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  • Joanna Koletar as Executrix of the Estate of FRANK J KOLETAR, JR., Deceased, and Individually as the Surviving Spouse of FRANK J. KOLETAR, JR., Frank Koletar, Joanna Koletar his spouse v. Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps, Inc., Armstrong International, Inc. individually and as successor to Armstrong Machine Works, Beazer East, Inc. f/k/a Beazer Materials & Services, Inc. f/k/a Koppers Co., Inc., Burnham Llc, Cbs Corporation f/k/a Viacom Inc. successor by merger to CBS Corporation f/k/a Westinghouse Electric Corporation, Cleaver-Brooks, Inc. f/k/a Aqua-Chem, Inc., Clyde Union Inc. f/k/a Union Pump Company, Crane Co., Crane Co. as successor in interest to National-U.S. Radiator Corporation, Federated Development, Llc as successor in interest to Pacific Steel Boiler and National-U.S. Radiator Corporation, Ferro Engineering Division Of On Marine Services Company, Llc, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by merger to Durco International, Flowserve Us, Inc. solely as successor to  Rockwell Manufacturing Company Edward Valves, Inc. and Edward Vogt Valve Company, Foseco, Inc., Foster Wheeler Llc, Frontier Insulation Contractors, Inc. f/k/a Frontier Insulation and Asbestos, Inc., General Electric Company, Goulds Pumps, Incorporated f/k/a Goulds Pumps Merger Corporation, Grinnell Llc, Honeywell International Inc. as successor in interest to Wilputte Coke Oven Division of Alliedsignal, Inc., Honeywell International Inc. f/k/a Alliedsignal, Inc. and as successor in interest to The Bendix Corporation, Imo Industries Inc. individually and as successor in interst to IMO Delaval, Industrial Insulation Sales, Inc., Ingersoll-Rand Company, Insul Company, Inc., Insulation Distributors, Inc., Itt Corporation f/k/a ITT Industries, Inc. individually and as successor to ITT Fluid Products Corp. ITT Hoffman ITT Bell & Gossett Company and ITT Marlow, J.H. France Refractories Co., Keeler/Dorr-Oliver Boiler Company, Mader Capital, Inc., Mader Plastering Corp., Mclaughlin Insulation Co., Inc., Met-Pro Technologies Llc a CECO Environmental Company successor by merger to Met-Pro Corporation on behalf of its Dean Pump Division, Niagara Insulations, Inc. f/k/a Niagara Asbestos Co., Inc., Occidental Chemical Corporation, Peerless Industries, Inc., Pfaudler, Inc., Riley Power Inc. f/k/a Babcock Borsig Power, Inc. f/k/a DB Riley, Inc. f/k/a Riley Stoker Corporation, Sid Harvey Industries, Inc., Spirax Sarco, Inc. individually and as successor to Sarco Company, Inc., The Mader Corporation, The William Powell Company, Thiem Corporation as successor by merger to Thiem Corporation as successor by merger to Universal Refractories Corp., Trane U.S. Inc. f/k/a American Standard Inc., Treadwell Corporation, Union Carbide Corporation, Warren Pumps Llc, Weil-Mclain, Zurn Industries, Llc individually and as successor in interest to Erie City Iron Workers Corporation Torts - Asbestos document preview
  • Joanna Koletar as Executrix of the Estate of FRANK J KOLETAR, JR., Deceased, and Individually as the Surviving Spouse of FRANK J. KOLETAR, JR., Frank Koletar, Joanna Koletar his spouse v. Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps, Inc., Armstrong International, Inc. individually and as successor to Armstrong Machine Works, Beazer East, Inc. f/k/a Beazer Materials & Services, Inc. f/k/a Koppers Co., Inc., Burnham Llc, Cbs Corporation f/k/a Viacom Inc. successor by merger to CBS Corporation f/k/a Westinghouse Electric Corporation, Cleaver-Brooks, Inc. f/k/a Aqua-Chem, Inc., Clyde Union Inc. f/k/a Union Pump Company, Crane Co., Crane Co. as successor in interest to National-U.S. Radiator Corporation, Federated Development, Llc as successor in interest to Pacific Steel Boiler and National-U.S. Radiator Corporation, Ferro Engineering Division Of On Marine Services Company, Llc, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by merger to Durco International, Flowserve Us, Inc. solely as successor to  Rockwell Manufacturing Company Edward Valves, Inc. and Edward Vogt Valve Company, Foseco, Inc., Foster Wheeler Llc, Frontier Insulation Contractors, Inc. f/k/a Frontier Insulation and Asbestos, Inc., General Electric Company, Goulds Pumps, Incorporated f/k/a Goulds Pumps Merger Corporation, Grinnell Llc, Honeywell International Inc. as successor in interest to Wilputte Coke Oven Division of Alliedsignal, Inc., Honeywell International Inc. f/k/a Alliedsignal, Inc. and as successor in interest to The Bendix Corporation, Imo Industries Inc. individually and as successor in interst to IMO Delaval, Industrial Insulation Sales, Inc., Ingersoll-Rand Company, Insul Company, Inc., Insulation Distributors, Inc., Itt Corporation f/k/a ITT Industries, Inc. individually and as successor to ITT Fluid Products