 directing the plaintiff to do. And at no point
24 did Dr. Zhang say that any level of asbestos can
25 cause disease. He said he, from a prophylactic
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1 standpoint, advises his clients to stay away from
2 all asbestos because you just don't know. You
3 want to be safe. Better safe than sorry.
4 He also testified in his transcript, which is
5 the 5/24 transcript at Pages 61 and 62 that at
6 0.15, that's a level where there's going to be
7 increased risk. So, I think the kind of synopsis
8 of this in opposition to a claim of -- that we are
9 pursuing a no safe level is, first, our opinion is
10 based on the epidemiology, and no one contested
11 that epidemiology. What you are hearing today is
12 an attorney trying to address expert evidence
13 without any expert supporting that argument.
14 And when you say zero, of course, zero means
15 zero. If you have no asbestos exposure, you have
16 no risk. Dr. Zhang even said at the background
17 level, which is higher than zero, there is no risk
18 of developing mesothelioma.
19 So, when you look at that epidemiology, it is
20 not saying no safe level. It is not saying zero,
21 there is a risk. It is saying that there's
22 a range, and at some point along that range, the
23 risk turns into a level that demonstrates
24 causation. And that's why he said point -- 0.15
25 still attributes elevated risk. And don't take
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1 his word alone for it, look at defendants' own
2 expert, Dr. Safirstein, who reached the conclusion
3 that 0.1, lower than Dr. Zhang, confers elevated
4 risk to the point of causation.
5 So, according to the Nemeth standard, we have
6 elicited the minimum threshold level. And just
7 one other point on that. If you look at the
8 defendants' memo of law in their original motion
9 papers between Pages 31 and 34, they state
10 repeatedly that the standard in Nemeth, citing to
11 the same exact page in the Nemeth decision, Page
12 5, stands for the proposition that you need
13 studies that resemble the decedent's exposure to
14 be elicited, but the plaintiff there did not do
15 that. That's not what Nemeth says. Nemeth says
16 you need to elicit levels that cause the disease,
17 but the plaintiff didn't do so in the Nemeth case.
18 That's exactly what we did here. So I think that
19 is rather straight forward as to the threshold
20 issue.
21 Then we get to the dose issue. And
22 Dr. Zhang, he -- we elicited from Dr. Zhang,
23 rather, a rather clear, quantified dose predicated
24 on, first, the literature, four particular pieces
25 of literature. And secondly, the factual
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1 background of the plaintiff's exposure from the
2 Hedman fiber, and that was .2 to 2.5.
3 So, certainly, we don't even need an opinion
4 from Dr. Zhang to say that that level exceeds the
5 minimum threshold, but nonetheless, he still
6 rendered the opinion clearly during the trial that
7 that dose exceeds the minimum threshold to cause
8 disease.
9 Now, briefly addressing the foundation,
10 because there, in fact, is no conflicting expert
11 opinion about the foundation. Dr. Safirstein went
12 well beyond what Dr. Zhang did and said the
13 literature shows that this type of exposure is
14 between a hundred and a thousand fibers per CC,
15 but nonetheless, I think some of the important
16 parts of Dr. Zhang's foundation is the NIH
17 document, which was not addressed at all in
18 defendants' opening memo of law, nor during the
19 trial at all in cross-examination of Dr. Zhang.
20 It is a piece of reliance materials that is
21 completely unchallenged. And what defendant does
22 is try to address that for the first time in reply
23 by saying, well, this is not really a study. If
24 you look at the forward to that document, it says
25 we are providing information based on the science.
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1 So, when we get to the portion where it says
2 exposures in plastic molding factories, which is
3 exactly what Durez was, range on a quantified
4 basis from .2 to 2.5, we are basing that on the
5 science. It is not out of the blue. And that
6 standing alone, I think, supports his opinion,
7 because it is unchallenged at this point.
8 But then we have other reliance material,
9 including the talc paint dumping study, which
10 Dr. Zhang deemed comparable. And I think that's
11 one of the critical words, comparable to the
12 plaintiff's exposure. And he set forth all of the
13 factors why he deemed it comparable. It had
14 comparable asbestos content. It was the exact
15 same activity, taking bags that are the exact
16 size, 50 pounds of loose fiber, dumping them out
17 into a hopper in the same type of environment
18 where there was ventilation even in place. And
19 the levels, not surprisingly, conformed exactly to
20 the other studies.
21 And so Dr. Zhang said this is consistency,
22 this is validating science. And he noted that
23 this is how you pursue evidence-based medicine.
