On April 06, 2022 a
Exhibit,Appendix
was filed
involving a dispute between
Bradford Brett,
Linda Johnson-Brett,
and
A.O. Smith Corporation.,,
Avon Products, Inc.,,
Bird Incorporated,,
Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,,
Bristol-Myers Squibb Company,
Burnham Holdings Llc,
Burnham, Llc, Individually And As Successor To Burnham Corporation,,
Carrier Corporation,,
Chanel, Inc.,,
Clinique Laboratories, Llc,,
Colgate Palmolive Company,
Compudyne Corporation, Individually And As Successor To York-Shipley,
Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,,
Coty, Inc.,,
Crane Co.,,
Crown Boiler Co.,,
Dap, Inc.,,
Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,,
Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,,
Estee Lauder, Inc.,,
Estee Lauder International, Inc.,,
Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,,
Friend Lumber Company Of Lowell,,
General Electric Company,,
Goulds Pumps, Inc.,,
Grinnell Llc,,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,,
Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,,
Kaiser Gypsum Company, Inc.,,
Keeler-Dorr-Oliver Boiler Company,,
Macys, Inc.,,
Mineral And Pigment Solutions, Inc., F K A Whittaker, Clark & Daniels, Inc.,,
Minnesota Mining & Manufacturing Company, A K A 3M Company,,
New Yorker Boiler Co., Inc.,,
Paramount Global F K A Viacomcbs, Inc. F K A 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,,
Parfums De Couer Ltd,
Pecora Corp.,,
Pfizer, Inc., Individually And As Successor To Coty Inc.,,
Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,,
Rheem Manufacturing Co., Rudd Water Heater Division,,
R.W. Beckett Corp.,,
Schneider Electric Usa, Inc., Formerly Known As Square D Company,
Slant Fin Corporation,,
Sos Products Co. Inc.,,
Spirax Sarco, Inc., Individually And As Successor To Sarco Company,,
Union Carbide Corporation,,
Weil Mclain, A Division Of The Marley Wylain Company,,
Whittaker, Clark & Daniels, Inc.,,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM INDEX NO. E2022002698
NYSCEF DOC. NO. 605 RECEIVED NYSCEF: 03/22/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3791581
Book Page CIVIL
Return To: No. Pages: 36
VIRGINIA PAULA SQUITIERI
One Battery Park Plaza Instrument: EXHIBIT(S)
28th Floor
New York, NY 10004 Control #: 202403220100
Index #: E2022002698
Date: 03/22/2024
JOHNSON-BRETT, LINDA Time: 5:28:47 AM
BRETT, BRADFORD
A.O. SMITH CORPORATION.,
AVON PRODUCTS, INC.,
BIRD INCORPORATED,
BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS,
INC., as successor in interest to WHITTAKER, CLARK &
DANIELS, INC.,
BURNHAM, LLC, individually and as successor to BURNHAM
CORPORATION,
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202403220100 Index #
INDEX : E2022002698
NO. E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
NYSCEF DOC. NO. 605 RECEIVED NYSCEF: 03/22/2024
EXHIBIT 96
202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT 33 HON. CHARLES F. PALMER, JUDGE
CONSOLIDATED PROCEEDINGS )
SPECIAL TITLE (RULE 3.550) )
)
LAOSD ASBESTOS CASES ) JCCP Case No. 4674
)
PHILIP JOHN DEPOIAN AND JULIE )
DEPOIAN, )
) Case No. BC607152
Plaintiffs, )
)
vs. )
)
AMERICAN INTERNATIONAL INDUSTRIES, )
INC., et al., )
) PAGES 1 TO 127
Defendants. )
___________________________________)
TRIAL DAY 13 - A.M. SESSION
REPORTER'S TRANSCRIPT OF PROCEEDINGS
SEPTEMBER 27, 2016
APPEARANCES:
For the Plaintiffs: SIMON GREENSTONE PANATIER BARTLETT, PC
BY: STUART PURDY, ESQ.
3780 Kilroy Airport Way, Suite 540
Long Beach, California 90806
(562) 590-3400
spurdy@sgpblaw.com
SIMON GREENSTONE PANATIER BARTLETT, PC
BY: JAY STUEMKE, ESQ.
3232 McKinney Avenue, Suite 610
Dallas, Texas 75204
(214) 276-7680
jstuemke@sgpblaw.com
(Appearances Continued Next Page)
REPORTED BY: DEBORAH MORIN, CSR NO. 11558
OFFICIAL REPORTER PRO TEMPORE
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202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
2 (Page 1)
1 APPEARANCES OF COUNSEL: (Continued) 1 MAS TER INDEX
2 2 SEPTEMBER 27, 2016; A.M. SESSION
3 For the Defendant Colgate-Palmolive as successor-in-interest
to the Mennen Company: 3
4 4
5 WFBM, LLP 5 CHRONOLOGICAL INDEX OF WITNESSES
BY: KURT PUTNAM, ESQ. 6 MOLINE, JACQUELINE - CALLED BY THE PLAINTIFF PAGE
6 601 Montgomery Street, Ninth Floor
San Francisco, California 94111
7 DIRECT EXAMINATION BY MR. STUEMKE 28
7 (415) 781-7072 CROSS-EXAMINATION BY MR. BECKER 94
kputnam@wfbm.com 8 CROSS-EXAMINATION BY MR. COSMICH 116
8 REDIRECT-EXAMINATION BY MR. STUEMKE 122
WFBM, LLP 9
9 BY: KAREN P. AGELSON, ESQ.
One City Boulevard West, Fifth Floor 10
10 Orange, California 92868 11
(714) 634-2522 12 EXHIB ITS
11 kagelson@wfbm.com 13 EXHIBIT MARKED RECEIVED
12 CRAVATH, SWAINE & MOORE, LLP
BY: DAVID R. MARRIOTT, ESQ. FOR I.D. IN EVD.
