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NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------- X
SINAR SEEN, Individually and as Temporary
Administrator of the Estate of MUNIR SEEN, Deceased, :
: Index No. 190225/ 2018
:
Plaintiff,
-against- :
84 LUMBAR COMPANY, et al., :
:
Defendants. :
:
__----. -----------------------X
AFFIRMATION OF OLIVIA P. KELLY IN OPPOSITION TO DEFENDANT KAISER
GYPSUM'S MOTION FOR THE REVERSAL OF SPECIAL MASTER OLSEN'S
RULING DENYING KAISER GYPSUM'S REQUEST TO REMOVE PLAINTIFF'S
ACTION TO A SUBSEQUENT TRIAL CLUSTER
OLIVIA P. KELLY, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1. I am an associate with the law firm Simmons Hanly Conroy, counsel for Plaintiff
Sinar Seen, Individually and as the Temporary Administrator of the Estate of Munir Seen, in the
above-captioned action. As such, I am fully familiar with the facts and circumstances surrounding
the action herein.
2. This affirmation is respectfully submitted in opposition to Defendant Kaiser
Gypsum Company, Inc 's ("Kaiser") motion for the reversal of New York City Asbestos Litigation
("NYCAL") Special Master's Order denying its request that Plaintiff's action be automatically
removed from the April 2019 trialcluster and be moved to the next succeeding Accelerated Trial
Cluster pursuant to NYCAL Case Management Order ("CMO") §VII B.
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3. Just as NYCAL Coordinating Justice Manuel Mendez denied the motion Kaiser
filed in May 2019, seeking to sever the third-party action brought by Defendant/Third-Party
Plaintiff IPA Systems, Inc. ("IPA"), this Court must deny the instant motion for, in effect, the same
relief. For over eight months, Kaiser has made every possible effort to avoid defending itself in
this litigation along with the other defendants. Kaiser's contentions that itshould not be subject
to suit in this case and that claims should not be resolved along with the other defendants have
been repeatedly denied both by the NYCAL Special Master Shelley Rossoff Olsen and Justice
Mendez. Kaiser has been aware of,and preparing a defense to (or, should have been), Plaintiff's
claims since January 2019. Ithas obtained all necessary and relevant discovery and had a full and
fair to depose Mr. Seen in June 2019 (with the benefit of all information its co-
opportunity
defendants had uncovered throughout discovery). Under the circumstances, Kaiser's motion can
be viewed as nothing more than either an improper second attempt to sever the litigation of the
claims against itfrom those against the other defendants or a meritless new request to delay trial
unnecessarily. In either case, Kaiser's motion must be denied.
RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND
4. From about 1967 through 1980, Munir Seen ("Mr. Seen") worked as drywaller,
laborer, and carpenter, in which capacity he was exposed to numerous asbestos-containing
products, including Kaiser's joint compound. See Deposition Transcript of Mr. Seen, dated Sept.
5, 2018, attached hereto as Exhibit 1, at pp. 67, 247-248, 265, 285-287. On February 16, 2016,
Mr. Seen was diagnosed with malignant mesothelioma. See Pathology report dated Feb. 16, 2016,
attached hereto as Exhibit 2. He died of this disease on July 2, 2019, at the age of 69. See Mr.
Seen's death certificate, attached hereto as Exhibit 3.
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5. Mr. Seen commenced the instant action by filing a summons and complaint on
August 10, 2018. See Initial summons and complaint, attached hereto as Exhibit 4. Amended
complaints naming additional defendants were filed on August 30, 2018, and September 11, 2019.
See First and Second Amended Complaints, attached hereto as Exhibit 5.
6. Mr. Seen did not name Kaiser in the initial complaint, nor in the first or second
amended complaints, because Kaiser was then protected by the automatic stay provisions of the
U.S. Bankruptcy Code.
7. Kaiser filed for bankruptcy on September 30, 2016 in the United States Bankruptcy
Court for the Western District of North Carolina. See Kaiser's Petition for Non-
Voluntary
Individuals Filing for Bankruptcy, attached hereto as Exhibit 6. Pursuant to section 362 of the
U.S. Bankruptcy Code, an automatic stay was imposed from and after the petition date of Kaiser's
bankruptcy on allactions against Kaiser.See Notice of Suggestion of Pendency of Bankruptcy and
Automatic Stay of Proceedings, dated Oct. 3, 2016, attached hereto as Exhibit 7. The stay
protecting Kaiser from allactions, including any that could have been commenced by Mr. Seen at
the time he initiated this action, remained in effect for more than two years.
