On August 10, 2018 a
Exhibit,Appendix
was filed
involving a dispute between
Sinar Seen
Individually And As Administrator Of The Estate Of Munir Seen, Deceased,
and
84 Lumber Company,
Aerco International, Inc.,
Algoma Hardwoods, Inc.,
Benjamin Moore & Company,
Bmce Inc., In Itself And As Successor To United Centrifugal Pump Co.,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Conwed Corporation,
Crane Co.,
Dap, Inc. N K A La Mirada Products, Inc.,
Foster Wheeler Energy Corporation,
General Electric Company,
Industrial Holdings Corporation F K A The Carborundum Company,
Ingersoll-Rand Company,
Ipa Systems, Inc.,
John Crane Inc.,
John Doe 1 Through John Doe 75,
Kaiser Gypsum Company, Inc.,
Kelly Moore Paint Company Inc.,
Mario & Dibono Fireproofing Corp.,
Mario & Dibono Plastering Co. Inc.,
Mckesson Corporation,
Metropolitan Life Insurance Company,
Pfizer, Inc.,
Sherwin-Williams Automotive Finishes Corporation,
Simpson Timber Company,
Tishman Construction Company,
Turner Construction Company,
Union Carbide Corporation,
U.S. Plywood A K A International Paper Company,
Weyerhaeuser Company,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018
NYSCEF DOC. NO. 624 INDEX
RECEIVED NO. E174717/2021
NYSCEF: 10/14/2022
FILED : NIAGARA COUNTY CLERK 05/03/2022 10 : 15 AM|
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022
At a Special Term of the Supreme
Court of the State of New York held
in and for the County of Erie at 25
Delaware Avenue, Part 19, Buffalo,
New York
PRESENT: Hon. Deborah A. Chimes, Justice Presiding
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
BENEDICT VIGLIETTA and TERRI VIGLIETTA,
Plaintiffs,
DECISION AND ORDER
v. Index No. E174717/2021
ASBESTOS CORPORATION, LIMITED, ET AL,
Defendants.
HEDMAN RESOURCES LIMITED,
Third-Party Plaintiff,
v.
MANVILLE PERSONAL INJURY TRUST,
Third-Party Defendant.
Hedman Resources Limited (Hedman), defendant and third-party plaintiff, brings this
motion pursuant to CPLR 4402 for judgment as a matter of law against, Manville Personal Injury
Settlement Trust (Manville Trust), a third-party defendant. (NYSEF 008). Plaintiff opposed the
motion and cross-moved (NYCEF 022) to preclude defendants from cross-examining and/or
utilizing plaintiffs causation experts to meet defendant's burden under CPLR Article 16 to
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NIAGARA624 COUNTY CLERK 05/03/2022 10 : 15
RECEIVED
INDEX NYSCEF:
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E174717/2021
AM|
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022
establish specific causation against any nonparty, bankrupt entity, or settled tortfeasor, and
prohibiting Manville Trust from appearing on the verdict sheet.
Hedman filed a third-party claim against the Manville Trust, pursuant to the 2002 Trust
Distribution Process (TDP). The Trust permitted defendants to bring third party claims against
Manville Trust for the purpose of contribution. In the TDP, Manville admitted liability and
agreed to be included on the verdict sheet for purposes of adjudicating liability at the trial.
Hedman asserts that Manville's admission of liability in the TDP allows for a directed judgment
as a matter of law against the Manville Trust without the need for any presentation of evidence at
trial.Hedman also asserts that Manville Trust should be on the verdict sheet relative to the
apportionment of fault.
Plaintiff asserts that regardless of Manville's admission, Hedman must establish a prima
facie case against Manville that they were negligent and must also establish proximate cause and
any equitable share of the damages. Additionally, plaintiff argues Hedman must establish the
negligence, proximate cause and equitable share of damages of all parties, nonparties and settled
parties to be listed on theverdict sheet pursuant to CPLR 1603.