24 When you don't have actual measurements in the
25 plant, which I'll get to in a moment, you look to
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23
1 the literature. You look for comparable
2 situations, and you then see whether they exceed
3 the levels known to cause disease, and that's
4 exactly what he did.
5 So, then, I think we get to these arguments
6 where knowing all of this, knowing that there's no
7 conflict, the defendants start grasping at straws
8 to say: Well, you had to -- we were required to
9 identify measurements in the plant itself in order
10 to satisfy the causation standard under New York
11 law.
12 Well, as a starting point, we don't have
13 those levels. We don't have any discovery in this
14 case or any other case from Occidental that set
15 forth those levels. The defendant, as you are now
16 aware, has voluminous, that's the word they used
17 in their papers, documentation from Occidental,
18 yet they have not presented anything to the Court
19 showing actual levels. And if they had them,
20 presumably, and if they were low enough to assist
21 them in their argument, presumably, they would
22 have presented them. They haven't.
23 But even putting that aside, when you look at
24 Parker, when you look at Nemeth, it is rather
25 clear that the standard that the plaintiff needs
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24
1 to abide by is using generally accepted medicine
2 or methodologies to establish causation.
3 Generally accepted does not mean you must only
4 look to the plant itself. Both Dr. Zhang and Dr.
5 Safirstein confirm that what they do is they look
6 at the literature, because neither of them in
7 their practice has ever seen an instance where
8 actual measurements were taken at the facility or
9 on the plaintiff from 40 or 50, 60 years ago.
10 So, that being said, Your Honor, I think
11 there's just simply no basis in this case to
12 overturn this verdict as to the causation issue.
13 And let me make one other point on this,
14 which is the argument about the factual foundation
15 that you heard about, the 20 percent asbestos in
16 the Hedman fiber.
17 Initially, that argument is made without
18 really reference to the standard of review. The
19 standard of review is is there any valid line of
20 reasoning or permissible inferences that would
21 have allowed the jury to reach the conclusion that
22 it did.
23 So, amongst a lot of evidence, I'll just
24 point to three in particular. Our Exhibit B to
25 our opposition, which went in as plaintiffs'
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25
1 Exhibit 15 is the Professor Bragg document, noting
2 20 percent fiber content, and that Hedman's claim
3 of less than .2 or 1 percent was simply false.
4 Then we have Exhibit Double E to our
5 opposition, which is -- which went in as Hedman
6 plaintiffs' Exhibit Number 16, which demonstrates
7 that among 11 samples, there was an average
8 content of 19.7.
9 And lastly, you have the testimony from the
10 CIH, Mr. Rajhans, who, when faced with this claim
11 by Hedman that there was a lower content of
12 asbestos in the product, that his testimony at
13 Page 53 of the Clip report, which is our Exhibit Q
14 to our opposition was that it is simply false.
15 So, that certainly is a valid line of
16 reasoning for the notion that this contained 20
17 percent asbestos, but I would submit to the Court
18 that that is a factual piece of evidence that is
19 not even needed on this record because the more
20 critical issue is not how much asbestos is in the
21 product, the more critical issue is how much
22 asbestos is being released from the product. That
23 was the predicate for the hypothetical given to
24 Dr. Zhang.
25 The quantified dose of the asbestos released
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26
1 into the air that was inhaled by Mr. Viglietta was
2 part of the hypothetical, and that's the critical
3 piece of the evidence, and that's exactly what
4 Nemeth says. Nemeth says you can't use a glove
5 box test because it doesn't address inhalation
6 levels. These are real-world field studies that
7 address actual inhalation levels.
8 So, next, Your Honor, would be the new trial
9 arguments, the first being as to the Occidental
10 subpoena. I think it is again important to note
11 the standard of review that we are dealing with.
12 It is one that requires the defendants to show
13 that substantial justice has not been done, and
14 there has to be a showing that the verdict would
15 have been affected, and that simply is not done in
16 the context of the subpoenas. And there's another
17 overarching point I think I have to make about
18 this.