Corp. ITT Hoffman ITT Bell & Gossett Company and ITT Marlow, J.H. France Refractories Co., Keeler/Dorr-Oliver Boiler Company, Mader Capital, Inc., Mader Plastering Corp., Mclaughlin Insulation Co., Inc., Met-Pro Technologies Llc a CECO Environmental Company successor by merger to Met-Pro Corporation on behalf of its Dean Pump Division, Niagara Insulations, Inc. f/k/a Niagara Asbestos Co., Inc., Occidental Chemical Corporation, Peerless Industries, Inc., Pfaudler, Inc., Riley Power Inc. f/k/a Babcock Borsig Power, Inc. f/k/a DB Riley, Inc. f/k/a Riley Stoker Corporation, Sid Harvey Industries, Inc., Spirax Sarco, Inc. individually and as successor to Sarco Company, Inc., The Mader Corporation, The William Powell Company, Thiem Corporation as successor by merger to Thiem Corporation as successor by merger to Universal Refractories Corp., Trane U.S. Inc. f/k/a American Standard Inc., Treadwell Corporation, Union Carbide Corporation, Warren Pumps Llc, Weil-Mclain, Zurn Industries, Llc individually and as successor in interest to Erie City Iron Workers Corporation Torts - Asbestos document preview
  • Joanna Koletar as Executrix of the Estate of FRANK J KOLETAR, JR., Deceased, and Individually as the Surviving Spouse of FRANK J. KOLETAR, JR., Frank Koletar, Joanna Koletar his spouse v. Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps, Inc., Armstrong International, Inc. individually and as successor to Armstrong Machine Works, Beazer East, Inc. f/k/a Beazer Materials & Services, Inc. f/k/a Koppers Co., Inc., Burnham Llc, Cbs Corporation f/k/a Viacom Inc. successor by merger to CBS Corporation f/k/a Westinghouse Electric Corporation, Cleaver-Brooks, Inc. f/k/a Aqua-Chem, Inc., Clyde Union Inc. f/k/a Union Pump Company, Crane Co., Crane Co. as successor in interest to National-U.S. Radiator Corporation, Federated Development, Llc as successor in interest to Pacific Steel Boiler and National-U.S. Radiator Corporation, Ferro Engineering Division Of On Marine Services Company, Llc, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by merger to Durco International, Flowserve Us, Inc. solely as successor to  Rockwell Manufacturing Company Edward Valves, Inc. and Edward Vogt Valve Company, Foseco, Inc., Foster Wheeler Llc, Frontier Insulation Contractors, Inc. f/k/a Frontier Insulation and Asbestos, Inc., General Electric Company, Goulds Pumps, Incorporated f/k/a Goulds Pumps Merger Corporation, Grinnell Llc, Honeywell International Inc. as successor in interest to Wilputte Coke Oven Division of Alliedsignal, Inc., Honeywell International Inc. f/k/a Alliedsignal, Inc. and as successor in interest to The Bendix Corporation, Imo Industries Inc. individually and as successor in interst to IMO Delaval, Industrial Insulation Sales, Inc., Ingersoll-Rand Company, Insul Company, Inc., Insulation Distributors, Inc., Itt Corporation f/k/a ITT Industries, Inc. individually and as successor to ITT Fluid Products Corp. ITT Hoffman ITT Bell & Gossett Company and ITT Marlow, J.H. France Refractories Co., Keeler/Dorr-Oliver Boiler Company, Mader Capital, Inc., Mader Plastering Corp., Mclaughlin Insulation Co., Inc., Met-Pro Technologies Llc a CECO Environmental Company successor by merger to Met-Pro Corporation on behalf of its Dean Pump Division, Niagara Insulations, Inc. f/k/a Niagara Asbestos Co., Inc., Occidental Chemical Corporation, Peerless Industries, Inc., Pfaudler, Inc., Riley Power Inc. f/k/a Babcock Borsig Power, Inc. f/k/a DB Riley, Inc. f/k/a Riley Stoker Corporation, Sid Harvey Industries, Inc., Spirax Sarco, Inc. individually and as successor to Sarco Company, Inc., The Mader Corporation, The William Powell Company, Thiem Corporation as successor by merger to Thiem Corporation as successor by merger to Universal Refractories Corp., Trane U.S. Inc. f/k/a American Standard Inc., Treadwell Corporation, Union Carbide Corporation, Warren Pumps Llc, Weil-Mclain, Zurn Industries, Llc individually and as successor in interest to Erie City Iron Workers Corporation Torts - Asbestos document preview
  • Joanna Koletar as Executrix of the Estate of FRANK J KOLETAR, JR., Deceased, and Individually as the Surviving Spouse of FRANK J. KOLETAR, JR., Frank Koletar, Joanna Koletar his spouse v. Air & Liquid Systems Corporation as successor by merger to Buffalo Pumps, Inc., Armstrong International, Inc. individually and as successor to Armstrong Machine Works, Beazer East, Inc. f/k/a Beazer Materials & Services, Inc. f/k/a Koppers Co., Inc., Burnham Llc, Cbs Corporation f/k/a Viacom Inc. successor by merger to CBS Corporation f/k/a Westinghouse Electric Corporation, Cleaver-Brooks, Inc. f/k/a Aqua-Chem, Inc., Clyde Union Inc. f/k/a Union Pump Company, Crane Co., Crane Co. as successor in interest to National-U.S. Radiator Corporation, Federated Development, Llc as successor