FILED: NEW YORK COUNTY CLERK 01/08/ :17 02:47 PM INDEX NO /2014 NYSCEF DOC. NO RECEIVED NYSCEF: 01/08/2016

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11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART X IN RE: NEW YORK CITY ASBESTOS LITIGATION X BRENDA J. PAILLE, as Executrix of the Estate of WILLIAM DANIELS BORGES, deceased, et al., NYCAL Plaintiffs, Index No: -against- / et al M COMPANY, Individually and as Successor to Minnesota Mining and Manufacturing Company, et al., Defendants X 0 Centre Street New York, New York 00 August, B E F O R E: THE HONORABLE MARTIN SHULMAN, J U S T I C E A P P E A R A N C E S: BELLUCK & FOX, LLP Attorneys for the Plaintiffs Fifth Avenue - th Floor New York, NY 0 BY: Seth A. Dymond, Esq. Jordan Fox, Esq. LEADER & BERKON, LLP Attorneys for the Defendants IMO/Warren Pumps 0 Third Avenue New York, NY 0 BY: David J. Goodearl, Esq. K&L GATES, LLP Attorneys for Defendants Crane Co/Schneider Lexington Avenue New York, NY 0 BY: Tara L. Pehush, Esq. HARRIS BEACH PLLC Attorneys for Defendant Cooper Industries 0 Wall Street New York, NY 00 BY: Eric H. Lindenman, Esq.

12 Appearances Continued: DARGER ERRANTE YAVITZ & BLAU LLP Attorneys for Union Carbide/Gould Electronic East th Street at Park Avenue-th Floor New York, NY 0 BY: Jonathan B. Kromberg, Esq. HARRIS BEACH PLLC Attorneys for Defendant Hubbell Inc/Progress Lighting 0 Wall Street New York, NY 00 BY: David H. Kochman, Esq. O'HARE PARNAGIAN LLP Attorneys for Defendant Harris Corp. Wall Street - Suite 00 New York, NY 00 BY: Richard A. Menchini, Esq. MCGIVNEY & KLUGER Attorneys for Defendant Duro-Dyne 0 Broad Street - rd Floor New York, NY 00 BY: Chauvron Regis, Esq. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER Attorneys for Defendants American Biltrite/ Fives Gidding & Lewis Machine Tools LLC/Fives Machining Systems, Inc., Carrier Corp., Burnham, LLC VANESSA MILLER Senior Court Reporter

13 THE COURT: Good morning. This matter was referred to me by Judge Heitler regarding a recent cluster of In Extremis cases. Before me is a motion by the plaintiff's counsel to consolidate eleven cases into two discrete groups. One group will contain -- it is requested that one group contain six plaintiffs, Brann, Chinea, Corsi, MacMillan, Murphy and Purville. The second group, this is the five plaintiffs: Borges, Chamblin, Laino, Schmidt and Sheiman. As is my custom and practice, I am deeming all defendants to have adopted the submission in opposition to plaintiffs' order to show cause. There appears to be lead opposition by IMO Industries. Mr. Goodearl submitted an affirmation attaching, approximately, I'm going -- about 0 to 0 exhibits. He went into triple digit or triple-letter exhibit tabs. In addition, I have with me various other individual affidavits in opposition. In no particular order of importance, I will recite who submitted an opposition. Let me emphasize that if I'm missing something, again, the entire group, I think Mr. Goodearl estimated a hundred and, roughly, eight five defendants are somehow broken down from the different plaintiffs. If you're not here, no problem. You're deemed to be here with respect to the arguments. Most of them are somewhat

14 uniform consistent, and we'll go through some of them. So the opposition of Alan MRO Supply, Algoma Hardwoods, Inc., Hubbell Incorporated and Progress Lighting, Avocet Enterprises, Duro Dyne Corporation, Oakfabco, Weyerhaeuser, International Paper, New York Boiler Company, Five Giddings & Lewis Machine Tools, Five Machining Systems, Carrier Corporation, Burnham, American Biltrite, ECR International otherwise known as Utica Boilers, Blackhead Plumbing Supply Company, David Brooks, Cooper Industries, Rheem Manufacturing Company, Damco Products, Harris Corporation, Syracuse Supplies, Pool Pumps, Standard Motors Products, and DAP, Inc. Again, that's what I have. If some of you have e-filed and my court attorney didn't download it in time for me, don't sweat it. It's part of the record. Normally, I would tell you, Mr. Dymond, to go first, but I want to do something a little different, with your permission. I need to understand, Mr. Goodearl, why you believed it was relevant to a consolidation motion to devote the better part of your -page memorandum of law on Navy documents. I understand your need to convince me, or attempt to convince me, that among the eleven plaintiffs, and if I'm mistaken, that's okay, I don't mind being corrected. Three have some -- you make unique