The Manville Trust became operative in approximately November 1988, with the goal of
treating asbestos claims against Johns Manville equitably following their filing for bankruptcy.
Part of the Trust agreement (TDP) enjoined allasbestos litigation against Johns Manville,
requiring instead that plaintiffs sue the Manville Trust. The TDP allowed for third-party claims
to be asserted against the trust, and Manville agreed to be "a legally responsible tortfeasor under
proof"
applicable law, without the introduction of further (NYSCEF Doc. 43, section I(1)(c)).
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RECEIVED
INDEX NYSCEF:
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NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022
The fact that Manville may have admitted liability and agreed to be on the verdict sheet
for cases in which they are added as a third party does not legally determine that they will be on
the verdict sheet, or that Hedman would be entitled to a directed verdict. Regarding CPLR
Article 16 and General Obligations Law §15-108, Hedman has the "burden of establishing the
equitable shares attributable to the settling defendants". (Bigelow v Acands, Inc., 196 A.D. 2d
[1st
436, 438 Dept. 1993]; See also,Matter of New York City Asbestos Litig. [Idell), 164 A.D.3d
1128, 1129 [1st Dept. 2018]). Though the third-party defendant admitted liability,there is no
proof before the Court to make a determination as a matter of law that the admitted liabilitywas
a proximate cause of plaintiff's injury. Accordingly, Hedman's motion is denied.
Plaintiff cross-moved to preclude Hedman from cross-examining and/or utilizing
plaintiffs causation experts on defendant's burden of establishing apportionment of fault under
CPLR Article 16.
As previously noted, Hedman has the burden of proving that settled and/or nonparty
defendants caused or contributed to plaintiff's disease and damages. Though there are some
decisions that have precluded such testimony, (See, Matter of New York City Asbestos Litig.
[1't
[Idell] 164 AD 3d 1128 Dept 2018], where the lower court during trialprecluded defendant
from eliciting testimony from plaintiff's expert regarding exposure to asbestos in the alleged
tortfeasors'
nonparty products due to defendant's failure to establish specific causation against
the nonparty tortfeasors; see also, Miller v Hyster-Yale Materials Handling, Inc. (Sup Ct,
Albany County, [Gall] April 27, 2021 Index no 906347-190; Transcript page 25, after finding
the defense and plaintiff experts were legally inconsistent, the court found the defense was not
permitted to cross-examine plaintiff's expert with regard to Article 16 shares to prove itscase in
chief).
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NYSCEF
FILED DOC.
:
NO.
NIAGARA624 COUNTY CLERK 05 /03/2022 10 : 15
RECEIVED
INDEX NYSCEF:
NO. 10/14/2022
E174717/2021
AM)
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022
However, there are other cases where ithas been held that "[a]ny evidence as to the
culpability of [non-parties] was relevant under Article 1601(1) (citations omitted). The court's
error in precluding [defendants] from cross-examining two of the plaintiff's expert witnesses on
justice'
the issue deprived [defendants] of 'substantial (internal citations omitted) (See, Daniele v
[2nd
Pain Mgt. Ctr. of Long Is. 168 A.D. 3d 672, 676 Dept., 2019])
Here, defendant points to one of its expert disclosures to argue itsexpert will testify to
companies'
plaintiff's claimed exposure to each of the non-party products named in the expert
disclosure, and that plaintiff's cumulative exposure was a substantial contributing factor in
causing plaintiff's mesothelioma. This claimed position may or may not be legally inconsistent
with the plaintiff's expert. The Court cannot make such a determination on this motion however
since itdoes not have either of the expert's reports as exhibits to the motion or is reference made
and incorporated by NYCEF numbering into the motion.
Consequently, though the defendant has a right to cross-examine the plaintiff's experts on
allrelevant matters, itis not until the time of trialthat itcan be determined what testimony is
admissible during cross-examination and whether the defendant's expert will be taking an
inconsistent position. Accordingly, plaintiff's cross-motion is denied as premature.