in interest to Pacific Steel Boiler and National-U.S. Radiator Corporation, Ferro Engineering Division Of On Marine Services Company, Llc, Flowserve Corporation f/k/a The Duriron Company, Inc. sued as successor by merger to Durco International, Flowserve Us, Inc. solely as successor to  Rockwell Manufacturing Company Edward Valves, Inc. and Edward Vogt Valve Company, Foseco, Inc., Foster Wheeler Llc, Frontier Insulation Contractors, Inc. f/k/a Frontier Insulation and Asbestos, Inc., General Electric Company, Goulds Pumps, Incorporated f/k/a Goulds Pumps Merger Corporation, Grinnell Llc, Honeywell International Inc. as successor in interest to Wilputte Coke Oven Division of Alliedsignal, Inc., Honeywell International Inc. f/k/a Alliedsignal, Inc. and as successor in interest to The Bendix Corporation, Imo Industries Inc. individually and as successor in interst to IMO Delaval, Industrial Insulation Sales, Inc., Ingersoll-Rand Company, Insul Company, Inc., Insulation Distributors, Inc., Itt Corporation f/k/a ITT Industries, Inc. individually and as successor to ITT Fluid Products Corp. ITT Hoffman ITT Bell & Gossett Company and ITT Marlow, J.H. France Refractories Co., Keeler/Dorr-Oliver Boiler Company, Mader Capital, Inc., Mader Plastering Corp., Mclaughlin Insulation Co., Inc., Met-Pro Technologies Llc a CECO Environmental Company successor by merger to Met-Pro Corporation on behalf of its Dean Pump Division, Niagara Insulations, Inc. f/k/a Niagara Asbestos Co., Inc., Occidental Chemical Corporation, Peerless Industries, Inc., Pfaudler, Inc., Riley Power Inc. f/k/a Babcock Borsig Power, Inc. f/k/a DB Riley, Inc. f/k/a Riley Stoker Corporation, Sid Harvey Industries, Inc., Spirax Sarco, Inc. individually and as successor to Sarco Company, Inc., The Mader Corporation, The William Powell Company, Thiem Corporation as successor by merger to Thiem Corporation as successor by merger to Universal Refractories Corp., Trane U.S. Inc. f/k/a American Standard Inc., Treadwell Corporation, Union Carbide Corporation, Warren Pumps Llc, Weil-Mclain, Zurn Industries, Llc individually and as successor in interest to Erie City Iron Workers Corporation Torts - Asbestos document preview
						
                                

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FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE JOANNA KOLETAR, EXECUTRIX OF THE ESTATE OF FRANK J. KOLETAR, JR., DECEASED, AND INDIVIDUALLY AS THE SURVIVING SPOUSE OF MEMORANDUM OF LAW FRANK J. KOLETAR, JR., IN SUPPORT OF MOTION TO PRECLUDE Plaintiffs, PUNITIVE DAMAGES vs. Index No. 815983/2018 AIR & LIQUID SYSTEMS CORPORATION, et al, Defendants. PRELIMINARY STATEMENT "Zurn" Defendant Zurn Industries, LLC (hereinafter or "defendant") moves in limine to preclude evidence of, references to, or any prejudicial remarks relating to, punitive damages. Zurn respectfully requests this court to grant the within motion because: (1) this is not the type of case for which punitive damages were intended as it would serve no retributive or deterrent function; (2) there is insufficient evidence to support punitive damages against Zurn; (3) any award of punitive damages in this action would violate Zurn's constitutional rights; and (4) the financial status of the defendant is undiscoverable and inadmissible prior to a verdict on liability. The court should preclude Plaintiffs from: claiming the imposition of punitive damages in this case; referring to punitive damages during opening statements and summation; suggesting any specific amount of punitive damages before the jury at any point in the trial; discussing or presenting evidence before jury the financial condition of the defendant. STATEMENT OF FACTS The relevant facts are set forth in the accompanying attorney affirmation of Nicholas P. Fedorka, Esq. dated February 1 1,2020, which is hereby expressly incorporated. 1 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 ARGUMENT Plaintiffs brought this action against numerous defendants, including Zurn, for personal injuries arising out of Decedent Frank J. Koletar, Jr.'s alleged exposure to asbestos-containing products while working as a journey refractory bricklayer at various jobsites from 1961 until 1979. Plaintiffs further allege Mr. Koletar developed mesothelioma and died as a result of the alleged asbestos exposure. Plaintiffs aver in the complaint that punitive damages are warranted, without producing any evidence through discovery to support that claim. Therefore, Zurn moves in limine for an order excluding any and allevidence related to punitive damages in this action. Plaintiffs have not proffered evidence supporting its claim that Zurn was aware of the risk of mesothelioma developing in people exposed to itsasbestos-containing materials, if any, under the circumstances presented by this