15 Navy and/or shipyard exposure. But for me, doing this a few years, it's somewhat unprecedented for you, no pun intended, to load the deck with all these documents. I'm stymied by it. And I'm not quite sure what you're trying to do in terms of the record. I mean, make your record. I'm just trying to understand where you're going with that. MR. GOODEARL: The reason that this motion was more voluminous than past motions, with respect to the issue of consolidation, was primarily a response to the concern in the First Department's Konstantin decision, which had an inadequate record to decide the matter. I don't personally intend to take up whatever decision this Court has on appeal for my clients, I never have, but it seems to be in the best interest of the record to have as much information as possible. The Navy State of the Arts story is a large part of the State of the Arts story with respect to the development knowledge of the potential health hazards associated with asbestos during the relevant time periods. Now, it is not the entire story, but it is a big part of the story. And I believe that if you read the Brooklyn Navy Yard cases and the Malcolm case, there's a specific reference in Malcolm as to why Brooklyn Navy Yard made sense to consolidate the way that

16 it did and why the consolidation in the Powerhouse was being thrown out. And much of it was to do with the Navy story and any control in Navy methods at the Brooklyn Navy Yard and on ships. And it seems over time that that hasn't been forgotten necessarily, but it hasn't been deemed persuasive and it hasn't really carried the depth. And it seemed like on the heels of the Konstantin decision, it seemed like it made sense to bring that record together, not necessarily for your Honor, who is fully familiar with all of these issues after years of trying these cases, but purely for the record, because, as we all know, the record knows nothing. MR. LINDENMAN: I'm sorry, your Honor. If I may just interrupt, for the record. I know that this is very purposely done in this close quarters, but so as not to repeat anything that anyone might be saying, it's really hard to hear everyone speaking. I know we're slowly moving closer and closer. And normally, when your Honor is on the bench and everyone is far, everyone's speaking a lot louder, but I'm three feet away and I'm missing most of what Mr. Goodearl is saying. So if we could just raise the volume a little, I think it will eliminate a lot of duplication as we all speak.

17 MR. GOODEARL: I will attempt to keep my voice up. I apologize. THE COURT: We'll do that. MR. LINDENMAN: Thank you very much. THE COURT: Your reasoning, or the reasoning of the group, is the same for why you felt the need to enlighten me on state-of-the-art information? Separately from the Navy State of the Art or what the Navy knew, in terms of controlling the independent contractors or the, quote, victimized equipment supplier, end quote? MR. GOODEARL: I don't know if I would call the equipment supplier victimized, but I would suggest that the State of the Arts story -- the State of the Arts story is the most important story that the defendants can tell, generally. And in order to have what we would consider a fair trial, the state-of-the-art must be presented in a way that it won't be confused, or confusing to a jury and that's not necessarily only controlled by the defendants in the courtroom. To the extent that there are a significant number of cases put together that cover vast time periods, it is entirely likely, with the subtleties of the State of the Arts story will be lost through the sheer volume of information. And what is presented in the brief is a relatively brief sketch of the State of

18 the Art. It does take a long time, and there are a lot of documents, but that just further shows the amount of information that is available and likely to overwhelm even the most conscientious jurors. THE COURT: Mr. Dymond? MR. DYMOND: Well, at the outset, the reasoning in Konstantin for an inadequate record was not, or did not have anything to do with exhibits in either of the papers. It was the fact that the actual consolidation papers were not in the record on appeal; so that can't be a basis for this. And, secondly -- THE COURT: But they still ruled. MR. DYMOND: I'm sorry? THE COURT: But the Appellate Division did still rule. MR. DYMOND: They did still rule and they found that the record was adequate. Secondly, the State of the Arts is the State of the Arts. And it doesn't matter whether it's Navy or some other industry, if it's out there in the public domain, it's the State of the Arts; that's something that has been and will continue to be presented in every single asbestos action tried in this state, which, as a

19 result, has nothing to do with consolidation because it's going to happen whether a case is tried individually or consolidated. And it's going to happen up until -- or at least the evidence is going to be presented until the last date of exposure for any particular plaintiff. So if a plaintiff is exposed until ', the State of the Arts up until is going to be presented in full in that case. So I'm unclear as to why the opposition looks the way it does and why the need to proffer those particular exhibits -- why the defendants felt the need to proffer those exhibits as opposed to simply making the argument, which they make otherwise, that, in their opinion, there's differences as to the time periods of exposure here. THE COURT: With full respect to the papers that I plowed through, some parts resonated with me more than others. Believe it or not, the one part that really screamed out at me is not so much the legal arguments that he makes in terms of the Malcolm factors, it's the argument for time and the time spent conducting the jury trial. And, to me, that's more important than any of the arguments any party could make in front of me, because we're focusing on judicial resources and the ability to get the plaintiffs' his or her day in court. At the same time, do so in a manner that's not wasteful. And, again,

20 I'm constantly trying to think about ways to make things go a little quicker without compromising anybody's due-process rights. So I refer you to Page of the treatise submitted to this Court, and particularly the breakdown of joint trials -- I'm sorry, that's the amount. I apologize. Just give me a second. Page. To me, that's very important, for the record. And I know that your firm was involved in representing plaintiffs before NYCAL judges who unilaterally imposed the one trial at a time seriatim rule. I know you were. MR. DYMOND: Once. Yes. THE COURT: Once is enough. I know you were. MR. DYMOND: Yes. THE COURT: So you may have positive or negative experiences with that. I don't know. I don't remember, as I sit here, the outcome of that one case you had with Judge Diamond. Not related -- MR. GOODEARL: They all did settle, your Honor. THE COURT: But when I looked at this breakdown of time, to me, that's something that's a very important issue. And I can say that I was part of that group. My case -- I'm sorry, two of them, both the Blonder and Koczur cases -- I stand corrected, Blonder, Koczur,