19 If you look at the defendants' motion, I
20 would submit at least half of th
Preview
FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 Exhibit B FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 1 1 STATE OF NEW YORK : COUNTY OF NIAGARA SUPREME COURT EIGHTH JUDICIAL DISTRICT 2 _______________________________________________ 3 In Re: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION 4 _____________________________________________ BENEDICT VIGLIETTA and 5 TERRI VIGLIETTA, 6 PLAINTIFFS, INDEX #E17471/2021 7 -VS- MOTION 8 9 ASBESTOS CORPORATION LIMITED, ET AL., 10 DEFENDANTS, 11 _____________________________________________ 12 25 Delaware Avenue 13 Buffalo, New York 14202 October 13, 2022 14 HELD BEFORE: HONORABLE DEBORAH A. CHIMES, 15 SUPREME COURT JUSTICE. 16 APPEARANCES: SETH DYMOND, ESQ., Appearing for the Plaintiff. 17 PETER DINUNZIO, ESQ., 18 JEFFREY FEGAN, ESQ., Appearing for Defendant Hedman Resources. 19 20 LISA G. PAZDERSKI, Supreme Court Reporter. 21 22 23 24 25 FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 2 1 THE CLERK: In the matter of Viglietta versus 2 Asbestos Corporation, Limited, Index Number 3 E174717-2021. Counselors, please note your 4 appearance for the record, beginning with the 5 plaintiff. 6 MR. DYMOND: Good morning, Your Honor. Seth 7 Dymond from Belluck and Fox on behalf of the 8 plaintiff. 9 MR. DINUNZIO: Peter Dinunzio from Clyde Co, 10 LLP on behalf of the defendant, Hedman Resources. 11 I'm here with my colleague, Jeff Fegan. 12 MR. FEGAN: Good morning, Judge. 13 THE COURT: Good morning. All right. Before 14 we begin on the oral argument, I just want to note 15 there was a cross-motion brought by the plaintiff 16 relative to the life expectancy, which, when I 17 reviewed it, there's a stipulation that the 18 parties agreed to, so I will have Colleen upload 19 Document 528, and I will then sign that. I 20 realized I didn't sign it. Okay. 21 With that, then, we are on the motions, 22 defense motions. So Mr. Dinunzio, you are the one 23 that is going to be orally arguing? 24 MR. DINUNZIO: Yes, Your Honor. I did have 25 one brief request with respect to that, which is FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 3 1 there is one subpart of our motion with respect to 2 the trial subpoena issue that involves a 3 representation about what Mr. Fegan said on the 4 record. So, if Your Honor would allow, we would 5 like for him to just briefly address that one 6 subpart. 7 THE COURT: That's fine, but anything on the 8 record should be on the record, and that should be 9 attached to the motion papers. So, I'm just 10 saying I'm -- I presume Mr. Fegan is not going to 11 be saying what he said on the record, he's just 12 going to just be making the argument, and that's 13 fine. 14 MR. DINUNZIO: Correct, Your Honor. 15 THE COURT: I'll allow that. And before we 16 go any further, I just want to make sure we are 17 aware we do have a court reporter here who is 18 going to be taking everything down, so make sure 19 that you speak slowly. All right. 20 Mr. Dinunzio, you may proceed. 21 MR. DINUNZIO: Thank you, Your Honor. May it 22 please the Court. Hedman has brought its 23 post-trial motion seeking judgment notwithstanding 24 the verdict, or in the alternative, for a new 25 trial for four reasons. I will, for the most FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 4 1 part, rely on what is in our papers and try to be 2 as brief as possible today, understanding everyone 3 is very busy. 4 The first prong of our motion is a 5 judgment -- is for judgment notwithstanding 6 verdict. And the basis for that application is 7 that the proof offered by the plaintiff was 8 legally insufficient under Nemeth, Parker and 9 related Court of Appeals jurisprudence to support 10 the award rendered by the jury. 11 Nemeth requires a scientific expression of 12 the plaintiff's exposure to asbestos fiber in a 13 Hedman product. And it requires the plaintiff to 14 show that exposure was at a level sufficient to 15 cause the plaintiff's disease, here, mesothelioma. 16 This is plaintiffs' burden at trial to 17 show -- to make that showing based on, A, an 18 adequate factual foundation; and B, the -- that 19 the expert testimony used to show that uses 20 generally accepted scientific methods. Here, the 21 plaintiffs failed to do that for a number of 22 reasons. Let's start with the foundational 23 issues. 24 First, the plaintiff relied on the claim that 25 Hedman's product was comprised of 20 percent FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 5 1 asbestos. And the problem with this claim is that 2 there was no evidence to show that that asbestos 3 was fiber, as that phrase would be generally 4 accepted. And asbestos fiber, the general 5 accepted definition, is fiber that is more than 6 five microns in length with a three-to-one aspect 7 ratio. That's the generally accepted definition 8 of an asbestos fiber in the field of industrial 9 hygiene. 10 Hedman's product was not raw asbestos fiber. 11 The bulk of the product was actually a different 12 mineral, it was a milled lizardite film. And that 13 milling process reduced the minority component of 14 that film that was contaminated with chrysotile 15 asbestos to a length less than five microns, the 16 bulk of that material. So that's not fiber as it 17 is defined. So that was a foundational issue. 