case at the relevant time (which is no later than 1960s). Plaintiffs may try to impute knowledge of danger to Zurn by reliance on earlier literature indicating that miners of asbestos developed disease. They may argue that Zurn may have Plaintiffs' somehow had access to that type of information. However, there is no basis for contention that Zurn acted with reckless disregard for the health of the people who may have worked with or in the vicinity of such asbestos-containing products. Therefore, the evidence does not warrant an award of punitive damages. L POLICY CONSIDERATIONS HOLD AGAINST APPLICATION OF PUNITIVE DAMAGES, BECAUSE IT WOULD NOT SERVE ANY RETRIBUTIVE OR DETERRENT ROLE. The application for punitive damages serves no retributive or deterrent role, and serve no public policy function. The purpose of punitive damages is "not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from future." indulging in the same conduct in the Xiaokang Xu v Xioling Shirley He, 2017 NY Slip 2 2 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 Op 01412 (3d Dept. Feb. 23, 2017). Judicial preclusion of punitive damages is justified where such an award will not serve any proper purposes, but instead will harm other, even more fundamental interests, such as the compensation of injured parties and the protection of the defendants' rights to due process. See, e.g., BMW v. Gore, 517 U.S. 559, 568 (1996) (holding that the Due Process Clause prohibits grossly excessive awards of punitive damages); Motorola Credit Corp. v. Uzan, 509 F.3d 74 (2d Cir. N.Y. 2007) (same). The Supreme Court has noted punitive damages pose a particular problem for corporations such Zurn, observing that "the rise of large, interstate and multinational corporations has aggravated the problem of arbitrary awards juries." and potentially biased Honda Motor Co. v. Oberg, 512 U.S. 415, 431 (1994). As argued below, the values of retribution and deterrence are not furthered by imposing such damages in this case. Compensatory damages sufficiently punish the defendant in a case such as this, the theory of liability is predicated on strict liability and where the plaintiff seeks recovery for mental anguish and loss of enjoyment of life. Furthermore, there is no possibility of the defendant from the alleged as Zurn has not sold an asbestos- deterring repeating tort, containing product in 40 years. A. Imposing Punitive Damages Serves No Retributive Function. As many courts have recognized, punitive damages are not necessary where compensatory damages also function to deter the tortious conduct. See, e.g., Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 841 (2d Cir. 1967) (reversing punitive award and noting that "heavy compensatory damages, recoverable under some circumstances even without proof objectives" of negligence, should sufficiently meet these otherwise served by punitive damages, since "[m]any awards of compensatory damages doubtless contain something of a punitive element"); Jet Source Charter, Inc. v. Doherty, 148 Cal. App. 4th 1, 10 (Cal. App. 4th Dist. 3 3 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 element" 2007) (holding that "[c]ompensatory damages, however, already contain this punitive of condemning behavior); Blood v. Qwest Servs. Corp., 224 P.3d 301, 331 (Colo. Ct. App. 2009) (holding that "[c]ompensatory damages for an injury may well be based on components that are duplicated in the exemplary damages award, particularly where the compensatory damages include amounts for emotional distress"); Restat. 2d of Torts, § 908 (2nd 1979) (where compensatory damages include emotional distress, there is "no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both"); Prosser and Keeton on Torts § 4 at 25-26 (one reason for imposing tort liability is to provide incentive to avoid future harm; this "idea of prevention shades into punishment of the offender."). Plaintiffs' Here, complaint re-asserts claims for mental anguish and loss of enjoyment of life as part of their punitive damage claim. See, Exhibit A. As compensatory damages cover these claims, an award of punitive damages would be duplicative and provide an unnecessary windfall to Plaintiff's counsel. Therefore, the court should dismiss the punitive damages claim. Justice Helen Freedman, who supervised New York City Asbestos Litigation from 1987 through 2008, has persuasively argued in published literature concerning litigation that "to charge companies with punitive damages for wrongs committed twenty or thirty years before, served no corrective purpose. In many cases, the wrong was committed by a predecessor charged." company, not even the company now Justice Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 SW. U.L. Rev. 511, 527 (2008). This point is salient, as Zurn ceased all manufacturing of asbestos-containing products before 1980. Courts have also recognized that the sheernumber of claims for compensatory damages sufficientlypenalize the defendants in asbestos cases.See, e.g, Dunn v. Hovic, 1 F.3d 1371, 1397 (3d Cir.V.I. 1993) ("The avalanche of compensatory claims against asbestos manufacturers has surely served as more of a punishment and deterrentthan individual punitive assessments in isolatedcases againstmanufacturers of othertypes of products.") 