21 Derogatis, Vega. So I had a number of these trials. I'm not necessarily persuaded that the likelihood of the defense verdict is greater with an individual case; the defendants are entitled to that spin. For example, I believe that in Vega, for purposes of discussion, if it were part of other cases, would still be a defense verdict if you had a conscientious jury, as we had there, who recognized that there was no product ID. Pretty straightforward. So I'm not concerned that a jury would be confused by having a case like that in the mix of other cases, but I am concerned about time. And I need you to answer that because the days don't lie. And you would have to share your thoughts here about how the six cases would go as fast as one case because they will argue it's the contrary. Podium turned over to you. MR. DYMOND: Okay. So there's a few points that I have to make regarding this. And while the days themselves, as you say, may not lie, they are somewhat misleading for a few reasons: One, they're presented without regard for the number of defendants in the cases at trial; they're presented without regard -- which makes a difference as to length; they're presented without regard to each

22 particular plaintiff's exposure and medical history and things of that nature, which has a direct impact on the length of the treatment; without regarding to any other types of legal issues that will require a plaintiff or a defendant in those cases to have presented additional experts, things of that nature; and it's presented without regard to even the Court's schedule, which is, in some circumstances, here -- as you know, your Honor, there's motion days that are off, there's other down days. So these numbers, as presented on their face, may look appealing, but they are skewed on their face. But even if we were to look and just do a comparison here, Vega, for example, was nine days; and the Gasal (ph) case, they say, was nine days; Assenzio was days for five plaintiffs. So if you were to try five Vegas in a row, that's days. So as far as judicial economy is concerned, you've saved eight, almost nine, days consolidating the cases; that is the definition of judicial economy because we have now, or in that case, we would've tried five plaintiffs for the price of four. So I think it's important to note that I think these numbers are skewed. And even viewing them skewed, there is still an indication here that judicial economy can be served by consolidation. And just as a larger point, I think this is, in

23 my opinion, more an argument, going to whether a consolidation should be permitted in the first place, which is an issue that has already been determined by the legislature because they enacted CPLR 0 which says they can be consolidated and has been reaffirmed by the First Department in Konstantin which says these policy concerns really are in play. The statute says, There could be consolidation, Here's the balancing test we apply, and it's a matter of discretion for the Court. But that consolidation is proper and should be enacted in these types of cases. THE COURT: Ms. Pehush? MS. PEHUSH: Can I make a comment before about the numbers, your Honor? It's actually, they're not skewed. Blonder, for example, is days; that trial, your Honor will remember, spanned over four months. So it's actually working days spanned over four months. So for four months, this Court and various witnesses and parties were tied up. So you almost have to quadruple that number, not reduce it. Dummit says work days, however, that spanned over two-and-a-half almost three months. And those were experiences I've had personally. I don't know about the other numbers on the

24 chart, but just -- it's not actually counting down days and motion days and things like that. That's the pure -- from what I see, the pure numbers on those. MR. GOODEARL: And, your Honor, if I may add, those also don't have jury selection time included in them. Jury selection on the larger consolidations takes three, four, five weeks sometimes. Whereas, generally speaking, the single-plaintiff trials don't take that long. You know, that's just a general experience. And, ultimately, you know, this isn't an inquiry about judicial economy, it is an inquiry about what can move things in the most expedited fashion without trampling on everybody's rights; that's what Malcolm is all about, that's ultimately what we're here to discuss. Whether in the legislature, in its infinite wisdom, decided consolidation was the appropriate vehicle in some circumstances, it is what it is. I mean that's the CPLR. There's nothing to say about it. The question here is is it right for these cases to be consolidated, to what extent does the proposed consolidation trample on defendants' rights and not necessarily provide any judicial economy. I mean, if it's the same number of days or one or two days either way, you would think you would err on the side of not potentially infringing on defendants' rights.

25 Plaintiffs have no compelling reason to put all these cases together other than they don't want to pay David Rosner to testify times. And the issue is judicial economy is almost a right of the Court rather than a right of the parties. It's a prerogative of the Court. The plaintiffs obviously want consolidation because it's just better for them, generally, but it's not a right. At most, it's akin to a prayer for equitable relief, and that's also discretionary and highly fact specific. MR. KROMBERG: Good morning. Jonathan Kromberg. Just two quick points: One, I did the math on those days, so I can tell you firsthand, as Ms. Pehush said, they are actual trial days. As your Honor knows, sometimes in Vega, which was -and-a-half days, but I didn't count them as half days. They are full days there. As your Honor recalls from Vega, we did hardships before lunch. As your Honor knows, some other trials, hardships on joint trial can take a full week, or close to it; that is a lot of time. The reason is you tell a jury to be here for two months, a lot of jurors just can't do that. Every juror who comes in for jury selection expects to be here for a week or two. They understand that that's a reasonable expectation for a

