Jackson v. 84 Lumber Co. (2016)

Our plain-English summary of Jackson v. 84 Lumber Co. (New York Supreme Court, October 17, 2016).

Diane Jackson, as administratrix of the estate of John M. Jackson and individually, sued 84 Lumber Company and several other companies. The claim is that Mr. Jackson's mesothelioma was caused by asbestos in the defendants' products. The opinion does not describe his work or where he was exposed. Before trial, Union Carbide, Crane, Domco and Fairbanks filed many motions in limine, which are requests to limit evidence. The court called its rulings preliminary and subject to objection at trial. It allowed plaintiff's state-of-the-art experts to testify about what was known of asbestos dangers at different times, provided a foundation is laid. It refused to bar the experts' opinions on specific causation or to order a Frye hearing, because specific causation is generally for the jury. It denied Union Carbide's motion to bar a prior deposition of a Georgia Pacific witness. It also denied the motion to bar evidence of recklessness and punitive damages, but ordered that any punitive damages phase be tried separately. References to insurance were barred. Many other requests were denied as premature or reserved for trial.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Onondaga
• Decided: October 17, 2016
• Citation: 2016 NY Slip Op 33130(U)
• Docket: Docket No. 2015EF492, RJI No. 33-15-0949
• Stage: Discovery or evidence ruling
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The trial court granted some and denied or reserved most of the defendants' (Union Carbide, Crane, Domco, Fairbanks) motions in limine, allowing plaintiff's state-of-the-art and specific-causation expert testimony and denying a Frye hearing at this stage.

What the court held. State-of-the-art testimony is admissible where an adequate foundation is laid. Specific causation opinions on asbestos exposure need only give a scientific expression of exposure, and the question is generally one for the jury, so no Frye hearing was required.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• John M. Jackson: mesothelioma; died

The defendants

• Union Carbide Corporation (manufacturer)
• Crane Co. (manufacturer)
• Azrock Industries, Domco Products Texas, Inc. (manufacturer)
• The Fairbanks Co. (manufacturer)
• 84 Lumber Company (supplier)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• George v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the judgment of $588,000 against Celotex, holding the 1947 Hemeon Report was properly admitted and the jury's 90% liability allocation to Celotex was supported by the evidence.
• Lustenring v. AC&S, Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2004). The Appellate Division affirmed the jury verdicts for the plaintiffs against defendant John Crane, Inc., finding the evidence sufficient, no Frye hearing required, and damages not excessive.
• Berger v. Amchem Prods. (New York Supreme Court, 2006). The court denied DaimlerChrysler's motions (joined by Ford and General Motors) to preclude evidence that brake and clutch dust causes asbestos disease, to dismiss the complaints, and for a Frye hearing, so the plaintiffs (Berger and Nygaard estates) prevailed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2016 NY Slip Op 33130(U)

DIANE R. JACKSON, as Administratrix for the Estate of JOHN M. JACKSON, and DIANE JACKSON,

Individually, Plaintiffs,

v.

84 LUMBER COMPANY, etal., Defendants.

Docket No. 2015EF492, RJI No. 33-15-0949.

October 17, 2016.

Supreme Court, Onondaga.

WEITZ & LUXENBERG, PC, Chris Romanelli, Esq., of counsel, Attorneys for Plaintiff.

K&L GATES. LLP, Nicole M. Kozin, Esq., of counsel, Attorneys for Defendant Crane co.

BARRY McTIERNAN & MOORE, Suzanne M. Halbardier, Esq., of counsel. Attorneys for Defendant Azrock Industries, Domco, Products Texas, Inc.

McGIVNEY & KLUGER, P.C. Eric. Gernant, Esq., of counsel, Attorneys for Defendant The Fairbanks Co.

DARGER ERRANTE YAVITZ & BLAU, LLP, Sandra K. Steinman, Esq., of counsel, Attorneys for Defendant Union Carbide Corporation.

DECISION AND ORDER

CHARLES C. MERRELL, Justice of the Supreme Court.