13 TIMOTHY G. CAMERON, ESQ. 14
825 Eighth Avenue A - Article entitled "Mortality 109
14 New York, New York 10019 15 Study of Talc Miners and
(213) 474-1430 Millers"
15 damarriott@cravath.com
tcameron@cravath.com 16
16 vlavely@cravath.com B - Article entitled "An Update of 111
17 For the Defendant Cyprus Amax Minerals: 17 a Mortality Study of Talc
18 ALSTON & BIRD, LLP Miners and Millers in Italy
BY: ROGER A. CERDA, ESQ. 18
19 333 South Hope Street, 17th Floor
Los Angeles, California 90071 95 - Reference list 94
20 (213) 576-1156 19
roger.cerda@alston.com 1036 - Curriculum Vitae of Dr. Moline 32
21 20
22 ALSTON & BIRD, LLP
BY: JOSHUA L. BECKER, ESQ. 21
23 One Atlantic Center 22
1201 West Peachtree Street 23
24 Atlanta, Georgia 30309 24
(404) 881-4732 25
25 josh.becker@alston.com
26 26
27 27
28 28
Page 1
1 APPEARANCES OF COUNSEL: (Continued) 1 CASE NAME: DEPOIAN VS. AMERICAN INTERNATIONAL
2 2 CASE NUMBER: BC607192
3 For the Defendant American International Industries, Inc.:
4 BRADLEY & GMELICH, LLP 3 LOS ANGELES, CALIFORNIA SEPTEMBER 27, 2016
BY: ROBERT A. CROOK, ESQ. 4 DEPARTMENT 33 HON. CHARLES F. PALMER
5 SHIRLEY R. SULLINGER, ESQ.
700 North Brand Boulevard, 10th Floor 5 REPORTER: DEBORAH MORIN, CSR NO. 11558
6 Glendale, California 91203 6 APPEARANCES: (AS HERETOFORE MENTIONED.)
(818) 243-5200 7 TIME: 8:39 A.M.
7 rcrook@bglawyers.com
ssullinger@bglawyers.com 8
8 9 (The following proceedings were heard
9 For the Defendant Whitaker, Clark & Daniels:
10 FOLEY & MANSFIELD, PLLP 10 outside the presence of the jury:)
BY: KHALED TAQI-EDDIN, ESQ. 11
11 DOUGLAS G. WAH, ESQ.
JOSH S. SULLIVAN, ESQ. 12 THE CLERK: Come to order. Court is now in
12 300 Lakeside Drive, Suite 400 13 session.
Oakland, California 94612 14 THE COURT: Good morning. Please be seated.
13 (510) 590-9500
ktaqi@foleymansfield.com 15 We're back on the record in BC067192, Depoian
14 16 versus American International Industries, Inc. The
15 For the Defendant Shulton, Inc.:
16 COSMICH, SIMMONS & BROWN, PLLC 17 court observes that counsel for each of the parties is
BY: JOHN COSMICH, ESQ. 18 present.
17 LAKEYSHA GREER ISAAC, ESQ.
19 Appearances, please.
100 Vision Drive, Suite 200
18 Jackson, Mississippi 39211 20 MR. STUEMKE: Jay Stuemke and Stuart Purdy on
(601) 863-2100 21 behalf of the plaintiffs, Your Honor.
19 cos@cs-law.com
20 22 MR. BECKER: Josh Becker on behalf of
21 23 defendant Cyprus, Your Honor.
22
23 24 MR. COSMICH: John Cosmich and Lakeysha Isaacs
24 25 for Shulton, Inc.
25 26 MR. MARRIOTT: Good morning, Your Honor.
26
27 27 David Marriott for Colgate as successor to Mennen. With
28 28 me is Tim Cameron, Karen Agelson and Kurt Putnam.
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202403220100 IndexNO.
INDEX #: E2022002698
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NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
3 (Pages 2 to 5)
Page 2 Page 4
1 MR. TAQI-EDDIN: Good morning, Your Honor. 1 Instead of giving those at noon or 2:00 or at least
2 Khaled Taqi-Eddin on behalf of Whittaker, Clark & 2 giving me a half hour to respond, they were handed to
3 Daniels as well as Josh Sullivan. 3 the court at 4:25 to take for the weekend. I'm not sure
4 MS. SULLINGER: Good morning, Your Honor. 4 what else procedurally the plaintiffs could have done in
5 Shirley Sullinger for American International Industries. 5 that situation, Your Honor.
6 Mr. Crook is running late. 6 THE COURT: Well, somebody could have let the
7 THE COURT: Okay. I guess the first thing is 7 court know that you hadn't asserted your objections. I
8 what is the status relative to the Hubbard objections? 8 mean, basically I wasted five, six hours it appears.
9 MR. PURDY: Your Honor, we've -- we have a few 9 MR. PURDY: Well, Your Honor, I'm not --
10 of the exhibits that we'd like to argue. We've flagged 10 unlike some of the other transcripts where we did get a
11 many of them, but the important flags are three. So we 11 chance to respond and we revisited those and I think
12 need to -- when Your Honor has time, we can argue those 12 rehashed rulings and sometimes those rulings --
13 three exhibits. 13 THE COURT: I've learned of stipulations which
14 I'm also prepared, Your Honor -- and it 14 I've never heard of before this submission.
15 probably makes sense where we left off is we got the 15 MR. PURDY: No, I understand, Your Honor.
16 special instructions now, and we can probably run 16 What I'm suggesting is --
17 through those whenever Your Honor is ready. But we're 17 THE COURT: Okay. We're not advancing. Why
18 ready to argue those as well. 18 don't we address those since I suspect I'm going to have
19 THE COURT: Well, what is the issue? I mean I 19 some work.
20 received the transcripts from Hubbard. There's no 20 MR. PURDY: Yes, Your Honor. So the first one
21 indication there were any stipulations or agreements. I 21 that we have flagged is --
22 ruled on all of those objections. 22 THE COURT: Do I even have -- I don't think I
23 MR. PURDY: Well, I think, Your Honor, the 23 have a copy.
24 procedure with these page/lines is what Your Honor is 24 Ms. Faune, do you have the Hubbard deposition?
