Letter,Correspondence: Linda Johnson-Brett, Bradford Brett v. A.O. Smith Corporation.,, Avon Products, Inc.,, Bird Incorporated,, Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,, Burnham, Llc, Individually And As Successor To Burnham Corporation,, Carrier Corporation,, Chanel, Inc.,, Clinique Laboratories, Llc,, Colgate Palmolive Company (For Mennen),, Compudyne Corporation, Individually And As Successor To York-Shipley, Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,, Coty, Inc.,, Crane Co.,, Crown Boiler Co.,, Dap, Inc.,, Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,, Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,, Estee Lauder, Inc.,, Estee Lauder International, Inc.,, Fort Kent Holdings, Inc., F/K/A Dunham-Bush, Inc.,, Friend Lumber Company Of Lowell,, General Electric Company,, Goulds Pumps, Inc.,, Grinnell Llc,, Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,, Honeywell International, Inc., F/K/A Allied Signal, Inc. / Bendix,, Kaiser Gypsum Company, Inc.,, Keeler-Dorr-Oliver Boiler Company,, Macys, Inc.,, Mineral And Pigment Solutions, Inc., F/K/A Whittaker, Clark & Daniels, Inc.,, Minnesota Mining & Manufacturing Company, A/K/A 3m Company,, New Yorker Boiler Co., Inc.,, Paramount Global F/K/A/ Viacomcbs, Inc. F/K/A Cbs Corporation, A Delaware Corporation, F/K/A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F/K/A Westinghouse Electric Corporation,, Pecora Corp.,, Pfizer, Inc., Individually And As Successor To Coty Inc.,, R.W. Beckett Corp.,, Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,, Rheem Manufacturing Co., Rudd Water Heater Division,, Schneider Electric Usa, Inc., Formerly Known As Square D Company, Slant/Fin Corporation,, Sos Products Co. Inc.,, Spirax Sarco, Inc., Individually And As Successor To Sarco Company,, Union Carbide Corporation,, Weil Mclain, A Division Of The Marley Wylain Company,, Whittaker, Clark & Daniels, Inc.,, Parfums De Couer Ltd, Bristol-Myers Squibb Company, Burnham Holdings Llc

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Preview
                                FILED: MONROE COUNTY CLERK 04/12/2024 06:41 PM                                                      INDEX NO. E2022002698
NYSCEF DOC. NO. 851                                                                           RECEIVED NYSCEF: 04/12/2024
               MONROE COUNTY CLERK’S OFFICE                            THIS IS NOT A BILL. THIS IS YOUR RECEIPT.


                                                                Receipt # 3824690

                                                                Book    Page    CIVIL

    Return To:                                                  No. Pages: 10
    CHRISTOPHER S. KOZAK
    One Gateway Center, 4th Floor                               Instrument: MISCELLANEOUS DOCUMENT
    Newark, NJ 07102
                                                                Control #:         202404151501
                                                                Index #:           E2022002698

                                                                Date: 04/15/2024

    JOHNSON-BRETT, LINDA                                        Time: 4:23:08 PM
    BRETT, BRADFORD




     A.O. SMITH CORPORATION.,
     AVON PRODUCTS, INC.,
     BIRD INCORPORATED,
     BRENNTAG NORTH AMERICA, INC., individually and as
    successor in interest to MINERAL PIGMENT SOLUTIONS,
    INC., as successor in interest to WHITTAKER, CLARK &
    DANIELS, INC.,
     BURNHAM, LLC, individually and as successor to BURNHAM
    CORPORATION,
    Total Fees Paid:                                    $0.00

                                                                Employee:




    State of New York

    MONROE COUNTY CLERK’S OFFICE
    WARNING – THIS SHEET CONSTITUTES THE CLERKS
    ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
    SECTION 319 OF THE REAL PROPERTY LAW OF THE
    STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

                          JAMIE ROMEO

                    MONROE COUNTY CLERK




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NYSCEF DOC. NO. 851                                                                                 RECEIVED NYSCEF: 04/12/2024