18 The second major foundational issue is that 19 the only exposure levels that the plaintiff 20 offered here were based on measurements in 21 Hedman's mining operation in Timmins, Ontario. 22 And we think that under Nemeth and Parker and 23 their progeny, that that is not a reliable 24 comparison to what Mr. Viglietta's exposure level 25 would have been working with Hedman's end product FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 6 1 in Occidental's North Tonawanda plant for a couple 2 of reasons. 3 First, the environmental conditions at the 4 mine where the Hedman mineral was being extracted 5 from the environment in no way resembled the 6 conditions in Hedman's plant. And on that 7 particular point, you know, this issue was dealt 8 with -- this argument was dealt with in the Juni 9 case. 10 Now, Juni was another asbestos case that the 11 defendant was granted judgment notwithstanding the 12 verdict. That decision was affirmed on appeal by 13 first the First Department and the New York Court 14 of Appeals. And in Juni, in the Court's 15 post-trial court decision, the Court held that 16 studies showing the levels of exposures in 17 factories where workers used raw asbestos to 18 manufacture a defendants' product are not 19 probative of what a plaintiff who had contact with 20 the defendants' end product was exposed to. And 21 the same is true here. The end product here is 22 the Hedman cationic fiber after it had been milled 23 and was sent to North Tonawanda and used. 24 So we think Juni actually speaks to this 25 comparison and actually says that it is not an FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 7 1 appropriate basis for comparison. 2 The second foundational problem with the 3 exposure levels is that we know that exposure 4 level information was available from Occidental 5 during the time period in question. They were 6 subject to OSHA regulations. They were required 7 to monitor airborne asbestos levels. 8 Plaintiffs demonstrated that they could 9 request information from Occidental, and 10 Occidental responded to their document requests 11 within a few weeks at the outset of the case. 12 So, that's important here because we think it 13 demonstrates that requiring the plaintiff to 14 produce exposure levels at North Tonawanda is 15 not -- does not implicate the concern raised in 16 Parker. And other cases that require plaintiff to 17 do this would set a, quote, insurmountable 18 standard. That's one of the concerns raised in 19 the Parker decision. 20 And, you know, there may be other contexts 21 where you were dealing with exposures before OSHA 22 was in place, before asbestos monitoring was in 23 place, where it may be exceedingly difficult to 24 get actual exposure levels out of a manufacturing 25 operation like Durez', but we submit that's not FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 8 1 the case here. 2 So, that's, that's sort of the sum of what we 3 wanted to offer today on foundation. 4 Now, the other reason that the plaintiffs' 5 case is legally insufficient is because the 6 methods relied on by their expert, particularly 7 Dr. Zhang, were unreliable and don't comport with 8 Nemeth, Parker and related Court of Appeals 9 decisions. 10 Specifically, the plaintiffs relied on the 11 claim that virtually any exposure above background 12 could cause disease. And here, the proposition is 13 that exposures between 0 and .5 fiber CC years 14 were sufficient to cause disease. And we think 15 that this is a contention that is not 16 epidemiologically or legally valid. Likewise, the 17 plaintiffs' reference to a consensus among the 18 medical community about low level asbestos 19 exposure has likewise been rejected as a proxy for 20 demonstrating legal causation. 21 The Court of Appeals has expressly rejected 22 that in the Juni decision, as well. And I think 23 to -- I think it is important to note here that 24 this notion that there is, quote, no safe level of 25 asbestos exposure, was heavily relied on by FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 9 1 plaintiffs' counsel in closing remarks, that they 2 repeated this phrase to the jury nine separate 3 times. We think that doesn't comport with the 4 standard that the Court of Appeals has set in 5 Nemeth, and Hedman should be granted judgment 6 notwithstanding the verdict as a result. 7 So, Your Honor, that's sort of the sum of our 8 argument on judgment notwithstanding the verdict. 9 The next prong of our motion is our motion 10 for a new trial, and we are seeking a new trial 11 here for three reasons. The first reason is that 12 we believe that Hedman was -- its trial subpoena 13 to Occidental was quashed incorrectly in our view 14 at the outset. 15 At the outset, it is important to note that 16 Occidental Corporation is a Domestic New York 17 Corporation. There's no dispute here that they 18 were validly served with the trial subpoena. 19 There's no dispute here that they were served 20 within sufficient time to respond to the subpoena. 21 There's no dispute here that under New York law, 22 Hedman has an absolute and unlimited right to 23 issue a trial subpoena. And that's the 24 Ocean-Clear case which is cited in our briefs. 