25 receiving is objections from counsel without seeing our 25 MR. STUEMKE: Maria, that was the one I gave
26 response, and much like we did with the Mennen -- well, 26 you at the end of the day yesterday. We did return the
27 with the Mennen exhibits, we had the chance, if you'll 27 courts copies for Your Honor.
28 recall, to respond to those objections. 28 THE CLERK: Yes, Your Honor.
Page 3 Page 5
1 If your Honor hasn't heard, our response to 1 THE COURT: This is just going to be exhibits
2 those objections are either orally or in writing, and so 2 or are we doing testimony?
3 that was the concern that we wanted to tee up. 3 MR. STUEMKE: Yes. There were three binders
4 And again, Your Honor, the product of Hubbard, 4 all related to Hubbard, and what we intended to argue
5 if you'll recall, this was supposed to be the live 5 this morning were just some of the exhibits.
6 witness. 6 THE COURT: Okay.
7 THE COURT: Don't you have some responsibility 7 MR. PURDY: Yes, Your Honor. As far as the
8 for seeing that the -- you're the party asking for 8 testimony goes, we'll stand on our initial designations
9 the -- that the deposition be read, and it appears 9 and Your Honor's rulings to their objections.
10 that -- don't you bear some responsibility for the fact 10 THE COURT: Okay. Why don't we go -- let's --
11 that it was an incomplete submission? 11 which exhibits?
12 MR. PURDY: Well, Your Honor, the submissions 12 And then also it was a little confusing. It
13 were handed to Your Honor at 4:25 on Friday. I think 13 took me a while to figure out that the tabs had nothing
14 what we've been doing is we submit and give the other 14 to do with the exhibit numbers. Tab 1 doesn't show up
15 side a chance to respond, and usually it takes, as 15 anywhere. Tab 10 is in fact Exhibit No. 27.
16 you've seen, a night and a week. With the threshold 16 MR. PURDY: I have the same problem, Your
17 motions they had 12 days. 17 Honor.
18 I'm not suggesting this is a pattern, but it 18 THE COURT: Okay. Which numbers are you going
19 has been from our side that we get stuff that's 19 to be using?
20 submitted to Your Honor without giving us a chance to 20 MR. PURDY: I'll start with the tab numbers.
21 respond. That's what happened. 21 So it's tab 10, Your Honor.
22 We gave those designations at 9:25 A.M. on 22 THE COURT: So that's Exhibit 27?
23 Thursday. I was told by Mr. Sullivan of Whittaker, 23 MR. PURDY: Correct. And the objection was
24 Clark & Daniels they were going to attempt to get those 24 sustained, and there was multiple -- well, I guess, they
25 that night, which was Thursday evening. It got caught 25 moved on multiple grounds, and all we have is the
26 up. I'm guessing with other defendants wanted to weigh 26 sustained. So I didn't see an authentication objection.
27 in. Those other defendants weighed in. They came into 27 So I suspect this either got sustained on an unduly
28 court with binders ready, color tabs, six copies. 28 prejudicial ground --
iDepo Reporters www.iDepoReporters.com 323.393.3768
202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
4 (Pages 6 to 9)
Page 6 Page 8
1 THE COURT: I think it's hearsay and 1 what I know.
2 foundation. 2 MR. PURDY: Right. So I'm not seeing here an
3 MR. PURDY: Okay. So here's what this is, 3 authentication objection nor is one being raised with
4 Your Honor. 4 the court. So I'm addressing hearsay.
5 So this is -- this is the analysis that 5 THE COURT: Hearsay, and the exception I
6 Whittaker, Clark & Daniels was performing. As you'll 6 gather is business record?
7 recall, I think the court has heard testimony. If not, 7 MR. PURDY: Yes, which they've just
8 you'll recall perhaps reading that in the Hubbard 8 acknowledged that this is a business record that meets
9 testimony is that -- 9 the hearsay exception.
10 THE COURT: But these WCD in the lower 10 THE COURT: Right. They don't have the
11 right-hand corner, it says WCD 004278. Is that -- is 11 authority to acknowledge that on behalf of Mennen.
12 that a production in this case? Is that a production in 12 MR. PURDY: Well, no. It's not Mennen's
13 some other case? 13 business record, Your Honor. This is a Whittaker, Clark
14 MR. PURDY: Counsel may have something to add. 14 & Daniels document.
15 MR. SULLIVAN: Your Honor, Whittaker has no 15 THE COURT: Right. But they can't just stand
16 objections to this particular exhibit for this case. It 16 up and say this is a business record. They can
17 appears to be a business record. It's not one of the 17 certainly waive it as to themselves.
18 CTFA records, so there's no issue about it again being 18 Isn't Mennen entitled to pursue its objection
19 maintained outside of our business records. And I 19 that it's hearsay and that it's not a business record?
20 believe in other depositions Mr. Hubbard has 20 MR. PURDY: Well, no, because Whittaker, Clark
21 acknowledged it to be a business record. So I do not 21 & Daniels, it's their business record. Of course it's
22 have an objection to this particular one. 22 not Mennen's business record.
23 These were joint defense objections, however. 23 THE COURT: Well, that's what I'm asking. Is
24 So there may be someone else who will offer them on 24 there any testimony from somebody at Whittaker, Clark &
25 behalf of their defendant. 25 Daniels that says this was kept in the ordinary course
26 MS. AGELSON: Yes, Your Honor. The objections 26 of business, et cetera?
27 that the court sustained were asserted by Colgate 27 MR. PURDY: Well, that's what they're
28 Mennen. In addition to all the objections here, I 28 acknowledging. Well, here's how we'll end this issue,
Page 7 Page 9
1 think -- I think stand as to Mennen. It's just not 1 Your Honor. It's going to be tedious, but they're
2 relevant, most of all, I think, because it doesn't 2 bringing a live witness, Mr. St. George, and so for any
3 address any products at issue, but also the court's 3 argument that's -- or any objection that's being
4 ruling on deposition Exhibit 18 from the Urbach-Ross 4 sustained on the grounds that that hasn't been worked
5 deposition I think excludes this document during this 5 up, we'll just take all those documents that they
6 deposition as well. 6 acknowledge what the witness is going to say that this
7 THE COURT: Excluded this same document? 7 is a Whittaker, Clark & Daniels document produced in
8 MS. AGELSON: At least as to Mennen. 8 discovery, is authentic, and kept in the regular course
9 THE COURT: So I've already ruled on this 9 of business since it's received. That's what they're
10 document? 10 telling me and they're telling the court that he's going
11 MS. AGELSON: I believe so, Your Honor, and I 11 to say.
12 don't have that with me. 12 If we want to reserve objections on that, I'm
13 MR. PURDY: Your Honor, you'll recall many of 13 fine. But we have to --
14 those Urbach-Ross objections were sustained on 14 THE COURT: Let me ask this question. If
15 authentication grounds, and we argued round and round 15 that's true, is Mennen going to put -- if they've got a
16 about the WCD stamp. Now we have the owner of the 16 live witness who's going to come in and lay the
17 document, Whittaker, Clark & Daniels, saying that this 17 foundations for the business records exception --
18 is indeed authentic and a business record and it's 18
19 reflected in the WCD stamp. 19 (Telephone interruption.)
20 THE COURT: But where is that statement by 20
21 Whittaker, Clark & Daniels found as to other defendants? 21 THE COURT: Okay. I guess my question to you
22 I mean is the only basis for authenticating 22 is we're going to have to go through this
23 this because it was found in the files of Whittaker, 23 document-by-document with the custodian or whoever this
24 Clark & Daniels or is there -- I guess counsel just made 24 live witness is, and that seems like an awful lot of
25 reference to some testimony by Mr. Hubbard identifying 25 hoops to put the court through if in fact this testimony
26 this as a business record of Whittaker, Clark & Daniels. 26 is going to lay the business records foundation.
27 MR. PURDY: Right. 27 MS. AGELSON: Actually, Your Honor, when
28 THE COURT: I'm a little confused in terms of 28 plaintiffs were telling us yesterday the remainder of
iDepo Reporters www.iDepoReporters.com 323.393.3768
202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
5 (Pages 10 to 13)
Page 10 Page 12
1 the case, they actually did not mention this witness. 1 objections.
2 So I am not -- maybe now they are bringing him, but he 2 Plaintiff's counsel said this is relevant
3 wasn't mentioned yesterday in terms of all the rest of 3 because it's about 1615 testing, which I don't -- I'm
4 the witnesses they had. So I'm not sure when he's 4 trying to remember all of the evidence in this case so
5 coming. 5 far, but I haven't heard any evidence about 1615 testing
6 MR. PURDY: He's coming. And I've told the 6 that would make this relevant.
7 court Mr. St. George is their live witness. I told 7 So plaintiffs' counsel keeps talking about
8 counsel who is offering Mr. St. George that probably the 8 this evidence, and I just have -- either haven't heard
9 only reason we're going to need him is to go through the 9 it or don't hear that it's coming in. So I just -- I'm
10 tedious exercise of proving up documents, which Mennen 10 just concerned that there's just a lot of, I think,
11 is forcing us to do. 11 assumptions being made about the evidence in this case
12 We have an agreement with the party who is 12 that haven't been -- you know, we just haven't seen.
13 producing the document. So if Mennen wants to play 13 But we do, in addition --
14 this -- and this is a game. If they want to play this 14 THE COURT: How many of these documents are we
15 game that this is not a business record even though the 15 going to have to do?
16 party who has the document is saying it is, that's fine, 16 MR. PURDY: Just three.
17 Your Honor. But I'm telling you exactly -- the court 17 THE COURT: I'm sorry. That was rude of me.
18 and Mennen exactly what I'm going to ask this witness. 18 MS. AGELSON: No, that's fine.
19 Sir, have you seen this document before? Yes. 19 MR. PURDY: So, Your Honor, it's just three
20 What is this document? This is a testing of talc, which 20 that we've tabbed for Your Honor today, and then to the
21 is highly relevant. The argument was it's not relevant. 21 extent there's any CTFA docs that are Whittaker, Clark &
22 Of course it's relevant. 22 Daniels docs, we'll address those, but as far as the
23 THE COURT: The testing of whose talc? 23 deposition goes, there's just three of these.
24 MR. PURDY: It's th4 testing of 1615 Italian 24 There's three of them to answer your question.
25 talc, which is the talc used in Mennen products. So of 25 Tab 10, Tab 13 and Tab 14. I'm sorry. So there's four,
26 course it's relevant, Your Honor. 26 Your Honor. Tab 10, Tab 13, Tab 14 and Tab 20.
27 But I'm going to ask the witness, "Is this a 27 THE COURT: What do we do about this document
28 true and correct copy of a record that you keep in the 28 that I can't read? Tab 13.
Page 11 Page 13
1 regular course of business?" And I'm told he's going to 1 MR. PURDY: We have a more legible copy of the
2 say yes. 2 document that we can provide that was produced in this
3 If we have to do that, we will. But I don't 3 case, Your Honor.
4 know how this point we're still hearing an argument I 4 MR. STUEMKE: And, Your Honor, I will state it
5 think from Mennen this may not even be authentic. 5 is still difficult to read, but you can make out the
6 THE COURT: If there was an authentication 6 language, and this is a very important document. This
7 objection, it's been waived because it doesn't show on a 7 is an internal Whittaker, Clark & Daniels document
8 summary of objections. I don't think you've got 8 discussing a visit that they and other companies had
9 authentication. You may have, but that doesn't answer 9 with FDA shortly after the 1972 Lewin report was made --
10 the hearsay question. 10 was communicated to them.