8. On August 9, 2018, the Bankruptcy Court issued an order setting forth the terms by
which the stay as to certain personal injury claims against Kaiser would be lifted. See "Stay Lift
Order," Plaintiffs'
attached hereto as Exhibit 8. Importantly, as explained in detail in opposition
to Kaiser's motion to dismiss on the ground that the statute of limitations has expired (see
Plaintiffs'
Memorandum of Law dated Sept. 11, 2019, attached hereto as Exhibit 9), the liftof the
stay was limited, and itdid not take effect immediately. As is most relevant here, the limited lift
Claimant,"
of the stay could not take effect until an "Asbestos Personal Injury such as Mr. Seen,
release"
"executed one of the forms of acknowledgement and attached to the Bankruptcy Court's
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order. See Ex. 8. Even ifMr. Seen filed an acknowledgement and release form as soon as the
Bankruptcy Court's Stay Lift Order was issued on August 9, 2018, the stay would not be deemed
lifted until October 29, 2018. The Stay Lift Order expressly provided that the "date on which the
automatic stay shall be deemed lifted with respect to a particular Asbestos Personal Injury
Clainiant shall be the later of (a) the date on which the claimant's executed Acknowledgment and
Debtors' Order],"
Release is sent by email to counsel and (b) the Effective date [of the Stay Lift
of October 29, 2019. Id, at 3-4.
9. On October 29, 2018, in accordance with the terms of the Stay Lift Order, Plaintiff's
counsel sent an acknowledgement and release on behalf of their clients who then had viable
asbestos-related claims against Kaiser, including Mr. Seen. See Acknowledgment and Release
filed by Simmons Hanly Conroy, attached hereto as Exhibit 10. As per Paragraph 4 of the Stay
Lift Order, the stay under which Kaiser had been protected from claims by Mr. Seen was
effectively lifted on October 29, 2018, more than two years after Kaiser voluntarily filed itspetition
for bankruptcy, and more than two years after Mr. Seen had commenced this action. See Ex. 8, at
4.
10. On January 30, 2019, Defendant IPA Systems, Inc. ("IPA") applied to the Special
Master to file an untimely Third-Party Complaint against Kaiser. See IPA's email application to
11.1
Special Master, attached hereto as Exhibit IPA asserted that it had just learned that Kaiser
was no longer protected a complete in Court and that Kaiser had re-
by stay Bankruptcy recently
entered litigation in another NYCAL case. Id Plaintiff did not take a position with respect to
IPA's application. On February 9, 2019, after hearing from counsel for both IPA and Kaiser, the
As a member ofNYCAL's April 2019 In Extremis Trial Cluster, the dedline to filea third-party complaint
in thismatter was January 10, 2019. See Ex. 1L
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Special Master granted IPA's request to file an untimely Third-Party Complaint. See email
correspondence between counsel for IPA and Kaiser Gypsum and Special Master's decision
regarding IPA's filing of an untimely third-party complaint, attached hereto as Exhibit 12.
11. On February 19, 2019, Kaiser moved to vacate the Special Master's ruling. See
Kaiser's order to show cause dated Feb. 19, 2019, attached hereto as Exhibit 13. IPA opposed
Kaiser's motion and cross-moved for permission to file a third-party complaint. See Affirmation
of Neiholas P. Iannuzzi, dated March 28, 2019, attached hereto as Exhibit 14. In itsmotion papers,
IPA's counsel asserted that, because Mr. Seen repeatedly identified IPA and Kaiser "in the same
breath as joint compound manufacturers, which he used throughout his career in unidentified
locations," interests."
IPA and Kaiser, "for the purpose of Discovery, have similar Id., at 13. IPA
time"
asserted that, even though there was still"ample for Kaiser to conduct itsown discovery (in
the originally-designated April 2019 Trial Cluster), given the significant overlap between IPA and
all,"
Kaiser's defenses in this case, "most, if not expert reports that IPA had procured could be
joined by Kaiser. Id., at 12-13.
12. In addition, at oral argument, IPA's counsel promised to provide Kaiser with all
necessary discovery that had been exchanged between the parties thus far in the case so that Kaiser
would be as well-equipped as IPA to defend itself against Plaintiff's claims. See Affirmation of
Mark L. dated attached hereto with Kaiser's motion to sever the third-
Wasef, May 30, 2019, along
party complaint, as Exhibit 15, at 3.
13. On April 16, 2016, this Court denied Kaiser's motion to vacate the Special Master's
ruling granting IPA permission to file a third-party complaint and granted IPA's cross motion for
permission to filea third-party complaint. See Decision and Order by Justice Mendez, dated April
16, 2019, attached hereto as Exhibit 16.
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14. On April 23, 2019, IPA served a third-party complaint against Kaiser asserting
causes of action for contribution and indemnification. See IPA's Third-Party Complaint dated
April 23, 2019, attached hereto as Exhibit 17. IPA promptly shared allthe discovery itobtained
in this action with Kaiser such that Kaiser was able to defend itselffrom allegations that itsproduct
caused Mr. Seen to unnecessarily develop malignant mesothelioma. See Affirmation of Nicholas
P. Iannuzzi, dated June 7, 2019, attached hereto as Exhibit 18, at 4, 6-7.
15. On April 25, 2019, Special Master Olsen conducted a trial readiness conference
with counsel for Kaiser in attendance, at which time it was agreed that Mr. Seen would be
presented for a limited deposition to testify as to certain new issues and to allow for Kaiser to
conduct a cross-examination. See Plaintiff's Amended Notice of Deposition, attached hereto as
Exhibit 19; Kaiser's Cross Notice of Deposition, attached hereto as Exhibit 20.