25 The issue here is that Occidental has FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 10 1 submitted an attorney affidavit saying it does not 2 have a witness to testify, and it would be unduly 3 burdensome to create one. The problem with that 4 position is that it is -- it was Occidental's 5 burden here to demonstrate that the subpoena 6 should be quashed. And an attorney affidavit 7 carries with it no evidentiary weight. In 8 particular, the affidavit of Devon Hogan was not 9 of his personal knowledge. It doesn't say 10 anywhere that it is sworn on his personal 11 knowledge. He makes a series of legal contentions 12 and statements that don't explain who at 13 Occidental he spoke to, what records people 14 searched for, who performed the search, or 15 anything else about why Occidental was unable to 16 produce a witness. So, we think that that is 17 insufficient. 18 The question of Occidental's conduct at its 19 North Tonawanda plant was highly relevant to the 20 issues being adjudicated, particularly Hedman's 21 defenses that it gave a legally sufficient warning 22 to Occidental on the bags of its product, and also 23 with respect to apportionment. 24 So, on the apportionment issue, this is the 25 issue that Mr. Fegan is going to briefly address FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 11 1 in terms of how we think that further prejudiced 2 us and warrants a new trial, Your Honor. 3 MR. FEGAN: Thank you. Thank you for 4 allowing me to speak on this briefly, Judge. I 5 believe the representations that I wanted to 6 address were the portions of the record in the 7 trial in which I mentioned I could not get 8 Occidental on the verdict sheet because of the 9 workers compensation issue because they weren't a 10 party to the case. 11 I can only make representations and make my 12 trial strategy based on what I know. The issue of 13 which entities were settled came up multiple times 14 during the trial. The issue of our GOL 15-108 15 rights came up multiple times during the trial. I 16 believe it specifically came up during our charge 17 conference as to the issue of recklessness and 18 why, in our view, it wasn't an issue with respect 19 to who was on the verdict sheet. 20 Had we known that Occidental was a settled 21 entity at any time during the trial, the verdict 22 sheet that would have been submitted to you would 23 have had them on it, and we would have asked for 24 an apportionment to them under GOL 15-108, not 25 under Article 16, but GOL 15-108 specifically as a FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 12 1 settled tortfeasor. If we don't know that, I 2 can't ask you for it. That's the reason I didn't 3 ask you for it because I didn't know that they 4 were settled. That's why I wanted to address that 5 what I said during the trial was based on the 6 facts as I knew them at the time. 7 And to the extent they were different during 8 the trial, we weren't informed of it, and it 9 definitely would have changed our trial strategy, 10 in particular, apportioning someone, or an entity 11 that had control over the work site where the 12 plaintiff spent his entire period of exposure. 13 So, other than what is in the papers, that's 14 what I wanted to address. I do think that it 15 would warrant a new trial. It is very, very 16 important to the type of case we would have put on 17 had we known that. That would have been something 18 before you whether or not we got them on the 19 verdict sheet or not. Thank you. 20 THE COURT: Anything further, or is that the 21 conclusion of the oral argument on behalf of 22 Hedman? 23 MR. DINUNZIO: Just very briefly, Your Honor. 24 I wanted to address the last two aspects of our 25 motion. So, the second reason we are seeking a FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 13 1 new trial is that we believe that it was error to 2 not submit to the jury the question of whether 3 Occidental's negligence in failing to pass on a 4 warning for Hedman, or otherwise supervising the 5 North Tonawanda plant, could have been an 6 intervening cause which severed any chain of 7 proximate causations between Hedman, Hedman's 8 product, and the plaintiff's injury. And here, 9 there are really kind of two -- just two things 10 very briefly I wanted to bring out. 11 One, the notion that Occidental would not 12 comply with OSHA regulations, and we put in our 13 briefs the many OSHA regulations that were 14 implemented beginning in 1973, all different 15 precautions or requirements monitoring safety 16 measures Occidental was under a statutory 17 obligation to undertake. It was not foreseeable 18 that they would have failed to undertake them. 19 So, we think that distinguishes this case 20 from the Deronde decision, and we think this case 21 is more analogous to McLaughlin and Billsborrow. 22 The only other thing to point out here is 23 that Hedman did not have a similar obligation, so 24 we are not dealing with, fundamentally, the same 25 negligence or the same conduct as between Hedman FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 14 1 and Occidental. And we think that that is also -- 2 that's also important here, but again, our 3 contention is not that the jury necessarily should 4 have found in Hedman's favor on the issue, but 5 that this issue of -- was an issue that should 6 have been submitted to the jury for their 7 consideration. 