                                         L ANDMAN C ORSI B ALL AINE & F OR D P.C.
                                                       A NEW YORK PROFESSIONAL CORPORATION

                                                               ATTORNEYS AT LAW
      120 Broadway                                                                                       One Penn Center
      13th Floor                                             ONE GATEWAY CENTER                          1617 JFK Boulevard, Suite 955
      New York, New York 10271                                     22ND FLOOR                            Philadelphia, PA 19103
      Tel: (212) 238-4800                                                                                Tel: (215) 561-8540
                                                                NEWARK, NJ 07102
      300 Delaware Avenue                                     TELEPHONE (973) 623-2700
      Suite 210
                                                              FACSIMILE (973) 623-4496
      Wilmington, DE 19801
      Tel: (302) 514-6901                                         www.lcbf.com




                                                               April 12, 2024


           Via NYSCEF

           Hon. Erin P. Gall, J.S.C.
           Oneida County Supreme Court
           200 Elizabeth Street
           Utica, NY 13501

                        Re: Linda Johnson-Brett and Bradford Johnson-Brett v. A.O. Smith
                            Corporation, et al.,
                            Supreme Court of New York, Monroe County - Index No. E2022002698
                            Letter Application - Motions in Limine

           Dear Justice Gall:

                    This office represents Defendant Avon Products, Inc. (“Avon”) in the above-referenced
           matter. Avon hereby makes the following Motions in limine based on the information available to
           it at the time of filing. Avon reserves the right move for other in limine relief by oral application
           before and during the Trial of this matter, and hereby joins any non-adverse Motions filed by other
           defendants.

                                                    PRELIMINARY STATEMENT

                 Avon Products, Inc. (“Avon”) submits this Memorandum of Law in support of its Omnibus
           Motions in limine to:

                             xxiii)        Preclude Plaintiffs and their experts from conclusory
                                           assertions that suggest it is either not necessary or impossible
                                           to determine the level of asbestos exposure sufficient to
                                           cause pleural mesothelioma;

                                 xxiv)     Preclude Plaintiffs or their experts from suggesting or
                                           implying that Mrs. Johnson-Brett could have been


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          April 12, 2024
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                                     individually  susceptible         to    developing       pleural
                                     mesothelioma;

                          xxv)       Preclude any attorney, fact witness, or expert witness from
                                     showing at trial certain medical and scientific articles,
                                     treatises, periodicals, pamphlets and slides;

                         xxvi)       Preclude Exorbitant Requests by Plaintiffs’ Counsel for pain
                                     and suffering in violation of CPLR §5501(c); and

                        xxvii)       Preclude Plaintiffs from prematurely introducing legal
                                     concepts of “reckless disregard” or “punitive,” until, if at all,
                                     the end of Trial, after rulings on those issues.

                Avon also submits this Memorandum of Law in supplementation of Avon’s pending
          Motions in limine to:

                                  Preclude any evidence post-dating Plaintiff’s alleged last use of
                                  Avon products (supplementing Avon’s pending motion in limine
                                  ‘i’);

                                 Preclude Plaintiffs from referencing and/or introducing
                                  evidence regarding other defects or diseases other than
                                  mesothelioma (lung cancer, asbestosis) (Supplementing Avon’s
                                  pending motion in limine ‘vii’);

                                 Preclude Plaintiffs from offering evidence about the “public
                                  knowledge" of asbestos – including improperly arguing through
                                  their experts or otherwise that a defendant is held to the standard
                                  of all that was knowable or publicly available at the times in
                                  question (supplementing Avon’s pending motion in limine
                                  ‘xvii’);

                         II.        STATEMENT OF FACTS AS TO MOTIONS IN LIMINE

                 Plaintiff Linda Johnson-Brett (“Mrs. Johnson-Brett”) was diagnosed with pleural
          mesothelioma in February of 2022. Because there is no physical evidence suggesting a cause of
          her mesothelioma, Plaintiffs’ causation theory is that a cumulative dose of asbestos caused her
          condition. (See Exh. C, 3/13/22 Report by Dr. David Zhang, at p. 31). Consistent with that theory,
          Mrs. Johnson-Brett testified that she was exposed to many different talcum powder products
          alleged to have contained asbestos, and brought suit against various manufacturers who made
          talcum powder products she claimed to have encountered during her lifetime.