4 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 B. Imposing Punitive Damages Serves No Deterrence Value. Moreover, an award of punitive damages would have no deterrent effect because Zurn does not sell asbestos-containing products. In Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478 (2007) the Court of Appeals held that due to statutory enactments subsequent to the tortious conduct, itwould be unlikely "that these [punitive] damages would deter future reprehensible conduct". Therefore, the court limited the Plaintiff's award to compensatory damages. Id at 491. Appeals' Essential to the Court of reasoning was the purpose of punitive damages to others" "punish the tortfeasor and to deter this wrongdoer and from repeating the wrongdoing. Id at 489. (emphasis added). Because statutory enactments ensure against repetition, the court found punitive damages to be unnecessary. See also, Restatement 2d of Torts, § 908 (2nd 1979) (punitive damages are awarded against a defendant to "deter him and others like him from similar conduct"). In the context of asbestos litigation in particular, the low deterrence value strongly militates against imposing punitive damages. The "deterrence and retribution rationales for punitive damages are not implicated in asbestos cases because of the significant time lapse since conduct" ensured" the relevant and because "federal regulation has largely the tortious conduct will not be repeated. Sanchez v. Various Defendants (In re Asbestos Prods. Liab. Litig.), 2014 2014).2 U.S. Dist. LEXIS 92959, CCH Prod. Liab. Rep. P19,424 *64-65 (E.D. Pa. July 9, Therefore, an award of punitive damages in an asbestos case cannot be justified by reference to deterrence. 2 For this reason, the real victims of punitive damages are the thousands of claimants who are foreclosed from recovery because of the insolvency of asbestos defendants. As JusticeHelen Freedman has persuasively argued, "punitive damages, infrequently paid as they are, only deplete resources that arebetter used to compensate injured parties".Justice Helen E. Freedman, Selected Issues in Asbestos Litigation,37 SW. U.L. Rev. 511, 527 (2008). To mitigate thisproblem, the Third Circuit has affirmed the practice of severing claims for punitivedamages altogether windfalls." in order "to give priorityto compensatory claims over exemplary punitive damage In re Collins, 233 F.3d 809, 812 (3d Cir.2000). 5 5 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 In light of the null rationale for punitive damages, Judge Friendly of the Second Circuit held that New York courts should: consider very seriously whether awarding punitive damages with respect to the negligent -- even negligent -- manufacture and highly sale of a drug governed by federal food and drug requirements, especially in the light of the strengthening of these by the 1962 amendments, 76 Stat. 780 (1962), and the present vigorous attitude toward enforcement, would not do more harm than good. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 840 (2d Cir. 1967) In a pattern of reasoning that mirrors that of the New York Court of Appeals in Ross, Judge Friendly posited that because of federal regulations and the nation-wide attitude towards enforcement of such federal regulations, an award of punitive damages today may no longer good." serve a purpose, and may even "do more harm than While Roginsky dealt with drug regulations and the Ross dealt with agency disclosure regulations, the principle is the same: the value of an award of punitive damages plummets where subsequent statutory and regulatory enactments have ensured against a repetition of the harm. Here, there is no indication that an award of punitive damages would deter Zurn from distributing or producing asbestos-containing materials since has not done so in several decades. Thus, an award of punitive damages as to a company who does not incorporate asbestos into its products would have zero deterrence value. In sum, the policies underlying punitive damages would not be served where itduplicates any award for compensatory damages, and where itfails to deter the defendant and similarly situated defendants from similar conduct in the future. Here, the award would duplicate damages already obtained by compensating the Plaintiffs for mental anguish and loss of enjoyment of life. The award would also have no deterrence value because federal regulations have ensured that the Plaintiffs' alleged tortious conduct will not be repeated. Accordingly, the court should strike the cause of action for punitive damages. 