Before the Court are a number of motions in limine which are considered herein. These anticipatory rulings are preliminary and advisory and remain subject to appropriate objections made at trial (Cotgreave v. Public Administrator of Imperial County, 91 AD2d 600 [2nd Dept. 1982]).

Preclusion of Plaintiff's State of the Art Witnesses (Castleman, Rosner and Markowitz) and Related Evidence, (Union Carbide, Crane, Domco, Fairbanks)

Defendants move to preclude the testimony of Plaintiff's "state-of-the-art" expert witnesses generally because (1) the testimony is speculative and without foundation, (2) the documents collected by the witnesses are inadmissible hearsay, (3) the expected testimony does not require expertise and intrudes upon the province of the jury, and (4) the expected testimony is more prejudicial than probative.

This Court has permitted these state of the art witnesses to testify in prior cases, and continues to hold that "state-of-the-art" testimony is appropriate and admissible where an adequate foundation is established. The testimony is limited testimony regarding the availability of knowledge of the dangers of asbestos at various points in time. The testimony is relevant, does not usurp the province of the jury, is not inadmissible hearsay, and is not unduly prejudicial.

The motion to preclude state of the art evidence such as trade association documents, catalogs, medical articles, etc. is denied without prejudice to object at the time it may be offered.

Preclude Evidence of Corporate Structure, Affiliated Companies, (Union Carbide)

Granted insofar as this evidence may be offered on the issues of relative culpability, state of the art proof, and punitive damages.

Exclude References at Trial to Industrial or Chemical Accidents, (Union Carbide)

Denied as premature. The Court will reconsider these references if raised at trial.

Speculative Evidence of Fiber Supply, (Union Carbide)

Denied as the motion is a summary judgment motion couched as a motion in limine.

Health Conditions or Medical Records of Union Carbide King City Asbestos Workers

Reserved. Plaintiff has represented that this issue will not be raised in her direct case at the present time. Regulatory Materials / Public Health Pronouncements ("No Safe Level"), (Union Carbide, Crane)

Defendant's general motion to preclude regulatory materials and public health pronouncements regarding asbestos is denied as overly broad more properly an evidentiary issue for trial. The Court will consider the admissibility of particular materials as they are offered at trial.

Evidence by the Mellon Institute, (Union Carbide)

Union Carbide's motion to preclude evidence regarding the Mellon Studies is denied. The studies are facially relevant and material to state-of-the-art issues raised by Plaintiff. The Court finds they are not unduly prejudicial, that the subject matter of the studies may not have involved mesothelioma does not render them inadmissible. The issues raised by Defendant can be addressed in the testimony and, if necessary, by a limiting instruction.

Working conditions at Union Carbide facilities may be relevant and material to state-of-the-art and notice issues, and issues of recklessness. Defendant's motion to preclude such evidence at this time is denied, without prejudice to renew any such objection at trial.

Testimony of C. William Lehnert, (Union Carbide)

Union Carbide's motion to preclude Plaintiff's use of a deposition of C. William Lehnert taken October 3, 2001 and October 13, 2003 is denied. Use of such depositions at trial by Plaintiff is permitted by CPLR 3117 and encouraged by the 5' District Case Management Order.

Mr. Lehnert was produced by Georgia Pacific with respect to all cases filed in Madision County, Illinois, to testify as to topics which included the use of Union Carbide SG210 asbestos in Georgia Pacific products. Union Carbide counsel appeared and cross-examined Mr. Lehnert on those issues.

Mr. Lehnert's testimony was apparently based in part on notes he prepared as a result of his review of Georgia Pacific formulas and other documents he had assembled and stored at home. Union Carbide now claims, based on a later 2007 deposition of Mr. Lehnert, that his testimony in 2001 and 2003 may not have been accurate or comprehensive as to Georgia Pacific's use of Union Carbide asbestos products, and this should be precluded as not being the "best evidence" of Georgia Pacific's product formulations or is otherwise unreliable as a matter of law.