8 Finally, with respect to the recklessness 9 issue, recklessness is only an issue that arises 10 under Article 16. The only entity on the verdict 11 sheet was the Manville Asbestos Personal Injury 12 Trust. They were a settled tortfeasor. So, our 13 apportionment claim against the only entity on the 14 verdict sheet arose under Section 15-108 of the 15 General Obligations Law, it did not arise under 16 Article 16. And Article 16, its plain language 17 says that it cannot alter or impair our rights 18 under the GOL. 19 So, the recklessness issue was irrelevant to 20 any issue to the jury that had consideration. And 21 so, allowing the plaintiff to address the jury and 22 suggest that Hedman had acted recklessly was not 23 relevant to any issue, and it was prejudicial 24 because it had no relevance, and it only could 25 have bolstered the plaintiffs' case. FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 15 1 Finally, we think under Maltese, where there 2 were warnings on Hedman's bag of product at all 3 relevant times, that there's simply no valid line 4 of reasoning or rational inference by which the 5 jury could have concluded that Hedman had acted 6 with reckless disregard to the safety of others. 7 THE COURT: Okay. 8 MR. DINUNZIO: Thank you, Your Honor, for 9 your time. 10 THE COURT: Okay. Mr. Dymond? 11 MR. DYMOND: Thank you, Your Honor. So, on 12 the causation issue, I wanted to kind of start 13 with a more of an overarching principle, which is, 14 you know, Your Honor, you have presided over 15 asbestos trials before. You've recently presided 16 over one involving these exact same counsel, 17 albeit with different clients. Causation has been 18 challenged in those. You have affirmed causation 19 findings post-verdict. The Fourth Department has 20 affirmed your post-verdict decisions on causation. 21 So, what we did in this case was everything 22 that was done in those cases and one step further, 23 which is to address the Nemeth decision. And the 24 approach we took at the time, because Nemeth was 25 very fresh at the time, it had come out FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 16 1 approximately two weeks before we started this 2 trial. And there, at the time, was a lot of 3 questions about what Nemeth actually meant. 4 So, our approach to this trial was to take 5 the strictest interpretation of Nemeth, one that 6 was the most contrary to the plaintiffs' position, 7 and to elicit evidence to satisfy that in its most 8 strictest sense to insure that we presented 9 legally sufficient evidence to comport with 10 Nemeth. 11 So what that really means is in addition to 12 what we have normally done, in which you have 13 affirmed and which has been affirmed by the Fourth 14 Department, is to present evidence of the 15 threshold level at which mesothelioma is known to 16 be caused based on the literature; and then to 17 compare that to the plaintiff's dose from Hedman's 18 fiber, and to reach the conclusion that the dose 19 from Hedman's fiber exceeded that minimum 20 threshold level for disease. 21 So when we look at really the evidence in 22 this case, I think it is noteworthy at the outset 23 to say the general causation is not in dispute. 24 It is not challenged. The notion that asbestos 25 can cause pleural mesothelioma is not in dispute. FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 17 1 So, that leaves us solely with the issue of 2 specific causation. And as somewhat of another 3 primer before delving a little bit deeper into 4 some of the foundation and the evidence, I will 5 say, Your Honor, and you may have a history that 6 is different from mine, but, I've been involved in 7 a lot of trials that involve experts, whether it 8 is asbestos, medical malpractice, other issues 9 where expert testimony is required, and never 10 before in my career have I seen an instance where 11 there is no competing opinions from the experts on 12 either side of the aisle. No conflicts whatsoever 13 as to causation methodology, opinions in the case. 14 So that, I think, colors the entire argument about 15 causation on this motion. 16 And when you look at specific causation, it 17 really starts with the methodology. And what Dr. 18 Zhang said it is a five-prong methodology: 19 Frequency, latency, proximity, duration and 20 intensity. 21 THE COURT: I'm sorry, you kind of cut out 22 there. You froze. Let me just say where I recall 23 you being. You mentioned the five prongs of the 24 methodology. You were going through the five 25 prongs. I don't know if you finished all five or FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 18 1 not. 2 MR. DYMOND: Okay. So, frequency, latency, 3 proximity, duration, intensity. The first four 4 are not even in dispute. The factual recitation 5 as to frequency, proximity, duration are rather 6 clear. Latency is rather clear, 47 years. So, 7 that leaves us with intensity. And intensity 8 means dose, and that was testified to by 9 Dr. Zhang. 