16. On May 30, 2019, Kaiser moved to sever IPA's third-party action from this main
action. See Kaiser's Order to Show Cause dated May 30, 2019, attached as Ex. 15. In that motion,
Kaiser asserted that, in defense of allegations that Kaiser's joint compound was a substantial
contributing factor in the development of Mr. Seen's disease, Kaiser will need to proffer various
experts at trial, including an industrial hygienist, toxicologist, epidemiologist, pathologist and/or
pulmonologist Id., at 4. Kaiser asserted that itplanned to present evidence demonstrating that its
joint compound did not proximately cause Plaintiff's claimed damages, but that it needed
additional time to prepare such evidence. Id; See Memorandum of Law Submitted in Support of
Kaiser's Motion to Sever Third-Party Action, dated May 29, 2019, included with other motion
papers as Ex. 15, at 2-3, 5-6.
17. IPA opposed Kaiser's motion to sever asserting that Kaiser did not require
additional time to prepare for trial because, as of June 21, 2019, there was no trialdate in this
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matter and, given the Court's schedule and the NYCAL calendar, there likely would not be a trial
date until at least October 2019. See Affirmation of Nicholass P. Iannuzzi, dated June 21, 2019,
attached hereto as Exhibit 21. IPA further noted that, in any event, Kaiser had been in possession
of alldiscovery for some time and should have already begun its trial preparation. Jd. Indeed,
Kaiser emphasized for the Court that Kaiser had been on notice of the allegations in this matter
(and should have begun preparing a defense) since January 2019. Id. To the extent there was any
remaining discovery, IPA explained that Kaiser was on equal footing with all other defendants. Id.
18. On June 11, 2019, Mr. Seen presented for a limited deposition by Kaiser. See
Deposition Transcript of Mr. Seen dated June 11, 2019, attached hereto as Exhibit 22. Kaiser
cross-examined Mr. Seen as to issues they perceived as relevant to their defense from discovery
exchanged between the parties throughout this litigation. Id., pp. 409-412, 415-443, 447-460; Ex.
21, at 6-7. As noted by IPA, Kaiser had the opportunity to fully depose Mr. Seen with the benefit
of information IPA had obtained through a thorough investigation of all issues and facts in this
matter. Ex. 21, at 6.
19. Plaintiff filed the Note of Issue on June 30, 2019. See Plaintiff's Note of Issue,
dated June 30, 2019, attached hereto as Exhibit 23.
20. On July 3, 2019, this Court denied Kaiser's motion to sever the third-party claims
from the claims asserted by Plaintiff in the main action. See Decision and Order of Justice Mendez,
attached hereto as Exhibit 24. In that decision and order, Justice Mendez rejected Kaiser's claims
that itwas brought into this action too late to defend itself from claims that itsasbestos-
adequately
containing joint compound caused Mr. Seen's disease. Justice Mendez determined that, because
Kaiser conducted itsown deposition of Mr. Seen and had an ability to review allexisting discovery
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in the action, itcould defend itselfjust as well as the other defendants Plaintiff claimed was
responsible for causing his injuries. Id
21. On July 16, 2019, Plaintiff's counsel filed a third amended complaint to reflect that
Mr. Seen had died and that his son, Sinar Seen, individually, and as the temporary administrator
of Mr. Seen's estate, was carrying on his claims. See Third Amended Complaint, attached hereto
as Exhibit 25.
22. On July 31, 2019, Plaintiff amended the complaint once more in order to officially
identify that Kaiser, already an active player in this litigation, as a direct defendant. See Fourth
Amended Complaint, attached hereto as Exhibit 26.
A_RGUMEN_T
L Kaiser's Motion Must Be Denied Because Kaiser Has Had Ample Time to Prepare
a Defense to Plaintiff's Claims and Justice Mendez Has Already Refused to Grant
Kaiser More Time to Prepare for Trial
23. Kaiser moves before this Court arguing that this case must be moved from its
current trialcluster (the April 2019 cluster) into the next cluster (the October 2019 cluster) because
Plaintiff amended the complaint identifying Kaiser as a direct defendant in this case after the
deadline set forth in the CMO. See CMO § VII.B. Despite its claim to the contrary, this motion
is, in effect, a motion to renew and/or reargue Justice Mendez's denial of Kaiser's previous
application to sever the claims against it. Indeed, although advanced under a provision of the
NYCAL CMO rather than the CPLR, the relief Kaiser seeks is precisely the same as it sought in
its 2019 motion - a of trial. Like itsmotion to Kaiser claims in the instant motion
May delay sever,
that itneeds more time to properly prepare itscase. See Affirmation of Sarah Schaeffer-Roth, dated
Sept. 4, 2019, at 4. This contention isjust as unpersuasive now as it was then.