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          April 12, 2024
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                  Among the talcum powder products claimed to have been used by Mrs. Johnson-Brett were
          Avon’s Skin so Soft, Hawaiian White Ginger, Unforgettable, and Bird of Paradise (collectively
          “Avon’s products”) from approximately 1969 to the early-1980s. At her deposition, Mrs. Johnson-
          Brett testified that she shook this powder in her boots to keep bugs away while riding her horse.
          (See Exh. A, Mrs. Johnson-Brett’s Dep. at 622-24).

                        III.   ARGUMENTS ON ADDITIONAL MOTION’S IN LIMINE

            xxiii)    Preclude Plaintiffs and Their Experts from Conclusory Assertions That Suggest
                      it is Either Not Necessary or Impossible to Determine the Level of Asbestos
                      Exposure Sufficient to Cause Pleural Mesothelioma

                  It is anticipated that Plaintiffs or their experts will attempt to argue or claim that Mrs.
          Johnson-Brett’s cancer was caused by a cumulative exposure to asbestos, but that the amount of the
          cumulative exposure need not or cannot be determined. This often is done by telling the jury that
          mesothelioma is a “sentinel health event of asbestos exposure,” a “signal tumor indicating
          asbestos exposure,” it is a “signature disease indicating asbestos exposure,” that “virtually all cases
          of mesothelioma are related to asbestos exposure,” or there is “no safe level of asbestos exposure,”
          and other similar phrases used to persuade a jury that it is not necessary or impossible to quantify or
          qualify the amount of exposure sufficient to cause cancer.

                  These types of conclusory assertions of a causation threshold have been specifically rejected
          by the Court of Appeals as they are legally insufficient. (See Nemeth v. Brenntag N. America, 38
          N.Y.3d 336, 345 (2022)). In fact, the Court of Appeals recently reiterated that while “‘it may be
          difficult, if not impossible, to quantify a plaintiff’s past exposure’ to a toxin (citing Sean R. v. BMW
          of North America, 26 N.Y.3d 801, 812 at [2016]), our standard itself is not ‘impossible’ for plaintiffs
          to meet.” Id. The Court has repeatedly explained that the plaintiff need not demonstrate a precise
          amount of exposure, but that he / she has a burden to establish that there has been a sufficient
          exposure to a substance to have caused the claimed adverse health effect. (Id. at 342, 347, citing
          Parker v. Mobil Oil, 7 N.Y.3d 434 [2006], Cornell v. 360 W.51st St. Realty, LLC, 22 N.Y.3d 762
          [2014], Sean R., 26 N.Y.3d 801 [2016]).

                   And, while a precise amount is not needed, the Court will not accept the other end of the
          spectrum, i.e., evidence or claims of amounts that are vague, non-specific (such as merely saying
          “increased risk”), or err on the side of caution (but, which are not probative of the legal causation
          issue). Indeed, the Court of Appeals has repeatedly rejected expert testimony as being “insufficient
          to prove causation” when the exposure is described as “excessive” or “far more” than others, as
          well as testimony that merely links a toxin to a disease, and testimony that presumes sufficient
          level of exposure by “working backwards from reported symptoms to divine an otherwise
          unknown concentration” of a toxin. (Id. at *3, citing Parker and Sean R.). As to the last example -
          working backwards with conclusory assertions - the Nemeth Court specifically addressed as being
          equally insufficient statements which have a similar effect (i.e., assume causation, find exposure,
          and conclude it “must have been” enough). In that case, the Court of Appeals explained that,



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                                      . . . Dr. Moline . . . described it as a sentinel health event of
                              asbestos exposure, and that virtually all cases of mesothelioma are
                              related to asbestos exposure” (citation omitted). Yet this is no
                              different than conclusory assertions of causation that we have held
                              were insufficient to meet the Parker requirements ([citing] Sean R.,
                              26 N.Y.3d at 810; Cornell, 22 N.Y.3d at 784; Parker, 7 N.Y.3d at
                              450).