10 And so, when we look at the minimum threshold 11 level as far as Nemeth is concerned, the testimony 12 was not simply pulled out of thin air, it was 13 predicated on four specifically identified 14 epidemiological studies, including one that solely 15 addressed chrysotile asbestos, the type of 16 asbestos here. And the conclusion there was 17 a range of 0 to .5 fibers per CC is a range at 18 which we know asbestos can cause mesothelioma. 19 And the idea that you are hearing from the 20 defendant that, okay, this means, or is somehow a 21 surrogate for a no safe level opinion, well, it 22 certainly is not. This is exactly what Nemeth is 23 directing the plaintiff to do. And at no point 24 did Dr. Zhang say that any level of asbestos can 25 cause disease. He said he, from a prophylactic FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 19 1 standpoint, advises his clients to stay away from 2 all asbestos because you just don't know. You 3 want to be safe. Better safe than sorry. 4 He also testified in his transcript, which is 5 the 5/24 transcript at Pages 61 and 62 that at 6 0.15, that's a level where there's going to be 7 increased risk. So, I think the kind of synopsis 8 of this in opposition to a claim of -- that we are 9 pursuing a no safe level is, first, our opinion is 10 based on the epidemiology, and no one contested 11 that epidemiology. What you are hearing today is 12 an attorney trying to address expert evidence 13 without any expert supporting that argument. 14 And when you say zero, of course, zero means 15 zero. If you have no asbestos exposure, you have 16 no risk. Dr. Zhang even said at the background 17 level, which is higher than zero, there is no risk 18 of developing mesothelioma. 19 So, when you look at that epidemiology, it is 20 not saying no safe level. It is not saying zero, 21 there is a risk. It is saying that there's 22 a range, and at some point along that range, the 23 risk turns into a level that demonstrates 24 causation. And that's why he said point -- 0.15 25 still attributes elevated risk. And don't take FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 20 1 his word alone for it, look at defendants' own 2 expert, Dr. Safirstein, who reached the conclusion 3 that 0.1, lower than Dr. Zhang, confers elevated 4 risk to the point of causation. 5 So, according to the Nemeth standard, we have 6 elicited the minimum threshold level. And just 7 one other point on that. If you look at the 8 defendants' memo of law in their original motion 9 papers between Pages 31 and 34, they state 10 repeatedly that the standard in Nemeth, citing to 11 the same exact page in the Nemeth decision, Page 12 5, stands for the proposition that you need 13 studies that resemble the decedent's exposure to 14 be elicited, but the plaintiff there did not do 15 that. That's not what Nemeth says. Nemeth says 16 you need to elicit levels that cause the disease, 17 but the plaintiff didn't do so in the Nemeth case. 18 That's exactly what we did here. So I think that 19 is rather straight forward as to the threshold 20 issue. 21 Then we get to the dose issue. And 22 Dr. Zhang, he -- we elicited from Dr. Zhang, 23 rather, a rather clear, quantified dose predicated 24 on, first, the literature, four particular pieces 25 of literature. And secondly, the factual FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 21 1 background of the plaintiff's exposure from the 2 Hedman fiber, and that was .2 to 2.5. 3 So, certainly, we don't even need an opinion 4 from Dr. Zhang to say that that level exceeds the 5 minimum threshold, but nonetheless, he still 6 rendered the opinion clearly during the trial that 7 that dose exceeds the minimum threshold to cause 8 disease. 9 Now, briefly addressing the foundation, 10 because there, in fact, is no conflicting expert 11 opinion about the foundation. Dr. Safirstein went 12 well beyond what Dr. Zhang did and said the 13 literature shows that this type of exposure is 14 between a hundred and a thousand fibers per CC, 15 but nonetheless, I think some of the important 16 parts of Dr. Zhang's foundation is the NIH 17 document, which was not addressed at all in 18 defendants' opening memo of law, nor during the 19 trial at all in cross-examination of Dr. Zhang. 20 It is a piece of reliance materials that is 21 completely unchallenged. And what defendant does 22 is try to address that for the first time in reply 23 by saying, well, this is not really a study. If 24 you look at the forward to that document, it says 25 we are providing information based on the science. FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 22 1 So, when we get to the portion where it says 2 exposures in plastic molding factories, which is 3 exactly what Durez was, range on a quantified 4 basis from .2 to 2.5, we are basing that on the 5 science. It is not out of the blue. And that 6 standing alone, I think, supports his opinion, 7 because it is unchallenged at this point. 8 But then we have other reliance material, 9 including the talc paint dumping study, which 10 Dr. Zhang deemed comparable. And I think that's 11 one of the critical words, comparable to the 12 plaintiff's exposure. And he set forth all of the 13 factors why he deemed it comparable. It had 14 comparable asbestos content. It was the exact 15 same activity, taking bags that are the exact 16 size, 50 pounds of loose fiber, dumping them out 17 into a hopper in the same type of environment 18 where there was ventilation even in place. And 19 the levels, not surprisingly, conformed exactly to 20 the other studies. 