WHEREFORE IT IS HEREBY,
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FILED
DOC. NO.
NIAGARA
624 COUNTY CLERK 05/03/2022 10:15
RECEIVED
INDEX NYSCEF:
NO. 10/14/2022
El74717/2021
: AM
NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022
ORDERED, Defendant's motion is denied; and itis hereby further
ORDERED, Plaintiff's cross-motion is denied as premature.
DATED: May 2, 2022
Buffalo, New York )
Hon. Deborah A. Chimes, J.S.C.
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Preview
FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018 NYSCEF DOC. NO. 624 INDEX RECEIVED NO. E174717/2021 NYSCEF: 10/14/2022 FILED : NIAGARA COUNTY CLERK 05/03/2022 10 : 15 AM| NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 At a Special Term of the Supreme Court of the State of New York held in and for the County of Erie at 25 Delaware Avenue, Part 19, Buffalo, New York PRESENT: Hon. Deborah A. Chimes, Justice Presiding STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA BENEDICT VIGLIETTA and TERRI VIGLIETTA, Plaintiffs, DECISION AND ORDER v. Index No. E174717/2021 ASBESTOS CORPORATION, LIMITED, ET AL, Defendants. HEDMAN RESOURCES LIMITED, Third-Party Plaintiff, v. MANVILLE PERSONAL INJURY TRUST, Third-Party Defendant. Hedman Resources Limited (Hedman), defendant and third-party plaintiff, brings this motion pursuant to CPLR 4402 for judgment as a matter of law against, Manville Personal Injury Settlement Trust (Manville Trust), a third-party defendant. (NYSEF 008). Plaintiff opposed the motion and cross-moved (NYCEF 022) to preclude defendants from cross-examining and/or utilizing plaintiffs causation experts to meet defendant's burden under CPLR Article 16 to 1 of 5 1 of 5 FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018 NYSCEF FILED DOC. : NO. NIAGARA624 COUNTY CLERK 05/03/2022 10 : 15 RECEIVED INDEX NYSCEF: NO. 10/14/2022 E174717/2021 AM| NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 establish specific causation against any nonparty, bankrupt entity, or settled tortfeasor, and prohibiting Manville Trust from appearing on the verdict sheet. Hedman filed a third-party claim against the Manville Trust, pursuant to the 2002 Trust Distribution Process (TDP). The Trust permitted defendants to bring third party claims against Manville Trust for the purpose of contribution. In the TDP, Manville admitted liability and agreed to be included on the verdict sheet for purposes of adjudicating liability at the trial. Hedman asserts that Manville's admission of liability in the TDP allows for a directed judgment as a matter of law against the Manville Trust without the need for any presentation of evidence at trial.Hedman also asserts that Manville Trust should be on the verdict sheet relative to the apportionment of fault. Plaintiff asserts that regardless of Manville's admission, Hedman must establish a prima facie case against Manville that they were negligent and must also establish proximate cause and any equitable share of the damages. Additionally, plaintiff argues Hedman must establish the negligence, proximate cause and equitable share of damages of all parties, nonparties and settled parties to be listed on theverdict sheet pursuant to CPLR 1603. The Manville Trust became operative in approximately November 1988, with the goal of treating asbestos claims against Johns Manville equitably following their filing for bankruptcy. Part of the Trust agreement (TDP) enjoined allasbestos litigation against Johns Manville, requiring instead that plaintiffs sue the Manville Trust. The TDP allowed for third-party claims to be asserted against the trust, and Manville agreed to be "a legally responsible tortfeasor under proof" applicable law, without the introduction of further (NYSCEF Doc. 43, section I(1)(c)). 