                  Regardless of the toxin, e.g., benzene, mold, and now asbestos, the Court of Appeals has
          held steadfast to its requirement that plaintiffs put forth scientific expressions of exposure levels
          and thresholds sufficient to cause the particular adverse health effects, and not merely offer
          surrogate conclusory assertions that are meant to confuse and mislead jurors. See Discussion,
          supra.

                  For these reasons, Avon asks the Court to preclude Plaintiffs and their experts from
          conclusory assertions that suggest that it is either not necessary or impossible to determine the
          level of asbestos exposure sufficient to cause pleural mesothelioma. The following are specific
          phrases that are conclusory and legally insufficient to establish or support causation:
                           “sentinel health event”
                           “signal tumor”
                           “signature disease”
                           “virtually all cases are related to asbestos”
                           “no safe level”
                           “increased risk”

                  And, similar vague, conclusory statements that are designed to mislead and confuse the
          jurors as to the ultimate causation issue.

            xxiv)     Preclude Plaintiffs or their experts from suggesting or implying that Mrs.
                      Johnson-Brett could have been “individually susceptible” to developing pleural
                      mesothelioma

                  In his March 13, 2023, Report, Plaintiffs’ causation expert David Zhang, M.D., wrote “the
          pathogenic BAP1 mutations make an individual more susceptible (increased risk) for cancer
          including mesothelioma.” (See Exh. C at p. 17). But, importantly, Dr. Zhang never stated that he
          reviewed medical records showing a gene mutation in Mrs. Johnson-Brett, nor did he conclude
          that Mrs. Johnson-Brett had an increased susceptibility develop mesothelioma due to her alleged
          asbestos exposure. Despite this Dr. Zhang (and / or other experts in this case) is expected to
          attempt to explain what “individual susceptibility” is, but will not tie it to any fact in evidence in
          this case. Thus, because there is no connection between the concept of “individual susceptibility”
          and Mrs. Johnson-Brett, the only purpose for such testimony would be to confuse and mislead the
          jury. As such, the testimony is both not relevant or probative of any issue in this case, and would
          be designed to confuse and mislead the jury in violation of Rules 4.01, 4.06, and 7.01 of the N.Y.


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          Guide to Evidence. For these reasons, we ask the Court to preclude Plaintiffs or their experts from
          suggesting or implying that Mrs. Johnson-Brett could have been “individually susceptible” to
          developing pleural mesothelioma.

             xxv)     Preclude Any Attorney, Fact Witness, or Expert Witness from Showing at Trial
                      Certain Medical and Scientific Articles, Treatises, Periodicals, Pamphlets and
                      Slides

                  Avon respectfully requests that the Court preclude any attorney, fact witness or expert
          witness from referencing or showing at Trial any hearsay medical or scientific articles, treatises,
          periodical, and pamphlets. As stated in Kirker v. Nicolla, 256 A.D.2d 865, 867 [3d Dep’t 1998],
          “a scientific book or report must be excluded as hearsay if it is offered as proof of the facts
          ascertained therein.” The Court in Ciaccio v. Housman, 97 Misc. 2d 367, 368 [N.Y. Sup. Ct.,
          Queens Co. 1978] likewise held that medical treatises are not admissible as substantive affirmative
          evidence of the facts contained therein. (See also People v. Feldman, 299 N.Y. 153, 168 [1949];
          Egan v. The Dry Dock, East Broadway and Battery R.R. Company, 12 A.D. 556, 571, 42 N.Y.S.
          188 [1st Dep’t 1896]). To the extent Plaintiffs purport to proffer medical and scientific articles for
          any other ostensible purpose, such as to establish “notice” (i.e., that Avon knew or should have
          known about asbestos-related hazards), they should nonetheless be precluded because it is hearsay
          and there will be no admissible reason for its use against Avon at Trial. Indeed, without any
          connection to Avon, such hearsay lacks probative value and any use would be far outweighed by
          the prejudice posed by the risk that jurors would improperly consider it as something Avon either
          knew or should have known.