26 juror to think they'll sit for two weeks. To ask anybody for two months, no matter what walk of life they come from, two months, three months, as those trials were, is a lot to ask of anybody. And joint trials, no matter whether there's prejudice or not, at the end of the day, there's always a risk. There's not a risk in individual trials. So whether a joint trial saves two days, I don't think that it's worth the inherent risk of prejudice. We can go through a trial for three months at the end of the day, there's prejudice. We've wasted three months. If you go through a single-plaintiff trial, that's not an issue. A trial is done and we move on with our lives. But the risk of having to retry a case after three months because there's a risk of prejudice that may or may not have turned out at the end of the day, to me, I don't see how that saves judicial resources. THE COURT: I'm sorry. I lost you with the risk. What risks? MR. KROMBERG: There's always a risk of prejudice, and your Honor knows the prejudice -- THE COURT: No, no, sir. I know what the word "prejudice" means. And I recognize the arguments being advanced by the defendants here that, somehow, by having multiple plaintiffs before

27 a jury and reinforcing the pain and suffering and their exposure history and et cetera, splashes onto a, quote, "peripheral defendant." Who may be in only one case where that defendant is advancing low-dose minimal exposure, et cetera. I understand all of that. But, so far, in NYCAL, I'm not aware of a single appellate decision that has determined, as a matter of law, that that prejudice exists or existed in the consolidated cases since they've been done back in either the early '0s. And I'm mindful that we're not talking about the mega consolidated cases before Judge Freeman and Judge Weinstein, historically, and where the bulk of the plaintiffs in those cases were exposed to ample products, insulators, et cetera, et cetera. We understand the differences from those cases and these cases. The numbers here are far lower in that regard and the defenses are more refined than they were then, so I'm mindful of that. But the bottom line is that, as far as NYCAL's concerned, the First Department has somewhat made clear that the prejudice argument that's being advanced in almost every opposition to a consolidation application has not been sustained. I want to emphasize that while Dummit involved -- and Konstantin -- strike that. Let's go off the record for a second.

28 (Discussion held off the record.) THE COURT: Notwithstanding the lack of consolidation papers on that record, whatever that means, I'm mindful that that decision addressed only two plaintiffs as opposed to five, six, seven. True. But I'm also mindful that there was a prior decision in Colgate that consolidated three plaintiffs. Three plaintiffs, one defendant. But I'm also mindful that a number of consolidated decisions were stayed, or the trials were they stayed, via motion practice and they involved more than two plaintiffs. I inherited them. So four, five, again, I'm not familiar with how Judge Scarpulla broke them -- four, oh. Thank you. Okay. So, again, and those motions were denied and the stays vacated. MR. KROMBERG: No, your Honor. The appeal was deemed moot based upon plaintiff's motion to withdraw their application for a joint trial. So the plaintiff made a motion saying, The appeal is moot so we're no longer seeking a joint trial. And so the motion was -- it was basically denied as being moot. They never addressed any of the merits of the appeal. THE COURT: Oh. Is that what happened? MR. KROMBERG: Yes, your Honor.

29 THE COURT: Then I stand corrected. Okay. Anyway, I stand by my position that I'm not aware of any appellate authority that has actually articulated the very prejudices you have raised here, although I'm not sensitive to it and I'm mindful of it. You had a number of points that you wanted to raise on the record, Ms. Pehush. Does it involve this or some other issues? We can move on. MS. PEHUSH: It involves the consolidation, generally, but I don't know if -- it doesn't fit into this discussion of time. THE COURT: Fair enough. But Mr. Kromberg did raise an important point, and I know that we've had a number of consolidated actions where we've spent a great deal of jury selection. Frustrating process for all of us. Fortunately, we ultimately resolved those cases. But I know that you, Mr. Fox, have spent a great deal of time dealing with jury selection issues, and I'm mindful that a lot of your frustration rests on what you perceive to be the unreasonable challenges or objections being made on the part of some of the defendants' counsel during the course of jury selection. Putting that aside, and I'm not making light of that because I had to deal with some of that stuff, what is your answer to trying to

30 get a quality jury willing to sit for what could be a two- to three-month trial? And you know these cases can last that long in light of the number of plaintiffs and the amount of material that has to be presented. I mean, you personally went through the voir dire. You recognize and saw the frustration of trying to get the kind of jury that you believed is important for your client's cases; what's your reaction to that? MR. FOX: Some of it is generated not by the fact that there are multiple plaintiffs, some of it is generated by other factors that would exist. I've had one plaintiff jury selection that have lasted a long time because there have been problems on the lawyers' side. A lot of it turns on the ability of lawyers to sift through the jury pool. What happens a lot is that although you may consolidate several cases at once, by the time you get through jury selection, all the cases fall through. So we end up telling the jury that instead of being a two-months experience, it's going to be a six-week or four-weeks experience. THE COURT: But you can't guarantee that all the time. MR. FOX: You can't always guarantee that. The system practice what happens.