2 2 of 5 2 of 5 FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018 NYSCEF FILED DOC. : NO. NIAGARA624 COUNTY CLERK 05/03/2022 10 : 15 RECEIVED INDEX NYSCEF: NO. 10/14/2022 E174717/2021 AM| NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 The fact that Manville may have admitted liability and agreed to be on the verdict sheet for cases in which they are added as a third party does not legally determine that they will be on the verdict sheet, or that Hedman would be entitled to a directed verdict. Regarding CPLR Article 16 and General Obligations Law §15-108, Hedman has the "burden of establishing the equitable shares attributable to the settling defendants". (Bigelow v Acands, Inc., 196 A.D. 2d [1st 436, 438 Dept. 1993]; See also,Matter of New York City Asbestos Litig. [Idell), 164 A.D.3d 1128, 1129 [1st Dept. 2018]). Though the third-party defendant admitted liability,there is no proof before the Court to make a determination as a matter of law that the admitted liabilitywas a proximate cause of plaintiff's injury. Accordingly, Hedman's motion is denied. Plaintiff cross-moved to preclude Hedman from cross-examining and/or utilizing plaintiffs causation experts on defendant's burden of establishing apportionment of fault under CPLR Article 16. As previously noted, Hedman has the burden of proving that settled and/or nonparty defendants caused or contributed to plaintiff's disease and damages. Though there are some decisions that have precluded such testimony, (See, Matter of New York City Asbestos Litig. [1't [Idell] 164 AD 3d 1128 Dept 2018], where the lower court during trialprecluded defendant from eliciting testimony from plaintiff's expert regarding exposure to asbestos in the alleged tortfeasors' nonparty products due to defendant's failure to establish specific causation against the nonparty tortfeasors; see also, Miller v Hyster-Yale Materials Handling, Inc. (Sup Ct, Albany County, [Gall] April 27, 2021 Index no 906347-190; Transcript page 25, after finding the defense and plaintiff experts were legally inconsistent, the court found the defense was not permitted to cross-examine plaintiff's expert with regard to Article 16 shares to prove itscase in chief). 3 3 of 5 3 of 5 FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018 NYSCEF FILED DOC. : NO. NIAGARA624 COUNTY CLERK 05 /03/2022 10 : 15 RECEIVED INDEX NYSCEF: NO. 10/14/2022 E174717/2021 AM) NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 However, there are other cases where ithas been held that "[a]ny evidence as to the culpability of [non-parties] was relevant under Article 1601(1) (citations omitted). The court's error in precluding [defendants] from cross-examining two of the plaintiff's expert witnesses on justice' the issue deprived [defendants] of 'substantial (internal citations omitted) (See, Daniele v [2nd Pain Mgt. Ctr. of Long Is. 168 A.D. 3d 672, 676 Dept., 2019]) Here, defendant points to one of its expert disclosures to argue itsexpert will testify to companies' plaintiff's claimed exposure to each of the non-party products named in the expert disclosure, and that plaintiff's cumulative exposure was a substantial contributing factor in causing plaintiff's mesothelioma. This claimed position may or may not be legally inconsistent with the plaintiff's expert. The Court cannot make such a determination on this motion however since itdoes not have either of the expert's reports as exhibits to the motion or is reference made and incorporated by NYCEF numbering into the motion. Consequently, though the defendant has a right to cross-examine the plaintiff's experts on allrelevant matters, itis not until the time of trialthat itcan be determined what testimony is admissible during cross-examination and whether the defendant's expert will be taking an inconsistent position. Accordingly, plaintiff's cross-motion is denied as premature. WHEREFORE IT IS HEREBY, 4 4 of 5 4 of 5 FILED: NEW YORK COUNTY CLERK 10/14/2022 10:34 AM INDEX NO. 190225/2018 NYSCEF FILED DOC. NO. NIAGARA 624 COUNTY CLERK 05/03/2022 10:15 RECEIVED INDEX NYSCEF: NO. 10/14/2022 El74717/2021 : AM NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 ORDERED, Defendant's motion is denied; and itis hereby further ORDERED, Plaintiff's cross-motion is denied as premature. DATED: May 2, 2022 Buffalo, New York ) Hon. Deborah A. Chimes, J.S.C. 5 5 of 5 5 of 5