                 Similarly, Avon objects to the use of slide decks (e.g., PowerPoint, Google Slides,
          Keynote, etc.) with any Trial witnesses. Such materials necessarily include hearsay, are leading,
          and are otherwise improper to use during the Direct Examination of Trial witnesses.

            xxvi)     Preclude Exorbitant Requests by Plaintiffs’ Counsel for Pain & Suffering in
                      violation of CPLR §5501(c)

                  Avon respectfully requests that the Court preclude Plaintiffs from using anchoring abuse
          tactics to precondition the jury in Voir Dire, Opening Statements, and/or Summations by
          suggesting this case should receive a grossly excessive verdict in violation of CPLR §5501(c). For
          example, in cases like these, plaintiffs’ attorneys regularly demand more than $5 million.

                  Although CPLR §4016(b) permits attorneys the express right to request “a specific dollar
          amount” for pain and suffering, CPLR §5501(c) requires damages awards to stay within the bounds
          of “reasonable compensation,” and establishes a system whereby parties on the receiving end of
          an unreasonable verdict may seek review of the verdict through a comparable case analysis. CPLR
          §5501(c) was specifically enacted to stop the upward spiral of awards and to normalize awards
          within a reasonable compensation range with the intent that simplified valuation of injuries would




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          lead to less uncertainty and greater fairness to similarly-situated plaintiffs and defendants. See
          Consorti v. Armstrong World Industries, 72 F.3d 1003 [2d Cir. 1995].

                  In Consorti, 72 F.3d 1003, the Second Circuit expressed concerns regarding anchoring.
          The plaintiff asked for and received a grossly excessive $12 million pain and suffering verdict that
          was reduced on Appeal to $3.5 million pursuant to CPLR §5501(c). The Court observed its
          discomfort with the fact that “[s]uch suggestions anchor the jurors’ expectations of a fair award at
          a place set by counsel, rather than by evidence.” Id. at 1016. “A jury is likely to infer that counsel’s
          choice of a particular number is backed by some authority or legal precedent. Specific proposals
          have a real potential to sway the jury unduly.” Id.

           xxvii)       Preclude Plaintiffs from Prematurely Introducing Legal Concepts of “Reckless
                        Disregard” or “Punitive,” Until, if at all, the End of Trial – After Rulings on those
                        Issues

                  To prevent another anchoring abuse, Avon respectfully requests that Plaintiffs be precluded
          from introducing legal concepts of “reckless disregard” and “punitive,” or any similar words
          suggesting such conduct in Voir Dire and Opening Statements, as these statements are without
          evidentiary support (or, at a minimum, represent hotly contested issues in this case) and, thus,
          would be highly prejudicial to be mentioned in front of the jury before the evidence is presented
          to the jury.

                   There will be no evidence in this matter that Avon’s conduct was intentional, malicious,
          wanton, or that it acted with reckless disregard in an effort to harm the consumers of its products.
          In fact, the evidence will prove the opposite. To prove reckless disregard, Plaintiffs must provide
          minimum evidence of an intentional act done with conscious indifference and in disregard of a
          “known or obvious risk” that was so great as to make it “highly probable” that harm would follow.
          (See Maltese v. Westinghouse, 89 N.Y.2d 955 [1997]). There will be no proof that Avon intended
          or purposefully sought to harm the consumers of its products. Therefore, references to words
          suggesting such intentional, malicious, wanton, reckless, punitive, or similar words relating to
          Avon’s conduct would be improper advocacy and highly prejudicial.