31 It seems like there is, dynamically, you know, if you do have multiple plaintiffs, that that does happen. And it's unlike a single plaintiff, it seems to generate more activity in terms of being able to resolve cases and it turns out to be not as cumbersome as it may appear at first. And so while we do -- you would tell the jury that would be a longer period of time. We have been able to secure jurors that have been acceptable to both sides and there has not been a problem. I think if you look at Dummit, Konstantin, I think that the jury obviously were able to sift through the issues and conjure up a credible verdict that made sense, and it's not been a problem. And it may be a longer trial, but practically, it seems to work out okay. And as long as the lawyers are reasonable, I think we're able to move forward. THE COURT: So you think really it's something that can be resolved with strict deadlines and strict behavioral control? MR. FOX: Yes, yes. And I think what we're able to do is we have been able to look at a jury pool at the beginning of the process to identify those people that just can't serve. If you talk to every single one of them individually, that's when the time starts to accumulate. If you're

32 able to do it, you know, say to the group, This is a several-month trial, a two-month trial, How many of you cannot serve for these reasons, you talk to them and then you wind up with a pool of people that can do it and then you work on that group. It works out fairly well. THE COURT: Do you want to respond? MR. KROMBERG: Yes. Just quickly, your Honor. I'm not suggesting that the quality of the jury is the issue. I think the other issue is that you'll get a homogenous jury, because people who sit for two months come from a very small subset of the larger population. I think we're entitled to a diverse jury pool and we don't get that because it's very small people that can sit for -- THE COURT: Mr. Kromberg, you are referring to the quality of the jury. You want a well-educated professional on that jury, regardless of the demographics. And in order to get a well-educated professional on that jury, it presupposes that that juror has the ability to take off time from work. You don't want a jury pool of students or retirees. Let's call it what it is. So it's not -- MR. KROMBERG: Your Honor, I would agree that as a jury consultant, of course, that I want the well educated, but I think we're entitled to a diverse jury;

33 and that's what we don't get when we say we want people who can sit for three months. As your Honor said, you get students and retirees, that's not the population of Manhattan. We don't get the population of Manhattan. We get a very small subset, a homogeneous subset. So we lose our right to take a diverse jury. THE COURT: Fair enough. I'm going to broaden it a bit. Ms. Pehush, you want to comment on the consolidation issue generally? MR. LINDENMAN: Your Honor, just one last thing about the time. THE COURT: Who do you represent, sir? MR. LINDENMAN: I represent Cooper Industries. We're in one case and in Group Two, the Chamblin case. And although I have other issues, the timing issue sort of dovetails on what the main argument is with regard to timing. The prerogative is for your Honor to consolidate judicial economy any number of other reasons, but I think that also can hurt defendant, and my client in particular at this time, when we're in one case out of the five and then we are just basically sitting around and we have to attend. We don't know how it's going to work as a joint trial. We're forced to spend considerable resources for

34 a, 0, 0, how many day trial, because we're consolidating with this case, which I think, as we will discuss, there are other reasons that will justify us not being consolidated with this particular group. So I think that there are many, what I'll call, one-off defendants who are in one case out of the eleven, or out of each group, that are forced to waste a tremendous amount of resources committed to do nothing else by this case where they may have an equivalent of seven days of real trial for their particular client with this particular single plaintiff, but still has to devote resources for however long this trial lasts. THE COURT: Well, let's say you had an order of battle in how the trial progresses, and I'm mindful that you're concerned that you might miss something, but I've seen enough of these cases to recognize that plaintiffs are fairly transparent in how they present their case and who goes first. So that, conceivably, in the course of the trial -- Hypothetically, take your client, for example, let's say when we reach that group, if I determine that that's part of the group, and the group of five, they may make a decision to accommodate your situation by putting Chamblin later than the others and saying, Well, there's no reason for you to have to participate with all the

35 other defendants' cases, it's being heard, or the other plaintiffs' cases being heard. Moreover, I understand that daily copy is generally ordered during these trials so you can make yourself available to see what the transcripts are on a given day. I mean, there are ways that I can even assist you in fostering and reducing your transactional costs on behalf of Cooper Industries. Put aside the fact, if, it's a big if, unless you believe that your case is entirely deferrable and you have every reason to believe that there should be a defense verdict here, I'm not saying this it's true, but there is something called settlements. MR. LINDENMAN: God knows, your Honor. THE COURT: Again, I'm not -- MR. LINDENMAN: No, I know. THE COURT: Sir, I'm not saying that I'm leveraging. MR. LINDENMAN: No. I appreciate that, your Honor. But I didn't take it that way. Hopefully, no one else in the courtroom took it that way. The concern with that though still, even if there is a section of the trial that is just mine, is that the testimony, whether it's State of the Arts exposure, whatever, still paints across the entire spectrum of defendants. And then it's awfully hard to

36 tell a jury, Now, remember those first few days, that was just about this defendant and none of this other State of the Arts. And by the end of trial, after all of these days, there's no way they can parse through, Well, State of the Arts here and State of the Arts there, you know. It's going to be very difficult, and I think needlessly prejudicial, that this steps more into some other parts of the argument. But it does relate to the timing commitment, that we run the risk if we're not there. And even if we are, that we're painted that way, when we're just a small little guy. THE COURT: I get it. MR. LINDENMAN: That's all, your Honor. Thank you. MR. GOODEARL: And, your Honor, to amplify that point: Of the remaining defendants in this group, are in one case. And I understand we all know what's going to happen in these cases, but the record right now is defendants, in a single case. THE COURT: Which one -- you broke it down, 0,. I didn't memorize this stuff. MR. GOODEARL: I did break it down by each, but I did not break it down by each group. THE COURT: Okay. That's why I didn't