6 6 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 H. THE EVIDENCE DOES NOT SUPPORT AN AWARD FOR PUNITIVE DAMAGES. Punitive damages may only be awarded where the plaintiff clearly establishes that defendant engaged in morally reprehensible conduct. Here, there is no such factual showing that warrants a punitive damage claim against Zurn. Under New York law, punitive damages are "intended as punishment for gross misbehavior for the good of the public and have been referred to as a sort of hybrid between a fine." display of ethical indignation and the imposition of a criminal Home Ins. Co. v. Am. Home Produs. Corp., 75 N.Y.2d 196, 203 (1990) (internal quotation omitted). The Third Department has held that such damages may "be awarded where a defendant's conduct, even though unintentional, is grossly negligent, or wanton or so reckless as to amount to a conscious others" disregard of the rights of Guariglia v. Price Chopper Operating Co., Inc., 38 A.D.3d 1043, 1043 (3d Dept. 2007). See Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 2 (3d Dept. Feb. 23, 2017) (holding that the defendant must display a "criminal indifference to civil obligations"); 36 N.Y. Jur. Damages § 175 (2003) ("The degree of misconduct necessary to warrant and uphold the allowance of punitive damages has been defined in varying language, but all definitions involve the idea of the intentional, wanton, willful, or malicious commission of some illegal act, or of such a perverse and obstinate failure to discharge a duty as warrants the presumption of a reckless indifference to the rights of others which is equivalent to intentional misconduct."). Further, the Fourth Department has held that punitive damages are only appropriate in those singularly rare cases where the plaintiffs presented evidence of outrageous conduct by the defendant. See, Matter of Eighth Jud. Dist. Asbestos Litig., 92 A.D.3d 1259 (4th Dept. 2012). Such evidence must be clearly established, and must be determined by the facts at the time the alleged tortious conduct occurred. Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, supra. An 7 7 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 "award for punitive damages must be supported by clear, unequivocal, and convincing evidence." Camillo v. Geer, 185 A.D.2d 192 (1st Dept. 1992) (citations omitted). See also, Sladick v. Hudson Gen. Corp., 226 A.D.2d 263, 264, 641 N.Y.S.2d 270, 271 (1st Dept. 1996) defendants' ("Plaintiffs failed to demonstrate by clear, unequivocal and convincing evidence that conduct was so wanton or reckless as to justify an award of punitive damages."); Orange & Rockland Utils., Inc. v. Muggs Pub, Inc., 292 A.D.2d 580 (2d Dept. 2002); Randi A. J. v. Long Is. Surgi-Center, 46 A.D.3d 74, 86 (2d Dept. 2007); Mahoney v. Adirondack Pub. Co., 123 A.D.2d 10 (3d Dept. 1986) (rev'd on other grounds); Vicuna v Empire Today, LLC, NY Slip Op 30935(U) (Sup. Ct. New York Cty., 2014); Messner v Medtronic, Inc., 39 Misc. 3d 1213(A) (Sup. Ct. Richmond Cty. 2013); evidence" Here, even if the Court were to apply the "preponderance of the standard espoused by the Fourth Department in In re Seventh Judicial Dist. Asbestos Litig. (190 A.D.2d at 1069 [4th Dept. 1993]), Plaintiffs have produced no evidence to prove Zurn engaged in outrageous and morally reprehensible conduct. plaintiffs' The Hon. James McCarthy confirmed this vigorous standard in dismissing punitive damages claim in the case of Gerber v. Garlock, et al. See Letter Decision dismissing punitive damages claim, decided May 1, 2009, attached as Exhibit C. Likewise, the Fourth Department applied this standard, vacating an award of punitive damages in the case of Drabczyk v. Fisher Controls International, LLC (citing Matter of New York Asbestos Litigation, 89N.Y.2d 955 [1997]), attached as Exhibit D. Plaintiffs herein offer no competent evidence that Zurn supposedly knew, at the relevant times, that exposure to background levels of asbestos could result in the development of mesothelioma. The Fourth Department further held "as a predicate for awarding punitive damages against defendant corporations, the jury had to find that superior officers of the 8 8 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 corporations, acting in the course of their employment, authorized, participated in, consented to, misconduct." or ratified the See Bensen v. Syntex Laboratories, Inc., 249 A.D.2d 904, 905 (4th Dept. 1998); see also Wood v. Strong Mem'l Hosp. of Univ. of Rochester, 273 A.D.2d 929 (4th Dept. 2000) (same); 1 Mott St., Inc. v. Con Edison, 33 A.D.3d 531, 532 (1st Dept. 2006) ("employer liability for