                  IV.         ARGUMENTS SUPPLEMENTING PENDING MOTION’S IN LIMINE

                  Supplementing Avon’s motion in limine ‘i’ to preclude any post-early-1980s evidence
                   as Against Avon precluding any evidence post-dating Plaintiff’s alleged last use of
                   Avon products

                   Plaintiffs claim that various products were used from 1966 through 2019 and have sued
          various manufacturers of some of those products under principles of negligence and strict products
          liability. (See generally, Exh. B, Plaintiff’s Third Amended Complaint, dated December 27, 2023).
          Regardless of which causes of action Plaintiffs pursue, each defendant’s will be judged by conduct
          occurring no later than the time the product left the hands of that defendant or that date of the last
          alleged product use. For example, if proceeding on a negligence claim (e.g., negligent failure to


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          warn), under NY PJI 2:12 Common Law Negligence – Foreseeability, the law requires evidence of
          knowledge at the time of the conduct that an injury was probable, not merely possible. (See also
          NY PJI 2:12, Cmt B. And, if pursuing a design defect or failure to warn claim under strict products
          liability pursuant to NY PJI 2:120, the law requires that conduct be judged “at the time the product
          was manufactured.” (See also PJI 2:120.2, “at the time the product left the hands of the
          defendant”)).

                  In this case, it is expected that Plaintiffs will attempt to introduce post-early-1980s evidence
          relating to scientific developments, knowledge, or information that was created, written, or published
          after 1980. As noted above, Mrs. Johnson-Brett testified that she did not use Avon’s products after
          the early-1980s. (See Exh. A at 657).

                  Thus, any such knowledge, information, etc. that was developed or published after the early-
          1980s would have absolutely no probative value to the knowledge or conduct of Avon in or before
          the early-1980s. The only purpose of such evidence as to Avon would be to confuse and mislead the
          jury that somehow Avon could have or should have known about any such post-early-1980s
          information, and somehow have been guided by it. Accordingly, because there is no fact of
          consequence to the determination of Avon’s alleged negligence or strict liability that would come
          of evidence after the early-1980s, any such evidence as against Avon must be precluded. See NY
          Rule of Evid. 4.01. Moreover, there would be great prejudice to Avon if the jury is permitted to
          consider any such evidence as Avon could not have known or been guided by evidence that did
          not exist during the time from in which its conduct is being judged. See NY Rule of Evid. 4.06 (1
          – create undue prejudice), (2 – confuse the issues and mislead the jury), (3 – unnecessarily and
          improperly prolong the proceed as to Avon).

                 Supplementing Avon’s motion in limine ‘vii’ to preclude Plaintiffs from referencing
                  and/or introducing evidence regarding other defects or diseases other than
                  mesothelioma

                  Evidence is inadmissible if it is not relevant to the claims at issue. People v. Davis, 43
          N.Y.2d 17, 27 (1977) (only relevant evidence is admissible, and relevant means “evidence having
          a tendency to make the existence of any fact that is of consequence to the determination of the
          action more probable or less probable than it would be without the evidence.”). Avon anticipates
          that Plaintiffs may attempt to introduce evidence that “asbestos” (as opposed to “asbestos as
          contained in” a particular product) has been associated with asbestosis, lung cancer or other
          diseases not at issue here. This type of evidence does not prove that Avon’s products have ever
          been known to cause pleural mesothelioma or that it did so here, which Avon denies. Nor can
          Plaintiffs rely on evidence of other diseases to show that Avon was somehow on notice of an
          alleged design defect in its product, generally.

                 Should the Court determine that evidence related to diseases Mrs. Johnson-Brett does not
          have has some relevance to Avon, this evidence should nevertheless be excluded because its
          prejudicial effect outweighs any probative value. “Even if evidence is relevant, the probative value
          must outweigh the prejudice to the other side.” Matter of State v. Mercado, 50 Misc 3d 512, 516


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          (Sup. Ct. 2015). The trial court has discretion to preclude “technically relevant” evidence “if its
          probative value is substantially outweighed by the danger that it will unfairly prejudice the other
          side or mislead the jury.” People v. Scarola, 71 N.Y.2d 769, 777, 525 N.E.2d 728, 530 N.Y.S.2d
          83 (1988). See also Guide to N.Y. Evidence 4.01, 7.01.

