Defendants’ Motion in Limine Denied on Multiple Issues; Including Regulatory Materials, Past Conduct, MAS Studies and Expert Testimony Based on Animal Studies Supreme Court of New York, New York County, April 5, 2017

The plaintiff filed this action against several defendants alleging his asbestos related disease was caused by products for which the defendants were liable. Mr. Evans worked as a cable puller for Western Electric from 1946-48, as a grounds man and lineman for Queens Gas and Electric from 1948-52, as an HVAC worker for multiple employers from 1952-63 and again in a mechanic and supervisory role from 1965-68 at residential and commercial sites. He also claimed potential bystander exposure from residential jobs including roofing, flooring, ceiling, door, plaster work, and from trades working on boilers in his vicinity.

The defendants filed an omnibus motion in limine to preclude 1) improper specific causation 2) argument or evidence of statements made by government agencies or regulations concerning asbestos 3) evidence or argument of knowledge/conduct post Plaintiff’s last exposure 4) testimony of Dr. Arnold Brody 5) testimony/evidence of MAS and MVA employees or work protocol and 6) testimony that the defendants are liable for products they did not make or supply. The court noted that its decision on improper specific causation will be made after hearing on that specific issue.

Preclusion of Regulatory Materials and Public Health: Based on the Parker decision, evidence concerning regulatory statements including publications should be precluded from evidence according to the defendants. Specifically, the defendants took the position that regulatory agencies’ positions with respect to the dangers of asbestos were irrelevant to causation. Further, regulatory agencies were acting to offer preventative measures rather than opinions on causation. Finally, the defendants cited the prejudice they would suffer should this evidence be heard by the trier of fact as many of the regulatory statements were made post last known exposure. The plaintiffs disagreed and pointed out that the request was “overly sweeping and premature.” Further, the plaintiffs noted that the motion in limine did not point out any one specific statement or regulation in support of their motion. Particularly, the plaintiffs argued that the statements targeted for preclusion are routinely admitted in asbestos litigation and are relied upon by the plaintiffs’ experts. Also, the plaintiffs’ countered that the Parker decision is not interpreted to mean that standards cited by the defendants are wholly irrelevant. The court denied the motion but directed the plaintiffs to furnish a list of such documents they intend to offer and identify the appropriate hearsay exceptions. As for studies concerning protective measure, the court precluded their admission to prove causation.

Evidence Regarding Knowledge of Conduct Post: The defendants also moved to preclude evidence post-dating the plaintiff’s last known exposure to asbestos including post remedial measure taken by the defendants. The plaintiffs countered that the request was premature. Further, the plaintiffs argued that this evidence was directly related to corporate knowledge and causation. Specifically, the dangers of asbestos coupled with the lack of use due care went to the heart of the negligence claims according to the plaintiffs. Moreover, New York law required a post-sale duty from the defendants. The court agreed with the plaintiffs and noted the motion sought a blanket exclusion of evidence without identifying any specific evidence.

Preclude the Testimony of Dr. Brody: The defendants argued that Dr. Brody should be excluded from testifying because his studies were based on animal studies. The plaintiffs took the position that animal studies were relevant as they have been used for years in asbestos disease research. The plaintiffs also argued that the defendants could cross examine Dr. Brody on the issue of animal studies versus human studies. The defendants disagreed and argued that his testimony was duplicative with the plaintiffs’ other expert Dr. John Maddox. Plaintiffs countered that Dr. Maddox was a medical doctor and pathologist whereas Dr. Brody held a Ph.D. in Cell Biology. More importantly though, the plaintiffs argued they needed Dr. Brody to testify on the development of cancer on a cellular level. The defendants continued their argument by illustrating the prejudicial value of using “magnified rat lung cells” to give the impression that disease occurred immediately upon inhalation. The court denied the defendants’ motion stating that nothing was presented showing that animal studies are not related to human diseases.

Precluding the Testimony of any MAS and MVA Employee and to Exclude Evidence of any MVA Work Practice Studies: The defendants had argued that the plaintiffs would improperly use these videos to establish that the plaintiff was exposed to respirable fibers. Specifically, the videos/studies violated New York law according to the defendants by 1) using methodology not generally accepted in the scientific community 2) permitting irrelevant evidence 3) allowing any probative value to be outweighed by its prejudicial effect. Additionally, the defendants took exception to the use of Tyndall Lighting videos which used special lighting to enhance the visual effect of dust in the air. The plaintiffs countered that the motion should be denied because 1) it was overbroad 2) the studies would assist the jury in understanding the plaintiff’s exposure 3) the studies are reliable 4) the methodology is widely accepted 5) many courts have admitted such evidence in the past. Prior to the hearing, the plaintiffs stipulated that no MAS and MVA employee would testify at trial. However, they would not rule out that their expert, Dr. Carl Brodkin, would discuss them in his testimony. The court denied the defendants motion to exclude evidence of MAS and/or MVA videotapes and studies citing that although one judge had found them to be “junk science” the defendants had not offered any scientific evidence warranting a Frye hearing. The court was also persuaded that the EPA may have endorsed Tyndall Lighting.

Preclude Plaintiff from Arguing that Defendants are Liable for Products They Did Not Manufacture or Supply: The defendants also moved to preclude evidence that they may be liable for asbestos used in or around their equipment that was not supplied by the defendants. The defendants noted that under the Dummit decision they had a duty to warn of the danger arising under the foreseeable use of its product in combination with a third party product when necessary to enable the manufacturer’s product to function as intended. The defendants relied on the court’s comment that “a commonsense line at which the duty ends” must be drawn. This line included a balance of factors. The defendants argued this case fit into that framework with respect to material they did not supply or manufacture. On the other hand, the plaintiffs argued that this argument was really one of summary judgment and not a motion in limine. The plaintiffs also noted that New York courts have repeatedly held equipment defendants liable for replacement components containing asbestos to be used in those defendants’ equipment. The court disagreed with the defendants and denied the motion citing case law that created a duty to warn on the part of the defendants.

Compel Filing of Plaintiffs’ Proof of Claims or to Forever Enjoin Filing Claims with Bankruptcy Trusts: The court found this portion of the motion as moot based on the plaintiffs’ representation at the March 29 hearing that all proofs of claims had been submitted and that no additional claims would be filed.

Read the full decision here.



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