punitive damages can result only when a superior officer in the course of employment orders, participates in, or ratifies the outrageous conduct") (internal quotations omitted). A jury may not consider the imposition of punitive damages against a defendant based parties' on evidence of other purported knowledge or general awareness of the dangerous nature of other forms or types of asbestos products in other environments. Plaintiffs herein may attempt to rely upon knowledge, inquiries, or speculation by parties other than Zurn concerning generalized risks of asbestos. Such measures cannot support a punitive damage award against Zurn relating to any alleged but unsubstantiated contentions that Zurn exhibited deliberate indifference to health and safety. Plaintiffs have failed to present sufficient evidence justifying an award of punitive damages against Zurn. Specifically, Plaintiffs have failed to present sufficient evidence that malice," could establish the "improper state of mind or "conscious disregard of the rights of others," culpability" or "high degree of moral necessary to support a punitive damages award to Plaintiffs' that outcome. Therefore, the court should dismiss the claim for punitive damages. Ill. CONSTITUTIONAL PROTECTIONS AND PUBLIC POLICY PRECLUDE PUNITIVE DAMAGES AGAINST ZURN. As demonstrated above, New York law precludes any award of punitive damages against Zurn. Punitive damages are also precluded by the constitutional proscriptions against state deprivation of property without due process. In any case in which a jury is requested to assess 9 9 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 punitive damages, the court has an important responsibility to prevent arbitrary deprivation of property. As the United States Supreme Court held: [p]unitive damages pose an acute danger of arbitrary deprivation of property. Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences. Honda Motor Co. v. Oberg, 512 U.S. at 432 (1994) Recently, the Supreme Court confirmed the courts need to exercise more stringent control on the type of evidence that can be presented to juries considering punitive damages and the instructions juries receive. After quoting the language above from Honda Motor, the Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell stated: Our concerns [regarding arbitrary deprivations of property based on biases against big businesses] are heightened when the decision maker is presented ... with evidence that has little bearing as to the amount of punitive damages that should be awarded. Vague instructions, or those that merely inform the jury to avoid "passion prejudice," or . .. do little to aid the decision maker in itstask of assigning appropriate weight to evidence that is relevant and evidence that is tangential or only inflammatory. State Farm, 538 U.S. at 418. The Supreme Court reaffirmed the judiciary's central role in guarding against excessive punitive damages by requiring appellate courts to engage in de novo review of the excessiveness of punitive damages awards. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440-443 (2001). See also, State Farm, 538 U.S. at 427 (reversing $145 million punitive award based on $1 million in compensatory damages, holding that the state court improperly allowed the jury to consider out-of-state conduct and alleged harm to non-parties, and noting that the "wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award"). Further, the Court held that judicial supervision and control of the punitive damages system must emphatically begin long before a jury renders its verdict. Id. at 420-421 (finding 10 10 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 that the trial court misinterpreted Supreme Court precedent by refusing to limit evidence, and further emphasizing that trial courts must instruct juries on limitations on what they may consider in assessing punitive damages). As such, constitutional protections and pubic policy preclude punitive damages against Zurn in the present matter. A. Evidence or Discussion Defendant's Wealth, Including itsNet or Gross Worth, Must Not Be Presented Before the Jury at Any Phase of the Trial. It follows from the court's duty to guard against punitive damages before the jury renders a verdict that the court should prohibit plaintiff from presenting information on defendant's financial wealth, including its net or gross worth, to the jury. Presenting evidence of defendant's financial condition runs afoul of the protections afforded by the Due Process clause. Moreover, evidence of defendant's conduct outside the state of New York must not be discussed or presented before the jury. The court should exercise its supervisory authority by prohibiting the plaintiff from engaging in such prejudicial tactics. Here, there is no reason to permit