21 And so Dr. Zhang said this is consistency, 22 this is validating science. And he noted that 23 this is how you pursue evidence-based medicine. 24 When you don't have actual measurements in the 25 plant, which I'll get to in a moment, you look to FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 23 1 the literature. You look for comparable 2 situations, and you then see whether they exceed 3 the levels known to cause disease, and that's 4 exactly what he did. 5 So, then, I think we get to these arguments 6 where knowing all of this, knowing that there's no 7 conflict, the defendants start grasping at straws 8 to say: Well, you had to -- we were required to 9 identify measurements in the plant itself in order 10 to satisfy the causation standard under New York 11 law. 12 Well, as a starting point, we don't have 13 those levels. We don't have any discovery in this 14 case or any other case from Occidental that set 15 forth those levels. The defendant, as you are now 16 aware, has voluminous, that's the word they used 17 in their papers, documentation from Occidental, 18 yet they have not presented anything to the Court 19 showing actual levels. And if they had them, 20 presumably, and if they were low enough to assist 21 them in their argument, presumably, they would 22 have presented them. They haven't. 23 But even putting that aside, when you look at 24 Parker, when you look at Nemeth, it is rather 25 clear that the standard that the plaintiff needs FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 24 1 to abide by is using generally accepted medicine 2 or methodologies to establish causation. 3 Generally accepted does not mean you must only 4 look to the plant itself. Both Dr. Zhang and Dr. 5 Safirstein confirm that what they do is they look 6 at the literature, because neither of them in 7 their practice has ever seen an instance where 8 actual measurements were taken at the facility or 9 on the plaintiff from 40 or 50, 60 years ago. 10 So, that being said, Your Honor, I think 11 there's just simply no basis in this case to 12 overturn this verdict as to the causation issue. 13 And let me make one other point on this, 14 which is the argument about the factual foundation 15 that you heard about, the 20 percent asbestos in 16 the Hedman fiber. 17 Initially, that argument is made without 18 really reference to the standard of review. The 19 standard of review is is there any valid line of 20 reasoning or permissible inferences that would 21 have allowed the jury to reach the conclusion that 22 it did. 23 So, amongst a lot of evidence, I'll just 24 point to three in particular. Our Exhibit B to 25 our opposition, which went in as plaintiffs' FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 25 1 Exhibit 15 is the Professor Bragg document, noting 2 20 percent fiber content, and that Hedman's claim 3 of less than .2 or 1 percent was simply false. 4 Then we have Exhibit Double E to our 5 opposition, which is -- which went in as Hedman 6 plaintiffs' Exhibit Number 16, which demonstrates 7 that among 11 samples, there was an average 8 content of 19.7. 9 And lastly, you have the testimony from the 10 CIH, Mr. Rajhans, who, when faced with this claim 11 by Hedman that there was a lower content of 12 asbestos in the product, that his testimony at 13 Page 53 of the Clip report, which is our Exhibit Q 14 to our opposition was that it is simply false. 15 So, that certainly is a valid line of 16 reasoning for the notion that this contained 20 17 percent asbestos, but I would submit to the Court 18 that that is a factual piece of evidence that is 19 not even needed on this record because the more 20 critical issue is not how much asbestos is in the 21 product, the more critical issue is how much 22 asbestos is being released from the product. That 23 was the predicate for the hypothetical given to 24 Dr. Zhang. 25 The quantified dose of the asbestos released FILED: NIAGARA COUNTY CLERK 02/22/2024 02:16 PM INDEX NO. E182634/2024 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2024 26 1 into the air that was inhaled by Mr. Viglietta was 2 part of the hypothetical, and that's the critical 3 piece of the evidence, and that's exactly what 4 Nemeth says. Nemeth says you can't use a glove 5 box test because it doesn't address inhalation 6 levels. These are real-world field studies that 7 address actual inhalation levels. 8 So, next, Your Honor, would be the new trial 9 arguments, the first being as to the Occidental 10 subpoena. I think it is again important to note 11 the standard of review that we are dealing with. 12 It is one that requires the defendants to show 13 that substantial justice has not been done, and 14 there has to be a showing that the verdict would 15 have been affected, and that simply is not done in 16 the context of the subpoenas. And there's another 17 overarching point I think I have to make about 18 this. 19 If you look at the defendants' motion, I 20 would submit at least half of th