At the time of Mr. Lehnert's testimony Union Carbide made no such specific objections and made no attempt to adjourn the deposition to obtain the documents upon which Mr. Lehnert relied. Any inaccuracies in Mr. Lehnert's testimony are in the record and could, in theory, be corrected by Mr. Lehnert or another witness from Union Carbide or Georgia Pacific. The jury is certainly capable of resolving these issues.

Recklessness, Punitive Damages, Bifurcation, (Union Carbide, Fairbanks, Crane)

Defendants' motion to preclude evidence of recklessness and punitive damages is denied in that this is not the proper subject of a motion in limine, in essence, a thinly veiled summary judgment motion on the sufficiency rather than admissibility of evidence (see Marshall v. 130 North Bedford Road Mount Kisco Corp., 277 AD2d 432, [2nd Dept. 2000]; Downtown Art Co. v. Zimmerman, 232 AD2d 270, [1st Dept. 1996]).

Defendants seek to preclude evidence as to their wealth, finances and gross revenues. Such evidence may be admissible to the issue of Defendants' ability to warn, test or study the effects of asbestos exposure through use of its products. The Court reserves as to admissibility on these particular issues, should they arise at trial.

Defendants' finances/wealth cannot otherwise be raised in the trial of this action. However, in the event that the fact finder concludes that Defendants' conduct rises to a level of wanton or reckless conduct necessary to sustain a cause of action for punitive damages, Defendants' financial condition would be relevant in assessing punitive damages. In that event, the

amount of punitive damages will be separately determined after a verdict in the main action (see, Prior v. Brown Transport Corp., 103 AD2d 1042, [4th Dept. 1984]; Rupert v. Sellers, 48 AD2d 265 [4th Dept. 1975]; Comment, New York Pattern Jury Instructions 2:278). The motion is granted to the extent of bifurcating the punitive damages phase, if necessary. Exclusion of Plaintiff's Testimony as to Specific Causation "Each and Every Exposure", "Substantial Factor". Frye Hearing, (Union Carbide, Fairbanks, Domco, Crane)

Defendants seek to preclude Plaintiff's experts from testifying as to specific causation; that Decedent's cumulative exposure to asbestos from Defendants' products was a substantial fact in causing his mesothelioma.

Defendants argue that causation opinions of Plaintiffs experts are inadmissible and should be stricken because they lack sufficient foundation and were based on invalid assumptions. Defendants further contend that the expert opinions are not based on any relevant "scientific expression" of Mr. Jackson's exposure to asbestos from Defendants' products, as required by Parker v. Mobil Oil Corp., 7 NY3d 434, 449 (2006). In that regard, Defendants argue that expert testimony that Mr. Jackson's cumulative exposure to Defendants' products were substantial contributing factors in causing Mr. Jackson's mesothelioma, or that "each and every exposure" is capable of causing Mr. Jackson's mesothelioma should be stricken as a matter of law and science.

As noted by the Court of Appeals in Parker, "an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)" Id. at 448.

The Court in Parker held that precise qualifications of exposure levels or use of the dose response relationship is not always necessary, provided whatever methods the expert uses are generally accepted in the scientific community. "So long as plaintiff's experts have provided a scientific expression of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation", (Nonnon v. City of New York, 88 AD3d 384, 396 [3rd Dept. 2011]). As for general causation, the link between asbestos and disease is well documented, and it is generally accepted that inhalation of "raw" asbestos fibers can contribute to an individual risk of developing mesothelioma. See Wiegman v. AC&S, Inc., 24 AD3d 375 [1st Dept. 2006], ("The link between asbestos and disease is well-documented, and the parties merely differed as to whether the asbestos contained in this particular product could be released in respirable form so as to cause disease. Since the parties agreed over causation, no novel scientific technique or application of science was at issue, and a Frye hearing was not warranted").

At this juncture Defendants' motion to preclude and for a Frye hearing as the issue of specific causation is generally one for the jury, (Berger v. Amchem Products, 13 Misc3d 335; Weigman v. A.C. & S., Inc., supra 24 AD3d 375; Lustenring v. A.C. & S. Inc., 13 AD3d 69 [1st Dept. 2004]).