                   Here, evidence regarding diseases other than pleural mesothelioma should be excluded
          because it will take a considerable amount of time for Plaintiffs to explain the substance and
          relevance of documents and testimony that relate to diseases that Mrs. Johnson-Brett does not
          suffer from, and for Avon to dispel such claims to prevent the jury from being misled. Evidence
          that is cumulative or will consume an undue amount of time can and should be excluded by the
          trial court. People v. Davis, 43 N.Y.2d 17, 27 (1997) (“the probative value of the testimony could
          be outweighed by the dangers that the main issue would be obscured, by prolongation of trail and
          the solid possible of undue prejudice”); see also NY Guide to Evidence 4.06.

                 Supplementing Avon’s pending motion in limine to preclude Plaintiffs from offering
                  evidence about the “public knowledge" of asbestos – including improperly arguing
                  through their experts or otherwise that a defendant is held to the standard of all that
                  was knowable or publicly available at the times in question

                  Avon moves to preclude Plaintiffs, their counsel, and witnesses from arguing or contending
          that all information about asbestos hazards and disease was publicly available and, therefore,
          knowable. “Knowable” is not a legal standard. At Trial, the instructions to the jury on negligence
          and/or strict liability will reference what the defendants knew or should have known. In particular,


              a) For negligence, the standard of care is what a reasonably prudent company would
                 have done under the same circumstances at the time. (See New York Pattern Jury
                 Instruction (NY PJI) 2:10 (generally), 2:15 (special knowledge); 2:16 (customary
                 business practices)).
              b) For strict liability, knowledge is still a required component, for example, “duty to
                 use reasonable care to give an adequate warning of any danger known to it or
                 which in the use of reasonable care it should have known . . . [and] Reasonable
                 care means that degree of care which a reasonably prudent person would use under
                 the same circumstances.” (See PJI 2:120) (emphasis added).

          Under either theory, ‘knew or should have known’ is the standard of care. “Knowable” is not a
          legal concept in New York state. In fact, the common definition of “knowable” means capable of
          being known. “Knowable” does not mean known or what should have been known. There is no
          case law supporting the extension of liability for knowledge that was merely capable of being
          known or publicly available, but not actually known by a party or which one can argue should
          have been known by a “reasonably prudent company” in the same or similar circumstances. For
          these reasons, we ask the Court to preclude Plaintiffs’ counsel and their witnesses from using the
          terms “knowable” or “publicly available” as a standard of care applicable to Avon.



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 202404151501                                                                                    IndexNO.
                                                                                               INDEX  #: E2022002698
                                                                                                           E2022002698
FILED:     MONROE COUNTY CLERK 04/12/2024 06:41 PM
NYSCEF DOC. NO. 851                                                                     RECEIVED NYSCEF: 04/12/2024

    LANDMAN CORSI BALLAINE & FORD P.C.

          April 12, 2024
          Page 9


                                               V.      CONCLUSION

                  Accordingly, for the reasons above, it is respectfully requested that Avon’s Motions in
          limine be granted.

                 Avon specifically joins in all other defendants’ in limine applications even if those parties
          have been dismissed or settled.

                 Finally, Avon reserves the right and intends to move for other in limine relief by oral
          application before and during the Trial of this case.


          Date: April 12, 2024

                                                        LANDMAN CORSI BALLAINE & FORD, P.C.


                                                                                      _
                                                        Christopher S. Kozak, Esq.
                                                        One Gateway Center, 22nd Floor
                                                        Newark, New Jersey 07102
                                                        (973) 623-2700

                                                             - and -

                                                        120 Broadway, 13th Floor
                                                        New York, New York 10271
                                                        T: (212) 238-4800
                                                        E: ckozak@lcbf.com
                                                        Attorneys for Defendant
                                                        Avon Products, Inc.



          Enc.(Exhibits)
          Cc: All Counsel of Record (via NYSCEF with Exhibits)




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