Plaintiffs to present to the jury evidence of Zurn's finances, and to do so would violate due process. In defining the standards for constitutionally required review of punitive damage awards, the Supreme Court identified three guideposts for judging the reasonableness of a jury's award and the propriety of the process that produced the award: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio of the award to the actual harm inflicted on the plaintiff; and (3) a comparison with the civil and criminal penalties imposed for comparable misconduct. BMW v. Gore, 517 U.S. at 575-583. "guideposts," None of these due process components, or in any way depends on a defendant's wealth, as the Supreme Court confirmed in State Farm, 538 U.S. at 427 (noting that Campbells," State Farm's assets "had littleto do with the actual harm sustained by the and holding that "[t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive 11 11 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 damages award"). A defendant's assets or wealth "bear no relation to the award's reasonableness harm." or proportionality to the Id. Arguments based on wealth or assets merely "seek to defend damages." a departure from well-established constraints on punitive Id. The Supreme Court in State Farm and BMW v. Gore rejected arguments that evidence of a defendant's financial status can be invoked to justify a large punitive damage award. Id. at 427; BMW v. Gore, 517 U.S. at 575-83. Although the plaintiffs in BMW defended the award in part by reference to BMW's financial condition, the Supreme Court did not even consider that factor in deciding whether the jury award violated the defendant's right to due process. BMW v. Gore, 517 U.S. at 574-585. In a subsequent case, the Court of Appeals agreed with defendant that "the emphasis on the wealth of the wrongdoer increased the risk that the award may have been influenced by prejudice against large corporations, a risk that is of special concern when the nonresident." defendant is a Txo Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 464 (1993). See also Zazu Designs v. L'Oreal S.A., 979 F.2d 499, 508 (7th Cir. 1992) (finding that a defendant's financial condition is completely unrelated to the victim's injury or "the size of the award needed to cause corporate managers to obey the law"). Appeals' Following the Court of decisions in BMW, State Farm and Txo Prod. Corp., defendants' many courts have noted with concern attempts to sway juries based on character as financially stable corporations. During the closing statements of the trial in Rockwell Int'l Corp. v. Wilhite, (143 S.W.3d 604 [Ky. Ct. App. 2003j), the plaintiff's counsel made various disparaging remarks regarding the defendant-appellant Rockwell International Corporation based on its status as a large multinational corporation. The jury awarded punitive damages in the amount of $210,000,000, which the trial court affirmed. Upon appeal, the Kentucky Court of Appeals reiterated the Supreme Court's concern that the emphasis of the wrongdoer's wealth indicated prejudice. The court reminded the litigants that the "case should be tried on its merits 12 12 of 20 FILED: ERIE COUNTY CLERK 02/11/2020 04:46 PM INDEX NO. 815983/2018 NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 02/11/2020 parties." without reference to the wealth or poverty of the Rockwell Int'l Corp. v. Wilhite, 143 S.W.3d at 630. Itheld that references to the defendant's wealth, such as the jury should "make pay" condition" the rich defendants was "an unwarranted reference to the financial of the defendant. Id. Basing an award of punitive damages on Zurn's finances would impermissibly supplant and ignore the substantive constitutional guideposts recognized in BMW v. Gore. Augmenting an award of punitive damages based on the wealth of a defendant who otherwise was found to have acted in a reprehensible manner (which, here, Zurn did not) would be, in the closely analogous context of criminal sanctions, like imposing a longer sentence on a defendant simply because he has a longer statistical life expectancy. Not surprisingly, post-BMW v. Gore lower Court decisions, like the Supreme Court in State Farm, have held that evidence of net worth cannot alone support an award that is higher than the award supported by the three BMW v. Gore guideposts. See, e.g., Continental Trend Resources, Inc. v. OXY USA, 101 F.3d 634, 641 (10th Cir. 1996) ("From the court's statements we conclude that a large punitive award against a large corporate defendant may not be upheld on the basis that it isonly one percent of its net worth or a week's corporate profits."); Lane v. Hughes Aircraft Co., 22 Cal 4th 405, 427 (2000) (Brown, J. concurring) (holding plaintiffs should be precluded from arguing that punitive damages should be "a fixed pe