Trade Organization Evidence, (Domco)

Decision reserved, subject to offer of proof concerning admissibility. See George v. Celotex Corp., 914 F2d 26, 29-31 (2nd Cir. 1990).

References to Other Pending Actions, (Fairbanks, Domco)

Reserve. Subject to the following conditions: Plaintiffs may only mention similar, pending or prior actions (1) publishing prior corporate testimony to the jury via videotape or transcript; (2) reading answers to interrogatories from other proceedings, and (3) cross-examining witnesses to establish the frequency of testimony for the

Defendant, to show bias and interest. The Court will consider other offers of proof and objections on a case by case basis. Expert Reliance on Articles that Do Not Deal With Plaintiff's Disease, (Domco)

Denied. Subject to Plaintiff laying a foundation at trial.

Equitable Shares Attributable to Bankrupt Entity, (Domco)

Denied without prejudice as premature.

Regardless of Who Pays, (Fairbanks)

Granted to the extent that direct or indirect references to insurance are precluded.

Undisclosed Witnesses, (Fairbanks)

Denied. The Court will rule at trial if the issue arises.

Disparaging References, (Fairbanks)

Denied as overly broad.

Improper Comparisons, (Fairbanks)

Denied as overly broad.

Inflammatory Photographs and Videotapes, (Fairbanks)

Denied. The Court will consider admissibility when offered. All such photographs or videotapes sought to be used in opening must be presented to opposing counsel twenty-four (24) hours prior to opening statements, or as otherwise agreed by counsel.

Subsequent Remedial Measures, (Fairbanks)

Denied. The Court will consider admissibility when/if offered.

Case Reports, (Domco, 84 Lumber, Fairbanks)

Denied.

Expert Testimony of Conspiracy Among Asbestos Manufacturers and Suppliers, (Domco)

Denied as premature. The Court will consider specific objections at trial.

References to Duty and Provide Warnings, (Fairbanks)

Denied. Not the proper subject of a motion in limine.

Documents From Other Companies, (Fairbanks)

Denied. Objections will be considered if such evidence is offered.

Evidence Including Events and Products Manufactured or Sold After Decedent's Alleged Last Exposure to Asbestos ("Evidence Post-Dating Exposure"), (Fairbanks, Crane, Union Carbide)

Reserve. The Court will determine on the admissibility of documents or other evidence on a document by document basis. However, counsel for the Plaintiff is precluded from mentioning any knowledge or conduct post dating Plaintiffs alleged exposure in his/her opening and prior to an offer of proof concerning a document or other evidence (Cepeda v. AC&S, 15 Misc3d 1111(A); In re Eighth Judicial District Asbestos Litigation, 152 Misc2d 338, 342 [S. Ct. Erie Co. 1991]). Other Products Manufactured By Defendant, (Fairbanks, Crane)

Denied. Objections will be considered if such evidence is offered.

Alleged Ban on Asbestos, (Fairbanks)

Denied; however, Plaintiff shall not use the phrase "asbestos ban" or "ban on asbestos" to describe EPA findings. "Profits over People", (Fairbanks)

Denied. Subject to proof at trial.

Statements Regarding Absent Defendants, (Fairbanks)

Granted as to statements regarding "failure to pay fair share". If necessary, the Court will instruct the jury as to making impermissible inferences from the absence of other Defendants.

Bankruptcy Proofs of Claim Forms, (Fairbanks)

Reserve.

Admission of Plaintiff's Interrogatories and Deposition Transcripts of Co-Defendants No Longer in the Case, (Fairbanks) Reserve.

William Longo/Materials Analytic Services, (Fairbanks)

Denied as moot based on Plaintiff's representations that such evidence will not be offered.

Adopting All Co-Defendants' Motions In Limine, (Union Carbide)

Denied. Blanket references to and reliance on motions made by co-defendants who have settled, not addressed in this Decision and Order, are deemed withdrawn and will not be considered by the Court.

The foregoing constitutes the Decision and Order of the Court. So Ordered.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites