On November 21, 2022 a EXHIBIT(S) - C (Motion #48) - Exhibit C - Judge Chimes Decision was filed involving a dispute between Hanora Sarro, Mark Sarro, and Arvinmeritor, Inc., Individually And As Successor To Rockwell International, Bucyrus International Inc., Bwdac Inc F K A Bwd Automotive Corp, Carlisle Industrial Brake & Friction, Carlisle Motion Control Industries, Inc., Case Corporation, Caterpillar Inc., Caterpillar Industrial Inc., Individually And As Successor To Towmotor Corporation, Clark Equipment Company, Continental Motors Inc, Continental Motors Inc F K A Teledyne Continental Motors Inc Individually And As Successor To Continental Motors Inc And Continental Motors Company, Crown Equipment Corporation, Cummins Engine Company, Inc., Dana Companies, Llc F K A Dana Corporation, Individually And As Successor To Warner Electric Brake & Clutch Company And Cutler-Hammer Inc., Eaton Corporation, Individually And Now Known As Eaton Electrical, Inc. And As Successor To The Vickers Pump Company And Cutler-Hammer, Inc. And Waterbury Pump, Eis, Inc., Electrolux Home Products Inc Individually And As Successor To White Consolidated Industries Gibson White Hercules Engines Hercules Motor Company Hupp Corp Blaw Knox Company, Euclid-Hitachi Heavy Equipment Inc., Federal Mogul Asbestos Personal Injury Trust As Successor To Felt Products Manufacturing Co, Fenner-America Successor By Merger To Fenner, Inc., A Delaware Corporation, Ford Motor Company, Freightliner Corporation, Individually And As Successor To Western Star Trucks, Genuine Parts Company, Hercules Manufacturing Inc, Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp. And Lull, Husqvarna Professional Products, Inc., Hyster-Yale Materials Handling, Inc., Jlg Industries, Inc. Individually And As Successor To Lull, Joy Global, Inc., Joy Global Surface Mining, Individually And As Successor To Beloit, Kelsey-Hayes Company, Individually And As Successor In Interest To Fruehauf Corp., Kion North America Corporation, Komatsu America Corp., Komatsu Forest Llc Individually And As Successor To Valmet And Sisu And Partek And Clark, Kone, Inc., Individually And As Successor To Montgomery Elevator, Link-Belt Construction Equipment Company, Lucas Varity Automotive Holdings Company, Individually And As Successor To Massey Ferguson, Mack Trucks, Inc. Individually And As Successor To Brockway, Mccord Corporation, Mccord Inc, Metropolitan Life Insurance Company, Morse Tec Llc, F K A Borgwarner Morse Tec Llc And Successor-By-Merger To Borg-Warner Corporation, Nacco Materials Handling Group, Inc. Individually And As Successor-In-Interest To Hyster Company And As Successor-In-Interest To Yale Materials Handling Corp., Navistar, Inc., New York Air Brake Llc, Otis Elevator Company, Perkins Engines, Inc., Pneumo Abex Corporation, Pneumo-Abex Llc, Individually And As Successor To Abex Corporation, A Delaware Corporation, Reddaway Manufacturing Co., Inc., Rockwell Automation, Inc. Individually And As Successor To Allen Bradley, Timken Heating Business And S. Co., Inc. F K A Scaife Company, As Successor In Interest To Rockwell Spring & Axle Companys Timken Silent Automatic Division, Scan-Pac Mfg., Inc., Spx Corporation Individually And As Successor To General Signal Corporation And New York Air Brake, Standard Motor Products, Inc., Individually And As Successor To Eis, Stoughton Trailers, Stricker Trailers Llc, Suzuki Motor Of America, Inc., Technify Motor Usa Inc Individually And As Successor To Teledyne Continental Motors Inc F K A Continental Motors Inc And Continental Motors Company, Teledyne Technologies Inc Individually And As Successor To Teledyne Continental Motors Inc F K A Continental Motors Inc Continental Motors Company, Terex American Crane Corp., Terex Corporation Individually And As Successor In Interest To Terex American Crane, American Hoist & Derrick, American Crane Division, Amhoist, Amdura Corporation And American Crane Corporation, Terex Cranes Wilmington, Inc., Terex Usa Llc, Trailmobile Parts & Service Corporation, In Its Own Right And As Successor In Interest To Trailmobile Trail Corporation, Tvh Parts Co., Individually And As Successor To Intrupa, Twin Disc, Inc., Union Carbide Corporation, Utility Trailer Manufacturing Company, Volvo Construction Equipment North America, Inc., Individually And As Successor-In-Interest To Euclid, Inc., Volvo Trucks North America Inc Ind And As Successor To White Consolidated Industries And Diamond Reo And White Motors Hercules Engines And Hercules Motors, Volvo Trucks North America, Inc., Individually And As Successor To White Consolidated Industries And Diamond Reo, Wabash National Trailer Centers, Inc., Western Auto Supply Company, White Engines Inc, Yamaha Motor Corporation, Usa,, for Torts - Asbestos in the District Court of Albany County.
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WV = D ANY OUN Kk Oo: INDEX NO. 908796-22 NYSCEF BOC. NO. 585 RECEIVED NYSCEF: 01/22/2024 EXHIBIT C INDBRENON0O8 1986698022 (FILED: BRBENZOUNUNTVLERRRALDITZ292024 10955 FMAM NYSCEF DOC. NO. 285 RECEIVED NYSCEF: 01/22/2023 OUN WV INDEX NO. E174717/2021 NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 Ata Special Term of the Supreme Court of the State of New Y ork held in and for the County of Erie at 25 Delaware Avenue, Part 19, Buffalo, New Y ork PRESENT: Hon. Deborah A. Chimes, Justice Presiding STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA --- a BENEDICT VIGLIETTA and TERRI VIGLIETTA, Plaintiffs, DECISION AND ORDER Vv Index No. E174717/2021 ASBESTOS CORPORATION, LIMITED, ET AL, Defendants. -- aa HEDMAN RESOURCES LIMITED, Third-Party Plaintiff, Vv MANVILLE PERSONAL INJURY TRUST, Third-Party Defendant. --- a 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. (NY SEF 008). Plaintiff opposed the motion and cross-moved (NY CEF 022) to preclude defendants from cross-examining and/or utilizing plaintiffs causation experts to meet defendant’s burden under CPLR Article 16 to lof 5 INDBRENON0O8 1986698022 (FILED: BRBENZOUNUNTVLERRRALDITZ292024 10955 FMAM NYSCEF DOC. NO. 285 RECEIVED NYSCEF: 01/22/2023 OUN WV INDEX NO. E174717/2021 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 the verdict 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 all asbestos 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 applicable law, without the introduction of further proof’ (NYSCEF Doc. 43, section I(1)(c)). 2o0f 5 INDBRENON0O8 1986698022 (FILED: BRBENZOUNUNTVLERRRALDITZ292024 10955 FMAM NYSCEF DOC. NO. 285 RECEIVED NYSCEF: 01/22/2023 r= OUN D: WV INDEX NO. E174717/2021 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”. (Bigelowv Acands, Inc., 196 A.D. 2d 436, 438 [1% 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 liability was 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. [Idell] 164 AD 3d 1128 [1% Dept 2018], where the lower court during trial precluded defendant from eliciting testimony from plaintiffs expert regarding exposure to asbestos in the alleged nonparty tortfeasors’ products due to defendant’s failure to establish specific causation against the nonparty tortfeasors; see also, Millerv 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 its case in chief). 3 0f 5 INDBRENON0O8 1986698022 (FILED: BRBENZOUNUNTVLERRRALDITZ292024 10955 FMAM NYSCEF DOC. NO. 285 RECEIVED NYSCEF: 01/22/2023 = ARA OUN aK WV INDEX NO. E174717/2021 0: NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 However, there are other cases where it has 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 the issue deprived [defendants] of ‘substantial justice’ (internal citations omitted) (See, Danidev Pain Mgt. Ctr. of Long Is. 168 A.D. 3d 672, 676 [2"4 Dept., 2019]) Here, defendant points to one of its expert disclosures to argue its expert will testify to plaintiff’s claimed exposure to each of the non-party companies’ 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 it does not have either of the expert’s reports as exhibits to the motion or is reference made and incorporated by NY CEF numbering into the motion. Consequently, though the defendant has a right to cross-examine the plaintiffs experts on all relevant matters, it is not until the time of trial that it can be determined what testimony is admissible during cross-examination and whether the defendant’s expert will be taking an inconsistent position. Accordingly, plaintiffs cross-motion is denied as premature. WHEREFORE IT IS HEREBY, 4o0f 5 INDBRENON0O8 1986698022 (FILED: BRBENZOUNUNTVLERRRALDITZ292024 10955 FMAM NYSCEF DOC. NO. 285 RECEIVED NYSCEF: 01/22/2023 = ARA OUN aK WV INDEX NO. E174717/2021 0: NYSCEF DOC. NO. 440 RECEIVED NYSCEF: 05/02/2022 ORDERED, Defendant’s motion is denied; and it is hereby further ORDERED, Plaintiff's cross-motion is denied as premature. DATED: May 2, 2022 Buffalo, New Y ork o 5 of 5