37 remember. I remember you saying, but I couldn't remember. MR. GOODEARL: It's a relatively staggering number. It kind of jumps out. But, I mean, it also speaks to the fact that I think a lot of these cases have nothing to do with each other. We have separate entities only in one of them. It's just on kind of a straightforward, visceral level, it seems to implicate that. MS. PEHUSH: My only two comments, your Honor, are more housekeeping, but the Brann case, the plaintiff is recently deceased. The complaint has not been amended, so your Honor does not have jurisdiction over that case right now. So it's Crane Co's position -- Tara Pehush on behalf of Crane Co. -- it cannot join it. It cannot do anything with that case until it's properly -- the estate or whatever is properly substituted as plaintiff. Also, in the Laino case, which is part -- THE COURT: I'm sorry. You're saying Brann? I already know Brann passed away. MS. PEHUSH: Correct. And the complaint has not been amended. In Laino, that Mr. Laino had passed away some time ago, the complaint was recently amended. The

38 plaintiffs did not file an RJI in that case until two weeks ago. So, therefore, defendants were unable to file summary judgment motions for quite some time. On behalf of Crane Co., we filed it right after the RJI was filed, but as your Honor knows, it takes a few months for those to come down the pike. I don't know what your Honor's trial schedule is. Should this not even been an issue for a few months, I don't have an issue, but we'd like resolution of our summary judgment motion before this would be set down for trial. So those are my only housekeeping-esque comments, although the Brann is a little more than housekeeping. THE COURT: I assume they're taking care of that. MR. FOX: Yes. I am checking. I'm sure it is. It's done or will be done. MS. PEHUSH: We haven't been served with any estate papers or anything like that. I think he passed away about a month ago. THE COURT: Let me move onto something else. You devote a part of your memo to a strict constructionist view of the Malcolm factors. We've been through this many, many times. It is a fair argument to make, but it's not a sustainable one. The majority decision, which was not challenged by the descending

39 opinion, makes clear that, within our discretion, we have the ability to consolidate plaintiffs in similar occupations with similar products with overlapping work histories. Judge Mazzarelli was very clear in the language of the majority of the decision there. So as I sit here now, the argument that we are confronted with multiple plaintiffs who do not have the exact same job description, the exact same work sites, the exact same time period, seems to have been rendered moot as I sit here. MR. GOODEARL: Well, I would disagree. I mean, obviously, within your discretion, you're able to take that direction according to the First Department. I'm not going to change your mind, apparently, but -- THE COURT: No, no. But did I misinterpret the decision? MR. GOODEARL: No. It's just discretion is broad. But Malcolm is supposed to be how you apply discretion, and that's how plaintiffs believe discretion should be applied. This Court is obviously free, within its own discretion, to make that decision. THE COURT: Off the record for a second. (Discussion held off the record.) THE COURT: Okay. Let's just simply recite

40 0 what is coming, at least with respect to the first grouping sought to be consolidated. They are all suffer from, or suffered, from mesothelioma. Interestingly enough, they're all, more or less, in the same age group. Three of them are, or are, the others are,,. So, that's interesting. We're not confronted with someone of a younger group here. There are three living plaintiffs and three decedent plaintiffs. Same law firm. Same Article defenses. While I'm mindful of the fascinating State of the Arts arguments made for the first time, since I've been doing this, and I'm not being condescending because I'm aware that there is a national trend now to truly change the landscape of the State of the Arts, so I'm mindful of it and I am making that record. I'll note, actually, I would have to see it live and in color, but I know that where the defense part is going in an effort to try and present an arguably different picture of what did they know and when did they know it in the context of what was really knowable in terms of validity and what the State of the Art understood at a particular point in time, to what one could do and should do and what would be allowable in the context of either threshold limit values or other information out there. Okay. And I have

41 to acknowledge that on this record. MR. GOODEARL: Your Honor, may I make one point on that? THE COURT: You may. MR. GOODEARL: One thing that is also important, with respect to the State of the Arts, and I didn't make it completely in my papers, believe it or not, but I did reference it, is the potential for the heeding presumption. And certain elements of the State of the Arts actually implicate on what plaintiffs likely knew and what plaintiffs had available to them. And to the extent that there's going to be a heeding presumption, the fact that certain of these plaintiffs that were on certain unions, that were given magazines describing the hazards of asbestos, and to the extent that these individuals did not, in fact, undertake any precaution is a very important fact, and one that really runs the risk of being overlooked. THE COURT: And is that why you quote from, I think it was Mr. Brann's deposition, where he said, It's silly stuff? MR. GOODEARL: Sissy stuff. Yes. Because, let's face it, a warning given to him by a manufacturer, I mean, what's that going to change? And a jury needs to be able to really consider that in