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24. For essentially the same reasons Justice Mendez denied Kaiser's motion to sever,
this Court should deny the instant motion. Although Kaiser was the last defendant to be brought
into this action and Plaintiff named Kaiser after the fonnal deadline set forth in the CMO for cases
in the April 2019 trialcluster, the claims against Kaiser were brought within the applicable statute
period,2
of limitations the claims are valid, and because, as of October 2, 2019 a trialdate has still
not been assigned, Kaiser has more than enough time to prepare for trial without the Court
transferring this case out of itscurrent trialcluster.
25. Insofar as Kaiser has been on notice of Plaintiff's claims for at least eight (8)
months and been participating in discovery for at least five (5) months, Kaiser has already had
sufficient time to conduct discovery and prepare a defense. Indeed, it was January 30, 2019 that
IPA first asked the Special Master for permission to start a third-party action against Kaiser.
Attached to that application was a full outline of Mr. Seen's testimony, in which he explicitly
identified Kaiser's joint compound as one of the asbestos-containing products to which he was
exposed while working as a drywaller and laborer. Accordingly, Kaiser has been fully aware of
the allegations asserted against itfor over eight (8) months.
26. Because Kaiser was officially named a third-party defendant in this case in April
2019, it had two months prior to the filing of the note of issue to conduct discovery and has had
Court.3
over five (5) months to raise and resolve discovery issues with the parties and the As noted
2
See Ex. 9 (Plaintiff's Memorandum of Law Submitted in Opposition to Kaiser's motion to dismiss).
3
To the extent Kaiser claims that it was prejudiced by any delay between when IPA first requested
permission of the Special Master to file a third-party coiiiplahit and when IPA filed the third-party
complaint, this argument is entirely disingenuous. Almost immediately after the Special Master granted
IPA permission to file a third-party complaint, Kaiser advised that itwas going to appeal the decision and,
shortly thereafter, filed an order to show cause. Justice Mendez then set April 3, 2019(almost three months
after the Special Master's decision) as the return date. Because Kaiser filed the order to show cause as to
the propriety of the third-party complaint, it isresponsible for any delay thattook place in the filingof that
coiiiplahit and cannot claim prejudice therefrom.
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by Justice Mendez, prior to Plaintiff filing the note of issue, Kaiser had the ability to review all the
discovery that had been exchanged between all parties. Ex. 24. With the benefit of this
inforrnation, Kaiser conducted its own deposition of Mr. Seen. Id According to Justice Mendez,
the timing and extent of discovery available to Kaiser was more than enough for it to prepare a
defense. Id
27. The contention that Kaiser needs additional time to prepare for trial because the
third-party claims asserted by IPA are distinct from the claims of liability now asserted by Plaintiff
is devoid of merit. IPA's third-party claims for contribution and indemnification against Kaiser
are inextricably tied to Plaintiff's underlying theory of liability such that Kaiser could not prepare
a defense to IPA's third-party claims without preparing a defense to Plaintiff's direct claims.
Indeed, Kaiser admitted as much when, in its support of its motion to sever, Kaiser's counsel
informed the Court that "Kaiser Gypsum will proffer various experts at trial,including an industrial
pulmonologist,"
hygienist, toxicologist, epidemiologist, pathologist and/or to prove that "itsjoint
damages."
compound did not proximately cause Plaintiff's claimed Ex. 15, at 2-3.
28. Even ifbecoming a direct defendant in this case requires Kaiser to make additional
trial preparations, it has ample time to do so. A trialdate has not been assigned and, given the
Court's schedule and the NYCAL calendar, there likely will not be a trial date until 2020. This
means that, by the time a trial date is assigned, Kaiser will have had over one year to strategize
and prepare a defense in this case.
29. In any event, there is no outstanding discovery, nor are there any discovery issues,
which are unique to Kaiser such that it requires more time to prepare for trial than any other
defendant. Ever since motion practice with Kaiser began in January 2019, Kaiser has claimed that
it needs additional time to obtain discovery and resolve discovery issues. Kaiser raised its
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discovery concerns in itsmotion to sever in essentially the same manner as in the instant motion
and Justice Mendez found them entirely unpersuasive. Specifically, in response to the "laundry
issues"
listof potential discovery raised by Kaiser, Justice Mendez ruled that there was "no proof
of any specific outstanding demands or that [Kaiser] is otherwise unable to have its rights
calendar."
accommodated by the parties while this case makes itsway up the trial Ex. 24. Insofar
as Kaiser failsto identify any specific outstanding discovery demand or issue in its instant motion
and a trial date has stillnot been assigned, this Court should reach the same decision as Justice
Mendez did in July 2019 and deny Kaiser's motion.
CONCLUSION
30. WHEREFORE, for the foregoing reasons, Plaintiffrespectfully submits that Kaiser
Gypsum Company, Inc.'s motion for the reversal of NYCAL Special Master Shelley Rossoff
Olen's order denying its request that Plaintiff's action be automatically moved to the next
Accelerated Trial Cluster should be denied.
Dated: New York, New York
October 2, 2019
SIMMONS HANLY CONROY
Attorneys for Plaintiff
Ol via . Kelly sq.
James M. Kramer, Esq.