11 And the issue -- I don't want to go round and 11 This is produced by them in this case. It has
12 round if we're going to do this, but if we're going to 12 a WCD Depoian Bates stamp on it. It is therefore part
13 have to go through that process, I guess we have to go 13 of the stipulation. It's a business record of theirs.
14 through that process. I think it's not really terribly 14 They do have the authority to stipulate to their own
15 fair to the jurors. 15 business records, and we believe this is admissible. So
16 MS. AGELSON: And, Your Honor, we're not -- 16 this was deposition Exhibit 30. Deposition Exhibit 30.
17 you know, we're not playing games here. We just want 17 So the witness laid the foundation. I don't
18 evidence to be admitted in a procedurally proper manner. 18 recall whether that testimony was stricken by Your Honor
19 THE COURT: I understand. And I don't think 19 or not. But to the extent it was stricken, I think it
20 anything in your conduct to date in this trial, speaking 20 should be allowed. But this is a Whittaker, Clark &
21 of each of you personally, suggests to me that you 21 Daniels document that's highly relevant. It's not
22 would -- you're playing games, but I'm just -- but I'm 22 hearsay and should be admitted.
23 asking at this point is it appears the foundation can be 23 MR. SULLIVAN: Your Honor, if I may. I don't
24 laid. And you're saying, well, we've never seen the 24 believe that Mr. Hubbard was shown that copy that was
25 witness before. 25 alluded to by Mr. Stuemke. In fact, he was shown the
26 MS. AGELSON: We've never seen the deposition. 26 illegible version that is before the court now, and his
27 As I said, plaintiffs didn't even mention he was coming. 27 testimony was based on that illegible version.
28 He just said this is relevant -- because we have other 28 So I think the objections were properly
iDepo Reporters www.iDepoReporters.com 323.393.3768
202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
6 (Pages 14 to 17)
Page 14 Page 16
1 sustained. As well with respect to this document, there 1 MR. PURDY: So I've identified, Your Honor,
2 is no stipulation with it being a business record, and 2 the documents, and I'll just identify them for clarity
3 on top of it, they're trying to bootstrap some 3 for everyone's sake. So it's Exhibit 10.
4 inadmissible hearsay that comes from Dr. Lewin's 4 THE COURT: Tab 10 or Exhibit 10?
5 findings into this letter. So for both reasons I 5 MR. PURDY: Tab 10, Exhibit No. 27. Again,
6 believe this should be sustained. 6 our -- if you want our reasoning, it's going to be the
7 THE COURT: Are the author and recipient 7 same that these are authenticated business records of
8 both -- 8 Whittaker, Clark & Daniels. I can explain why they're
9 MR. SULLIVAN: Correct. 9 relevant if we want to take another crack at it.
10 THE COURT: -- Whittaker, Clark & Daniels 10 But the next one is Tab 13, Exhibit 30.
11 persons. So as to you, isn't it a party admission? 11 Again, authenticated business record and an admission by
12 MR. SULLIVAN: Certainly it could be looked at 12 a party opponent which will overcome the hearsay
13 that way. The illegibility issue is something that I 13 objections.
14 don't think can be overcome by the fact that they 14 Tab 14, Exhibit 31, the only objections are
15 produced a more legible copy that was put before 15 hearsay and lack of foundation. This is again a
16 Mr. Hubbard in this Dallas deposition, which is the one 16 Whittaker, Clark & Daniels document, a letter to them
17 at issue here. The Depoian record is a different 17 which we believe is authentic, a business record, and
18 record. Same document but produced in a different 18 has a nonhearsay purpose of notice.
19 context. So it was no less legible to Mr. Hubbard when 19 And then the last one that we wanted to bring
20 he was examined on it. 20 before Your Honor in response to Your Honor's rulings, s
21 MS. AGELSON: Your Honor, I'd also further 21 Tab 20, deposition Exhibit 38, which again bears a WCD
22 assert -- and I haven't seen the document plaintiffs 22 Bates stamp which would be subject to authentic and
23 currently have. But if -- what I understand is that 23 business records and is a letter to Whittaker, Clark &
24 some portion of it is now legible while the rest of it 24 Daniels. So that would overcome the hearsay.
25 is not legible, I would assert that the entire document 25 THE COURT: From who?
26 needs to be legible in order to overcome this problem. 26 MR. PURDY: It's from Bristol Meyers. And
27 I mean you cannot -- I can't read -- I mean I 27 just for the record, we also have another version.
28 can't read anything on it. And I don't see how this 28 THE COURT: So it's 10, 13, 14, and 20?
Page 15 Page 17
1 document can be admitted just because they have found a 1 MR. PURDY: Correct, Your Honor.
2 copy that somehow is more legible for the portions they 2 THE COURT: Okay.
3 want admitted. The entire document needs to be legible. 3 MR. PURDY: And it also has, in terms of the
4 THE COURT: I can't rule on this at this point 4 hearsay in addition to the business record, it also has
5 because I don't have -- I mean it appears to me that 5 a nonhearsay purpose of notice.
6 these documents, with the possible exception of the 6 THE COURT: We'll argue these later, but it
7 illegible one, are admissible as to Whittaker, Clark & 7 seems to me if you're going to have to bring in your
8 Daniels. Apparently one of the representatives is going 8 line witness to lay foundation for it, I don't think
9 to testify it's a business record. They apparently 9 there's a good reason to do it twice.
10 don't dispute the fact that these others are business 10 MR. PURDY: I understand, Your Honor. If
11 records. We have the illegible document. That's in a 11 that's what Mennen will require, then hopefully we can
12 different category. 12 talk to them at a break and maybe we can save a half
13 But as to the documents where it's basically a 13 hour of everyone's life. But if we can't, we can't.
14 business record, you're entitled to assert that 14 THE COURT: It is 9:00. Is there anything
15 objection, but if there's going to be a live witness, 15 else we need to address? I haven't had a chance to look
16 the only question I read is if it's going to be a live 16 at the special jury instruction, so we may address those
17 witness who's going to come in and say yeah, this is the 17 after the jury is done at 4:30. It strikes me that what
18 first document I've looked at that did look like, you 18 I need is a clone.
19 know, a form agreement for writing down the results of 19 MR. PURDY: You and me both, Your Honor.
20 tests, on a prima facie showing it's made -- the 20 THE COURT: Are all of the defendants, other
21 business record exception applies. 21 than Whittaker, Clark & Daniels, asserting these
22 I'm just asking that you perhaps consider not 22 objections?
23 making us go through that exercise. 23 MR. COSMICH: Shulton is to a couple of these
24 MS. AGELSON: I appreciate that, Your Honor. 24 exhibits, particularly 30. I haven't seen the other
25 We do have other objections to the documents. So -- 25 two.
26 THE COURT: It's plaintiffs case. What do you 26 THE COURT: Okay. I just wanted to get some
27 want to do? At this point I don't have enough to find 27 sense -- I'm not going to vent on you. I just want to
28 the document is admissible. 28 get some sense of what we've got at this point.
iDepo Reporters www.iDepoReporters.com 323.393.3768
202403220100 IndexNO.
INDEX #: E2022002698
E2022002698
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM
TRIAL
NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024
DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al.
7 (Pages 18 to 21)
Page 18 Page 20
1 MR. BECKER: I think that's fair to assume, 1 fact, tracks Rutherford.
Preview
FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM INDEX NO. E2022002698 NYSCEF DOC. NO. 605 RECEIVED NYSCEF: 03/22/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3791581 Book Page CIVIL Return To: No. Pages: 36 VIRGINIA PAULA SQUITIERI One Battery Park Plaza Instrument: EXHIBIT(S) 28th Floor New York, NY 10004 Control #: 202403220100 Index #: E2022002698 Date: 03/22/2024 JOHNSON-BRETT, LINDA Time: 5:28:47 AM BRETT, BRADFORD A.O. SMITH CORPORATION., AVON PRODUCTS, INC., BIRD INCORPORATED, BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & DANIELS, INC., BURNHAM, LLC, individually and as successor to BURNHAM CORPORATION, Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202403220100 Index # INDEX : E2022002698 NO. E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM NYSCEF DOC. NO. 605 RECEIVED NYSCEF: 03/22/2024 EXHIBIT 96 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT 33 HON. CHARLES F. PALMER, JUDGE CONSOLIDATED PROCEEDINGS ) SPECIAL TITLE (RULE 3.550) ) ) LAOSD ASBESTOS CASES ) JCCP Case No. 4674 ) PHILIP JOHN DEPOIAN AND JULIE ) DEPOIAN, ) ) Case No. BC607152 Plaintiffs, ) ) vs. ) ) AMERICAN INTERNATIONAL INDUSTRIES, ) INC., et al., ) ) PAGES 1 TO 127 Defendants. ) ___________________________________) TRIAL DAY 13 - A.M. SESSION REPORTER'S TRANSCRIPT OF PROCEEDINGS SEPTEMBER 27, 2016 APPEARANCES: For the Plaintiffs: SIMON GREENSTONE PANATIER BARTLETT, PC BY: STUART PURDY, ESQ. 3780 Kilroy Airport Way, Suite 540 Long Beach, California 90806 (562) 590-3400 spurdy@sgpblaw.com SIMON GREENSTONE PANATIER BARTLETT, PC BY: JAY STUEMKE, ESQ. 3232 McKinney Avenue, Suite 610 Dallas, Texas 75204 (214) 276-7680 jstuemke@sgpblaw.com (Appearances Continued Next Page) REPORTED BY: DEBORAH MORIN, CSR NO. 11558 OFFICIAL REPORTER PRO TEMPORE iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 2 (Page 1) 1 APPEARANCES OF COUNSEL: (Continued) 1 MAS TER INDEX 2 2 SEPTEMBER 27, 2016; A.M. SESSION 3 For the Defendant Colgate-Palmolive as successor-in-interest to the Mennen Company: 3 4 4 5 WFBM, LLP 5 CHRONOLOGICAL INDEX OF WITNESSES BY: KURT PUTNAM, ESQ. 6 MOLINE, JACQUELINE - CALLED BY THE PLAINTIFF PAGE 6 601 Montgomery Street, Ninth Floor San Francisco, California 94111 7 DIRECT EXAMINATION BY MR. STUEMKE 28 7 (415) 781-7072 CROSS-EXAMINATION BY MR. BECKER 94 kputnam@wfbm.com 8 CROSS-EXAMINATION BY MR. COSMICH 116 8 REDIRECT-EXAMINATION BY MR. STUEMKE 122 WFBM, LLP 9 9 BY: KAREN P. AGELSON, ESQ. One City Boulevard West, Fifth Floor 10 10 Orange, California 92868 11 (714) 634-2522 12 EXHIB ITS 11 kagelson@wfbm.com 13 EXHIBIT MARKED RECEIVED 12 CRAVATH, SWAINE & MOORE, LLP BY: DAVID R. MARRIOTT, ESQ. FOR I.D. IN EVD. 13 TIMOTHY G. CAMERON, ESQ. 14 825 Eighth Avenue A - Article entitled "Mortality 109 14 New York, New York 10019 15 Study of Talc Miners and (213) 474-1430 Millers" 15 damarriott@cravath.com tcameron@cravath.com 16 16 vlavely@cravath.com B - Article entitled "An Update of 111 17 For the Defendant Cyprus Amax Minerals: 17 a Mortality Study of Talc 18 ALSTON & BIRD, LLP Miners and Millers in Italy BY: ROGER A. CERDA, ESQ. 18 19 333 South Hope Street, 17th Floor Los Angeles, California 90071 95 - Reference list 94 20 (213) 576-1156 19 roger.cerda@alston.com 1036 - Curriculum Vitae of Dr. Moline 32 21 20 22 ALSTON & BIRD, LLP BY: JOSHUA L. BECKER, ESQ. 21 23 One Atlantic Center 22 1201 West Peachtree Street 23 24 Atlanta, Georgia 30309 24 (404) 881-4732 25 25 josh.becker@alston.com 26 26 27 27 28 28 Page 1 1 APPEARANCES OF COUNSEL: (Continued) 1 CASE NAME: DEPOIAN VS. AMERICAN INTERNATIONAL 2 2 CASE NUMBER: BC607192 3 For the Defendant American International Industries, Inc.: 4 BRADLEY & GMELICH, LLP 3 LOS ANGELES, CALIFORNIA SEPTEMBER 27, 2016 BY: ROBERT A. CROOK, ESQ. 4 DEPARTMENT 33 HON. CHARLES F. PALMER 5 SHIRLEY R. SULLINGER, ESQ. 700 North Brand Boulevard, 10th Floor 5 REPORTER: DEBORAH MORIN, CSR NO. 11558 6 Glendale, California 91203 6 APPEARANCES: (AS HERETOFORE MENTIONED.) (818) 243-5200 7 TIME: 8:39 A.M. 7 rcrook@bglawyers.com ssullinger@bglawyers.com 8 8 9 (The following proceedings were heard 9 For the Defendant Whitaker, Clark & Daniels: 10 FOLEY & MANSFIELD, PLLP 10 outside the presence of the jury:) BY: KHALED TAQI-EDDIN, ESQ. 11 11 DOUGLAS G. WAH, ESQ. JOSH S. SULLIVAN, ESQ. 12 THE CLERK: Come to order. Court is now in 12 300 Lakeside Drive, Suite 400 13 session. Oakland, California 94612 14 THE COURT: Good morning. Please be seated. 13 (510) 590-9500 ktaqi@foleymansfield.com 15 We're back on the record in BC067192, Depoian 14 16 versus American International Industries, Inc. The 15 For the Defendant Shulton, Inc.: 16 COSMICH, SIMMONS & BROWN, PLLC 17 court observes that counsel for each of the parties is BY: JOHN COSMICH, ESQ. 18 present. 17 LAKEYSHA GREER ISAAC, ESQ. 19 Appearances, please. 100 Vision Drive, Suite 200 18 Jackson, Mississippi 39211 20 MR. STUEMKE: Jay Stuemke and Stuart Purdy on (601) 863-2100 21 behalf of the plaintiffs, Your Honor. 19 cos@cs-law.com 20 22 MR. BECKER: Josh Becker on behalf of 21 23 defendant Cyprus, Your Honor. 22 23 24 MR. COSMICH: John Cosmich and Lakeysha Isaacs 24 25 for Shulton, Inc. 25 26 MR. MARRIOTT: Good morning, Your Honor. 26 27 27 David Marriott for Colgate as successor to Mennen. With 28 28 me is Tim Cameron, Karen Agelson and Kurt Putnam. iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 3 (Pages 2 to 5) Page 2 Page 4 1 MR. TAQI-EDDIN: Good morning, Your Honor. 1 Instead of giving those at noon or 2:00 or at least 2 Khaled Taqi-Eddin on behalf of Whittaker, Clark & 2 giving me a half hour to respond, they were handed to 3 Daniels as well as Josh Sullivan. 3 the court at 4:25 to take for the weekend. I'm not sure 4 MS. SULLINGER: Good morning, Your Honor. 4 what else procedurally the plaintiffs could have done in 5 Shirley Sullinger for American International Industries. 5 that situation, Your Honor. 6 Mr. Crook is running late. 6 THE COURT: Well, somebody could have let the 7 THE COURT: Okay. I guess the first thing is 7 court know that you hadn't asserted your objections. I 8 what is the status relative to the Hubbard objections? 8 mean, basically I wasted five, six hours it appears. 9 MR. PURDY: Your Honor, we've -- we have a few 9 MR. PURDY: Well, Your Honor, I'm not -- 10 of the exhibits that we'd like to argue. We've flagged 10 unlike some of the other transcripts where we did get a 11 many of them, but the important flags are three. So we 11 chance to respond and we revisited those and I think 12 need to -- when Your Honor has time, we can argue those 12 rehashed rulings and sometimes those rulings -- 13 three exhibits. 13 THE COURT: I've learned of stipulations which 14 I'm also prepared, Your Honor -- and it 14 I've never heard of before this submission. 15 probably makes sense where we left off is we got the 15 MR. PURDY: No, I understand, Your Honor. 16 special instructions now, and we can probably run 16 What I'm suggesting is -- 17 through those whenever Your Honor is ready. But we're 17 THE COURT: Okay. We're not advancing. Why 18 ready to argue those as well. 18 don't we address those since I suspect I'm going to have 19 THE COURT: Well, what is the issue? I mean I 19 some work. 20 received the transcripts from Hubbard. There's no 20 MR. PURDY: Yes, Your Honor. So the first one 21 indication there were any stipulations or agreements. I 21 that we have flagged is -- 22 ruled on all of those objections. 22 THE COURT: Do I even have -- I don't think I 23 MR. PURDY: Well, I think, Your Honor, the 23 have a copy. 24 procedure with these page/lines is what Your Honor is 24 Ms. Faune, do you have the Hubbard deposition? 25 receiving is objections from counsel without seeing our 25 MR. STUEMKE: Maria, that was the one I gave 26 response, and much like we did with the Mennen -- well, 26 you at the end of the day yesterday. We did return the 27 with the Mennen exhibits, we had the chance, if you'll 27 courts copies for Your Honor. 28 recall, to respond to those objections. 28 THE CLERK: Yes, Your Honor. Page 3 Page 5 1 If your Honor hasn't heard, our response to 1 THE COURT: This is just going to be exhibits 2 those objections are either orally or in writing, and so 2 or are we doing testimony? 3 that was the concern that we wanted to tee up. 3 MR. STUEMKE: Yes. There were three binders 4 And again, Your Honor, the product of Hubbard, 4 all related to Hubbard, and what we intended to argue 5 if you'll recall, this was supposed to be the live 5 this morning were just some of the exhibits. 6 witness. 