42 its proper context. You know, and that's a big part of a lot of these cases. It's the reason that Castleman wrote to Selikoff to try to get him to destroy his records -- MR. FOX: Oh, come on. MR. GOODEARL: It's in the letter. THE COURT: Well, that has never been -- there have been -- strike that. Let me do it this way: There have been efforts to trying to deduce a claimed letter that was sent to Dr. Selikoff by Dr. Castleman, but, so far, it has never really been admitted. And there's been no testimony where Dr. Castleman definitively stated, That is my letter that I sent, notwithstanding how effective you folks are in trying to cross him on it. MS. PEHUSH: I'd have to refer to the Dummit transcript, but he does -- THE COURT: I don't know about Dummit. I can only speak from my own experience with that bit of information. I'm very tunnel-visioned that way. Okay. I just wanted to clarify. But I'm also mindful of the fact, while the decedent focuses on the issue of whether there is a basis for the heeding presumption -- and let me be clear. The issue that was raised now, or being raised, is whether

43 judges in NYCAL, in light of this decision, will be granting plaintiffs' request for a heeding presumption charge. I'm mindful that that is an issue that's the heeding presumption subject of appeal in Peraica. The issue is whether conclusive, rebuttable, the issue is whether there is a basis for it, because it's not a formal PJI charge. It was, my words, crafted from certain appellate authority that the defendant, Dummit characterized it, as being picked on. It is what it is. It doesn't foreclose you from advancing a defense with respect to any particular plaintiff or, for that matter, all the plaintiffs, depending on what they did during their work histories and their ability to get information that would've allowed them to make an informed -- do it this way: To have a sane appreciation of the risks. Fair point. The point that I wanted to go back with State of the Arts is pretty much uniform, although it's a question for each particular plaintiff of when the State of the Arts starts or stops, but it doesn't really. I don't believe it really challenges the jury's ability to follow the dancing ball, notwithstanding counsel for Dummit's argument that they will get lost in the shuffle with State of the Art. I am mindful that in NYCAL we have not really

44 seen a proactive approach to the defense advancing the State of the Arts defense as much as to focus on cross examination. We may see a shift in that, and that's fine. Whether it's one case or five cases or six cases, your rights are fully preserved with respect to advancing that defense. It's not something that's going to move me in terms of something unique about it that outweighed the commonalities or somehow sets aside a basis for consolidation based on the State of the Arts argument. I think I've covered all of the major bullet points that were set out in the opposition, or at least we've discussed that. Again, I've noted all the opposition papers here, and I made it very clear. I said it in the beginning, I'm going to say it again. All the arguments being raised, these are all deemed part of the court record. We can call them collectively Court Exhibit II. To be supplemented if someone feels I didn't get their e-filed copy or their hard copy. No. I'm not inviting you to submit papers now. I'm saying that if you've previously filed them and I don't have them, just get them to me. But you're deemed to have incorporated by reference all of the arguments being raised to be deemed to have advanced the arguments being raised if the individuality outweighs the commonality to have advanced the argument of severe

45 prejudice by being grouped with multiple plaintiffs, particularly if you are either in only one case, the very arguments that were advanced by counsel for Cooper Industries, it's all noted. So I don't think there's any, quote, "prejudice" here on this round of motion practice in terms of your appellate remedies. Right now, I'm going to afford anybody out there who feels there's something unique about your particular role in any particular case that warrants your case being severed or being tried individually. This is your opportunity to highlight anything that has not been raised before. MR. KOCHMAN: Good morning, your Honor. David Kochman representing Hubbell Incorporated Delaware and Progress Lighting. My really only issue is that the products that our companies make, one is exposure from fittings and the other is lighting fixtures, these are not products that are in any of the other cases. We're only in Chamblin. So our point is that we are extraordinarily prejudiced by being in the cases with everyone else. Not only that we're one defendant, but because we have a different product. And I'll add to the timing of the entire trial because we are going to have to go and put on a whole

46 defense. It's completely different than your more traditional products. Thank you. THE COURT: Fair point. MS. REGIS: Your Honor, Chauvron Regis. Your Honor, with regard to Dura Dyne, we feel that with regards to our case, there's some uniqueness. And some of the points, if your Honor will allow, that I'd like to make is first is the occupation. For example, Mr. MacMillan, in this case, he was a sheet metal worker. Unlike the other defendants, for example, I believe Mr. Brann was a steamfitter; Mr. Corsi was a carpenter; and Mr. Murphy a fireman; and Purville, mechanic. And I think that with regards to the occupation, there is a difference. In addition to that, there's also, with regards to the exposure, the allegations here is from flexible duct connectors, whereas the allegations with regards to the other plaintiffs that are added in this group deal with products such as gaskets, packing, boilers, pumps, valves, fire joints. And, essentially, coupling with the other defendants with regards to the timing piece, Dura Dyne essentially is going to be forced to sit through a trial with six other defendants -- sorry, five other defendants on matters that are essentially separate than

47 what its defense would be. There isn't a common work site. For example, the plaintiffs in this case indicated that these are all construction sites. It's not sufficient to say that they are construction sites and, therefore, they should be coupled together and consolidated because of what's being done at the construction site. What exactly is the exposure? And in this case, the exposure that's alleged for Mr. MacMillan with regard to Dura Dyne is the duct connectors. In addition to that, there is -- in plaintiffs' papers, they indicated that there's no secondhand exposure. Well, in our particular case, with regards to Dura Dyne, Mr. MacMillan indicates that there is secondhand exposure that he receives from the carpenters -- not Mr. MacMillan, but the fact witness. In addition to that, another difference with regards to our case in MacMillan was severed from the rest of the cases is that, unlike all the other plaintiffs, Mr. MacMillan was deceased at the time his deposition was held. The fact witness, Mr. Anderson, testified. So all of the evidence that the jury will be hearing in this case are all perception of what Mr. Anderson believes that Mr. MacMillan was exposed to. And that, in itself, is a different -- that, in itself, has