Daniel P. Blouin, Esq.
112 Madison Avenue, 7 Floor
New York, NY 10016
(212) 784-6400
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FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------- X SINAR SEEN, Individually and as Temporary Administrator of the Estate of MUNIR SEEN, Deceased, : : Index No. 190225/ 2018 : Plaintiff, -against- : 84 LUMBAR COMPANY, et al., : : Defendants. : : __----. -----------------------X AFFIRMATION OF OLIVIA P. KELLY IN OPPOSITION TO DEFENDANT KAISER GYPSUM'S MOTION FOR THE REVERSAL OF SPECIAL MASTER OLSEN'S RULING DENYING KAISER GYPSUM'S REQUEST TO REMOVE PLAINTIFF'S ACTION TO A SUBSEQUENT TRIAL CLUSTER OLIVIA P. KELLY, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate with the law firm Simmons Hanly Conroy, counsel for Plaintiff Sinar Seen, Individually and as the Temporary Administrator of the Estate of Munir Seen, in the above-captioned action. As such, I am fully familiar with the facts and circumstances surrounding the action herein. 2. This affirmation is respectfully submitted in opposition to Defendant Kaiser Gypsum Company, Inc 's ("Kaiser") motion for the reversal of New York City Asbestos Litigation ("NYCAL") Special Master's Order denying its request that Plaintiff's action be automatically removed from the April 2019 trialcluster and be moved to the next succeeding Accelerated Trial Cluster pursuant to NYCAL Case Management Order ("CMO") §VII B. 1 1 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 3. Just as NYCAL Coordinating Justice Manuel Mendez denied the motion Kaiser filed in May 2019, seeking to sever the third-party action brought by Defendant/Third-Party Plaintiff IPA Systems, Inc. ("IPA"), this Court must deny the instant motion for, in effect, the same relief. For over eight months, Kaiser has made every possible effort to avoid defending itself in this litigation along with the other defendants. Kaiser's contentions that itshould not be subject to suit in this case and that claims should not be resolved along with the other defendants have been repeatedly denied both by the NYCAL Special Master Shelley Rossoff Olsen and Justice Mendez. Kaiser has been aware of,and preparing a defense to (or, should have been), Plaintiff's claims since January 2019. Ithas obtained all necessary and relevant discovery and had a full and fair to depose Mr. Seen in June 2019 (with the benefit of all information its co- opportunity defendants had uncovered throughout discovery). Under the circumstances, Kaiser's motion can be viewed as nothing more than either an improper second attempt to sever the litigation of the claims against itfrom those against the other defendants or a meritless new request to delay trial unnecessarily. In either case, Kaiser's motion must be denied. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND 4. From about 1967 through 1980, Munir Seen ("Mr. Seen") worked as drywaller, laborer, and carpenter, in which capacity he was exposed to numerous asbestos-containing products, including Kaiser's joint compound. See Deposition Transcript of Mr. Seen, dated Sept. 5, 2018, attached hereto as Exhibit 1, at pp. 67, 247-248, 265, 285-287. On February 16, 2016, Mr. Seen was diagnosed with malignant mesothelioma. See Pathology report dated Feb. 16, 2016, attached hereto as Exhibit 2. He died of this disease on July 2, 2019, at the age of 69. See Mr. Seen's death certificate, attached hereto as Exhibit 3. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 5. Mr. Seen commenced the instant action by filing a summons and complaint on August 10, 2018. See Initial summons and complaint, attached hereto as Exhibit 4. Amended complaints naming additional defendants were filed on August 30, 2018, and September 11, 2019. See First and Second Amended Complaints, attached hereto as Exhibit 5. 6. Mr. Seen did not name Kaiser in the initial complaint, nor in the first or second amended complaints, because Kaiser was then protected by the automatic stay provisions of the U.S. Bankruptcy Code. 7. Kaiser filed for bankruptcy on September 30, 2016 in the United States Bankruptcy Court for the Western District of North Carolina. See Kaiser's Petition for Non- Voluntary Individuals Filing for Bankruptcy, attached hereto as Exhibit 6. Pursuant to section 362 of the U.S. Bankruptcy Code, an automatic stay was imposed from and after the petition date of Kaiser's bankruptcy on allactions against Kaiser.See Notice of Suggestion of Pendency of Bankruptcy and Automatic Stay of Proceedings, dated Oct. 3, 2016, attached hereto as Exhibit 7. The stay protecting Kaiser from allactions, including any that could have been commenced by Mr. Seen at the time he initiated this action, remained in effect for more than two years. 8. On August 9, 2018, the Bankruptcy Court issued an order setting forth the terms by which the stay as to certain personal injury claims against Kaiser would be lifted. See "Stay Lift Order," Plaintiffs' attached hereto as Exhibit 8. Importantly, as explained in detail in opposition to Kaiser's motion to dismiss on the ground that the statute of limitations has expired (see Plaintiffs' Memorandum of Law dated Sept. 11, 2019, attached hereto as Exhibit 9), the liftof the stay was limited, and itdid not take effect immediately. As is most relevant here, the limited lift Claimant," of the stay could not take effect until an "Asbestos Personal Injury such as Mr. Seen, release" "executed one of the forms of acknowledgement and attached to the Bankruptcy Court's 3 3 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 order. See Ex. 8. Even ifMr. Seen filed an acknowledgement and release form as soon as the Bankruptcy Court's Stay Lift Order was issued on August 9, 2018, the stay would not be deemed lifted until October 29, 2018. The Stay Lift Order expressly provided that the "date on which the automatic stay shall be deemed lifted with respect to a particular Asbestos Personal Injury Clainiant shall be the later of (a) the date on which the claimant's executed Acknowledgment and Debtors' Order]," Release is sent by email to counsel and (b) the Effective date [of the Stay Lift of October 29, 2019. Id, at 3-4. 9. On October 29, 2018, in accordance with the terms of the Stay Lift Order, Plaintiff's counsel sent an acknowledgement and release on behalf of their clients who then had viable asbestos-related claims against Kaiser, including Mr. Seen. See Acknowledgment and Release filed by Simmons Hanly Conroy, attached hereto as Exhibit 10. As per Paragraph 4 of the Stay Lift Order, the stay under which Kaiser had been protected from claims by Mr. Seen was effectively lifted on October 29, 2018, more than two years after Kaiser voluntarily filed itspetition for bankruptcy, and more than two years after Mr. Seen had commenced this action. See Ex. 8, at 4. 10. On January 30, 2019, Defendant IPA Systems, Inc. ("IPA") applied to the Special Master to file an untimely Third-Party Complaint against Kaiser. See IPA's email application to 11.1 Special Master, attached hereto as Exhibit IPA asserted that it had just learned that Kaiser was no longer protected a complete in Court and that Kaiser had re- by stay Bankruptcy recently entered litigation in another NYCAL case. Id Plaintiff did not take a position with respect to IPA's application. On February 9, 2019, after hearing from counsel for both IPA and Kaiser, the As a member ofNYCAL's April 2019 In Extremis Trial Cluster, the dedline to filea third-party complaint in thismatter was January 10, 2019. See Ex. 1L 4 4 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 Special Master granted IPA's request to file an untimely Third-Party Complaint. See email correspondence between counsel for IPA and Kaiser Gypsum and Special Master's decision regarding IPA's filing of an untimely third-party complaint, attached hereto as Exhibit 12. 11. On February 19, 2019, Kaiser moved to vacate the Special Master's ruling. See Kaiser's order to show cause dated Feb. 19, 2019, attached hereto as Exhibit 13. IPA opposed Kaiser's motion and cross-moved for permission to file a third-party complaint. See Affirmation of Neiholas P. Iannuzzi, dated March 28, 2019, attached hereto as Exhibit 14. In itsmotion papers, IPA's counsel asserted that, because Mr. Seen repeatedly identified IPA and Kaiser "in the same breath as joint compound manufacturers, which he used throughout his career in unidentified locations," interests." IPA and Kaiser, "for the purpose of Discovery, have similar Id., at 13. IPA time" asserted that, even though there was still"ample for Kaiser to conduct itsown discovery (in the originally-designated April 2019 Trial Cluster), given the significant overlap between IPA and all," Kaiser's defenses in this case, "most, if not expert reports that IPA had procured could be joined by Kaiser. Id., at 12-13. 12. In addition, at oral argument, IPA's counsel promised to provide Kaiser with all necessary discovery that had been exchanged between the parties thus far in the case so that Kaiser would be as well-equipped as IPA to defend itself against Plaintiff's claims. See Affirmation of Mark L. dated attached hereto with Kaiser's motion to sever the third- Wasef, May 30, 2019, along party complaint, as Exhibit 15, at 3. 13. On April 16, 2016, this Court denied Kaiser's motion to vacate the Special Master's ruling granting IPA permission to file a third-party complaint and granted IPA's cross motion for permission to filea third-party complaint. See Decision and Order by Justice Mendez, dated April 16, 2019, attached hereto as Exhibit 16. 5 5 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 14. On April 23, 2019, IPA served a third-party complaint against Kaiser asserting causes of action for contribution and indemnification. See IPA's Third-Party Complaint dated April 23, 2019, attached hereto as Exhibit 17. IPA promptly shared allthe discovery itobtained in this action with Kaiser such that Kaiser was able to defend itselffrom allegations that itsproduct caused Mr. Seen to unnecessarily develop malignant mesothelioma. See Affirmation of Nicholas P. Iannuzzi, dated June 7, 2019, attached hereto as Exhibit 18, at 4, 6-7. 15. On April 25, 2019, Special Master Olsen conducted a trial readiness conference with counsel for Kaiser in attendance, at which time it was agreed that Mr. Seen would be presented for a limited deposition to testify as to certain new issues and to allow for Kaiser to conduct a cross-examination. See Plaintiff's Amended Notice of Deposition, attached hereto as Exhibit 19; Kaiser's Cross Notice of Deposition, attached hereto as Exhibit 20. 16. On May 30, 2019, Kaiser moved to sever IPA's third-party action from this main action. See Kaiser's Order to Show Cause dated May 30, 2019, attached as Ex. 15. In that motion, Kaiser asserted that, in defense of allegations that Kaiser's joint compound was a substantial contributing factor in the development of Mr. Seen's disease, Kaiser will need to proffer various experts at trial, including an industrial hygienist, toxicologist, epidemiologist, pathologist and/or pulmonologist Id., at 4. Kaiser asserted that itplanned to present evidence demonstrating that its joint compound did not proximately cause Plaintiff's claimed damages, but that it needed additional time to prepare such evidence. Id; See Memorandum of Law Submitted in Support of Kaiser's Motion to Sever Third-Party Action, dated May 29, 2019, included with other motion papers as Ex. 15, at 2-3, 5-6. 17. IPA opposed Kaiser's motion to sever asserting that Kaiser did not require additional time to prepare for trial because, as of June 21, 2019, there was no trialdate in this 6 6 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 matter and, given the Court's schedule and the NYCAL calendar, there likely would not be a trial date until at least October 2019. See Affirmation of Nicholass P. Iannuzzi, dated June 21, 2019, attached hereto as Exhibit 21. IPA further noted that, in any event, Kaiser had been in possession of alldiscovery for some time and should have already begun its trial preparation. Jd. Indeed, Kaiser emphasized for the Court that Kaiser had been on notice of the allegations in this matter (and should have begun preparing a defense) since January 2019. Id. To the extent there was any remaining discovery, IPA explained that Kaiser was on equal footing with all other defendants. Id. 18. On June 11, 2019, Mr. Seen presented for a limited deposition by Kaiser. See Deposition Transcript of Mr. Seen dated June 11, 2019, attached hereto as Exhibit 22. Kaiser cross-examined Mr. Seen as to issues they perceived as relevant to their defense from discovery exchanged between the parties throughout this litigation. Id., pp. 409-412, 415-443, 447-460; Ex. 21, at 6-7. As noted by IPA, Kaiser had the opportunity to fully depose Mr. Seen with the benefit of information IPA had obtained through a thorough investigation of all issues and facts in this matter. Ex. 21, at 6. 19. Plaintiff filed the Note of Issue on June 30, 2019. See Plaintiff's Note of Issue, dated June 30, 2019, attached hereto as Exhibit 23. 20. On July 3, 2019, this Court denied Kaiser's motion to sever the third-party claims from the claims asserted by Plaintiff in the main action. See Decision and Order of Justice Mendez, attached hereto as Exhibit 24. In that decision and order, Justice Mendez rejected Kaiser's claims that itwas brought into this action too late to defend itself from claims that itsasbestos- adequately containing joint compound caused Mr. Seen's disease. Justice Mendez determined that, because Kaiser conducted itsown deposition of Mr. Seen and had an ability to review allexisting discovery 7 7 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 in the action, itcould defend itselfjust as well as the other defendants Plaintiff claimed was responsible for causing his injuries. Id 21. On July 16, 2019, Plaintiff's counsel filed a third amended complaint to reflect that Mr. Seen had died and that his son, Sinar Seen, individually, and as the temporary administrator of Mr. Seen's estate, was carrying on his claims. See Third Amended Complaint, attached hereto as Exhibit 25. 22. On July 31, 2019, Plaintiff amended the complaint once more in order to officially identify that Kaiser, already an active player in this litigation, as a direct defendant. See Fourth Amended Complaint, attached hereto as Exhibit 26. A_RGUMEN_T L Kaiser's Motion Must Be Denied Because Kaiser Has Had Ample Time to Prepare a Defense to Plaintiff's Claims and Justice Mendez Has Already Refused to Grant Kaiser More Time to Prepare for Trial 23. Kaiser moves before this Court arguing that this case must be moved from its current trialcluster (the April 2019 cluster) into the next cluster (the October 2019 cluster) because Plaintiff amended the complaint identifying Kaiser as a direct defendant in this case after the deadline set forth in the CMO. See CMO § VII.B. Despite its claim to the contrary, this motion is, in effect, a motion to renew and/or reargue Justice Mendez's denial of Kaiser's previous application to sever the claims against it. Indeed, although advanced under a provision of the NYCAL CMO rather than the CPLR, the relief Kaiser seeks is precisely the same as it sought in its 2019 motion - a of trial. Like itsmotion to Kaiser claims in the instant motion May delay sever, that itneeds more time to properly prepare itscase. See Affirmation of Sarah Schaeffer-Roth, dated Sept. 4, 2019, at 4. This contention isjust as unpersuasive now as it was then. 8 8 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 24. For essentially the same reasons Justice Mendez denied Kaiser's motion to sever, this Court should deny the instant motion. Although Kaiser was the last defendant to be brought into this action and Plaintiff named Kaiser after the fonnal deadline set forth in the CMO for cases in the April 2019 trialcluster, the claims against Kaiser were brought within the applicable statute period,2 of limitations the claims are valid, and because, as of October 2, 2019 a trialdate has still not been assigned, Kaiser has more than enough time to prepare for trial without the Court transferring this case out of itscurrent trialcluster. 25. Insofar as Kaiser has been on notice of Plaintiff's claims for at least eight (8) months and been participating in discovery for at least five (5) months, Kaiser has already had sufficient time to conduct discovery and prepare a defense. Indeed, it was January 30, 2019 that IPA first asked the Special Master for permission to start a third-party action against Kaiser. Attached to that application was a full outline of Mr. Seen's testimony, in which he explicitly identified Kaiser's joint compound as one of the asbestos-containing products to which he was exposed while working as a drywaller and laborer. Accordingly, Kaiser has been fully aware of the allegations asserted against itfor over eight (8) months. 26. Because Kaiser was officially named a third-party defendant in this case in April 2019, it had two months prior to the filing of the note of issue to conduct discovery and has had Court.3 over five (5) months to raise and resolve discovery issues with the parties and the As noted 2 See Ex. 9 (Plaintiff's Memorandum of Law Submitted in Opposition to Kaiser's motion to dismiss). 3 To the extent Kaiser claims that it was prejudiced by any delay between when IPA first requested permission of the Special Master to file a third-party coiiiplahit and when IPA filed the third-party complaint, this argument is entirely disingenuous. Almost immediately after the Special Master granted IPA permission to file a third-party complaint, Kaiser advised that itwas going to appeal the decision and, shortly thereafter, filed an order to show cause. Justice Mendez then set April 3, 2019(almost three months after the Special Master's decision) as the return date. Because Kaiser filed the order to show cause as to the propriety of the third-party complaint, it isresponsible for any delay thattook place in the filingof that coiiiplahit and cannot claim prejudice therefrom. 9 9 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 by Justice Mendez, prior to Plaintiff filing the note of issue, Kaiser had the ability to review all the discovery that had been exchanged between all parties. Ex. 24. With the benefit of this inforrnation, Kaiser conducted its own deposition of Mr. Seen. Id According to Justice Mendez, the timing and extent of discovery available to Kaiser was more than enough for it to prepare a defense. Id 27. The contention that Kaiser needs additional time to prepare for trial because the third-party claims asserted by IPA are distinct from the claims of liability now asserted by Plaintiff is devoid of merit. IPA's third-party claims for contribution and indemnification against Kaiser are inextricably tied to Plaintiff's underlying theory of liability such that Kaiser could not prepare a defense to IPA's third-party claims without preparing a defense to Plaintiff's direct claims. Indeed, Kaiser admitted as much when, in its support of its motion to sever, Kaiser's counsel informed the Court that "Kaiser Gypsum will proffer various experts at trial,including an industrial pulmonologist," hygienist, toxicologist, epidemiologist, pathologist and/or to prove that "itsjoint damages." compound did not proximately cause Plaintiff's claimed Ex. 15, at 2-3. 28. Even ifbecoming a direct defendant in this case requires Kaiser to make additional trial preparations, it has ample time to do so. A trialdate has not been assigned and, given the Court's schedule and the NYCAL calendar, there likely will not be a trial date until 2020. This means that, by the time a trial date is assigned, Kaiser will have had over one year to strategize and prepare a defense in this case. 29. In any event, there is no outstanding discovery, nor are there any discovery issues, which are unique to Kaiser such that it requires more time to prepare for trial than any other defendant. Ever since motion practice with Kaiser began in January 2019, Kaiser has claimed that it needs additional time to obtain discovery and resolve discovery issues. Kaiser raised its 10 10 of 11 FILED: NEW YORK COUNTY CLERK 10/02/2019 03:20 PM INDEX NO. 190225/2018 NYSCEF DOC. NO. 317 RECEIVED NYSCEF: 10/02/2019 discovery concerns in itsmotion to sever in essentially the same manner as in the instant motion and Justice Mendez found them entirely unpersuasive. Specifically, in response to the "laundry issues" listof potential discovery raised by Kaiser, Justice Mendez ruled that there was "no proof of any specific outstanding demands or that [Kaiser] is otherwise unable to have its rights calendar." accommodated by the parties while this case makes itsway up the trial Ex. 24. Insofar as Kaiser failsto identify any specific outstanding discovery demand or issue in its instant motion and a trial date has stillnot been assigned, this Court should reach the same decision as Justice Mendez did in July 2019 and deny Kaiser's motion. CONCLUSION 30. WHEREFORE, for the foregoing reasons, Plaintiffrespectfully submits that Kaiser Gypsum Company, Inc.'s motion for the reversal of NYCAL Special Master Shelley Rossoff Olen's order denying its request that Plaintiff's action be automatically moved to the next Accelerated Trial Cluster should be denied. Dated: New York, New York October 2, 2019 SIMMONS HANLY CONROY Attorneys for Plaintiff Ol via . Kelly sq. James M. Kramer, Esq. Daniel P. Blouin, Esq. 112 Madison Avenue, 7 Floor New York, NY 10016 (212) 784-6400 11 11 of 11