48 the case, or postures the case, in a different light unlike the other cases that are within this group. In addition to that, your Honor, with regards to discovery, unlike the other cases within the group that's proposed, there's still discovery that's outstanding in this case with regards to Dura Dyne. In addition to that, the discovery deposition was supposed to be completed by January,, and it wasn't. In fact, I believe this Court gave plaintiffs till February, to complete its deposition. And just for the record, the deposition was held on March th and March th, essentially three months after discovery was closed in this case, which that, in itself, prejudices my client, the two other clients that are in the MacMillan case. There's no identification. In fact, by the time the fact witness deposition concluded, it essentially left defense counsel with about a week to secure witnesses, expert reports of the like. With that, your Honor, we highly recommend that this Court take a look at the MacMillan case and sever it from the other five cases that its being proposed to be consolidated, your Honor. MR. MENCHINI: Richard Menchini. I represent Harris Corporation. I think your Honor noted that you had received

49 our affidavits, so I won't repeat everything. But we are one defendant in the Murphy case, which is part of the first group. Mr. Murphy, unfortunately, passed away recently, worked at several newspapers in the press rooms before he became a fireman. It's clearly the only case involving pressing equipment, which is what is alleged my client manufactured. And the type of equipment involved is not like any of the other in any of the other cases in that group, your Honor. MR. ARTER: Robert Arter, Wilson, Elser. First off, I believe you said that you received all of our papers, so I'm not sure you received a copy of our papers from New York Boiler. So if you don't have a copy -- THE COURT: Yes. I did mention that. MR. ARTER: Okay. Just wanted to make sure you've gotten it. Also, I believe that there is a request in the main brief, which was recited, in which they request that the three living plaintiffs be grouped. I am here to represent American Biltrite, which is a defendant in all three of those cases, and we did not join in that request that those three plaintiffs be grouped for trial. We believe that, based on the affidavits that we put before you, that those three cases are significantly different

50 0 enough. For example, I believe Mr. Corsi may have only been represented -- excuse me, involved in getting exposed from floor tile as a bystander rather than working on it himself as well as the times of exposure are significantly different than those plaintiffs. Also, I wish to speak with respect to plaintiffs' grouping in the other group just to point out that in the other grouping, Mr. Laino and Mr. Chamblin are alleging lung cancer whereas the other plaintiffs are alleging mesothelioma. I believe those diseases are sufficiently different enough to warrant not grouping them together. Thank you, your Honor, for your time. If you have any questions, I'll be happy to answer them. MR. LINDENMAN: Eric Lindenman again in the Chamblin case. Echoing what other counsel said, my client makes the exposure through fittings. And these are very unique, not used by any of the other four defendants in the second group. It's not something that your Honor reasonably described as being at all similar to the other types of exposures, which was in the Navy with boilers, with floor tile, with joint compound. Other of these plaintiffs -- one worked in the Brooklyn Navy Yard, one

51 with boilers in engine rooms, insulation on boilers, turbines, pumps and valves. None of these types of exposures occurred in the Chamblin case. In the Chamblin case, he, essentially, with regards to exposure, was an electrician. And the types of equipment that would have been used by Mr. Chamblin, and which he alleged caused exposure, are what I would refer to as hard plastics. And, you know, typically where the asbestos, if it was contained there, would be encapsulated. On the other exposure claims is chipping some spray on fireproofing, which was incidental to his electrical work. It's not at all like the types of exposures alleged by the other plaintiffs. Also, with regard to State of the Arts, the exposure to Cooper Industries products were in the late '0s, early '0s, which I think is fundamentally different from State of the Arts later years. Also, your Honor, more clearly, the Malcolm factors are not bright-lined and they're used to help guide the Court and used in its discretion. I think that, at this point in NYCAL, the reference to similar plaintiffs firms is moot and irrelevant. By definition, trial groups in NYCAL are grouped by plaintiff so every case that your Honor has in a particular group that seeks consolidation by default

52 has the same plaintiff; that's why they're in a group before a particular judge. So to say that that's a factor to consider in favor of consolidation, I think is a red herring at this point, and that one factor, at least in NYCAL, needs to be shown the door. And I will leave it at that. Thank you. THE COURT: Last bite of the apple, Mr. Dymond, Mr. Fox. MR. DYMOND: Just a few brief things which may go back a little bit. The statement about a single defendants, well, I think everyone in the room knows that that's not necessarily accurate and that the entire list containing all of the defendants that are technically in these cases is not necessarily an accurate reflection of exactly who is and who is not in these cases -- MS. PEHUSH: Wait. I don't understand that. What does that mean? MR. DYMOND: What it means is that while defendants may technically be in the case, they're not -- there may not be exposure to those products or those premises, or whatever it may be, and they're not necessarily in the case. So it's not an accurate reflection to say that there's single defendants amongst these cases.