6 THE COURT: Okay. 7 THE COURT: Don't you have some responsibility 7 MR. PURDY: Yes, Your Honor. As far as the 8 for seeing that the -- you're the party asking for 8 testimony goes, we'll stand on our initial designations 9 the -- that the deposition be read, and it appears 9 and Your Honor's rulings to their objections. 10 that -- don't you bear some responsibility for the fact 10 THE COURT: Okay. Why don't we go -- let's -- 11 that it was an incomplete submission? 11 which exhibits? 12 MR. PURDY: Well, Your Honor, the submissions 12 And then also it was a little confusing. It 13 were handed to Your Honor at 4:25 on Friday. I think 13 took me a while to figure out that the tabs had nothing 14 what we've been doing is we submit and give the other 14 to do with the exhibit numbers. Tab 1 doesn't show up 15 side a chance to respond, and usually it takes, as 15 anywhere. Tab 10 is in fact Exhibit No. 27. 16 you've seen, a night and a week. With the threshold 16 MR. PURDY: I have the same problem, Your 17 motions they had 12 days. 17 Honor. 18 I'm not suggesting this is a pattern, but it 18 THE COURT: Okay. Which numbers are you going 19 has been from our side that we get stuff that's 19 to be using? 20 submitted to Your Honor without giving us a chance to 20 MR. PURDY: I'll start with the tab numbers. 21 respond. That's what happened. 21 So it's tab 10, Your Honor. 22 We gave those designations at 9:25 A.M. on 22 THE COURT: So that's Exhibit 27? 23 Thursday. I was told by Mr. Sullivan of Whittaker, 23 MR. PURDY: Correct. And the objection was 24 Clark & Daniels they were going to attempt to get those 24 sustained, and there was multiple -- well, I guess, they 25 that night, which was Thursday evening. It got caught 25 moved on multiple grounds, and all we have is the 26 up. I'm guessing with other defendants wanted to weigh 26 sustained. So I didn't see an authentication objection. 27 in. Those other defendants weighed in. They came into 27 So I suspect this either got sustained on an unduly 28 court with binders ready, color tabs, six copies. 28 prejudicial ground -- iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 4 (Pages 6 to 9) Page 6 Page 8 1 THE COURT: I think it's hearsay and 1 what I know. 2 foundation. 2 MR. PURDY: Right. So I'm not seeing here an 3 MR. PURDY: Okay. So here's what this is, 3 authentication objection nor is one being raised with 4 Your Honor. 4 the court. So I'm addressing hearsay. 5 So this is -- this is the analysis that 5 THE COURT: Hearsay, and the exception I 6 Whittaker, Clark & Daniels was performing. As you'll 6 gather is business record? 7 recall, I think the court has heard testimony. If not, 7 MR. PURDY: Yes, which they've just 8 you'll recall perhaps reading that in the Hubbard 8 acknowledged that this is a business record that meets 9 testimony is that -- 9 the hearsay exception. 10 THE COURT: But these WCD in the lower 10 THE COURT: Right. They don't have the 11 right-hand corner, it says WCD 004278. Is that -- is 11 authority to acknowledge that on behalf of Mennen. 12 that a production in this case? Is that a production in 12 MR. PURDY: Well, no. It's not Mennen's 13 some other case? 13 business record, Your Honor. This is a Whittaker, Clark 14 MR. PURDY: Counsel may have something to add. 14 & Daniels document. 15 MR. SULLIVAN: Your Honor, Whittaker has no 15 THE COURT: Right. But they can't just stand 16 objections to this particular exhibit for this case. It 16 up and say this is a business record. They can 17 appears to be a business record. It's not one of the 17 certainly waive it as to themselves. 18 CTFA records, so there's no issue about it again being 18 Isn't Mennen entitled to pursue its objection 19 maintained outside of our business records. And I 19 that it's hearsay and that it's not a business record? 20 believe in other depositions Mr. Hubbard has 20 MR. PURDY: Well, no, because Whittaker, Clark 21 acknowledged it to be a business record. So I do not 21 & Daniels, it's their business record. Of course it's 22 have an objection to this particular one. 22 not Mennen's business record. 23 These were joint defense objections, however. 23 THE COURT: Well, that's what I'm asking. Is 24 So there may be someone else who will offer them on 24 there any testimony from somebody at Whittaker, Clark & 25 behalf of their defendant. 25 Daniels that says this was kept in the ordinary course 26 MS. AGELSON: Yes, Your Honor. The objections 26 of business, et cetera? 27 that the court sustained were asserted by Colgate 27 MR. PURDY: Well, that's what they're 28 Mennen. In addition to all the objections here, I 28 acknowledging. Well, here's how we'll end this issue, Page 7 Page 9 1 think -- I think stand as to Mennen. It's just not 1 Your Honor. It's going to be tedious, but they're 2 relevant, most of all, I think, because it doesn't 2 bringing a live witness, Mr. St. George, and so for any 3 address any products at issue, but also the court's 3 argument that's -- or any objection that's being 4 ruling on deposition Exhibit 18 from the Urbach-Ross 4 sustained on the grounds that that hasn't been worked 5 deposition I think excludes this document during this 5 up, we'll just take all those documents that they 6 deposition as well. 6 acknowledge what the witness is going to say that this 7 THE COURT: Excluded this same document? 7 is a Whittaker, Clark & Daniels document produced in 8 MS. AGELSON: At least as to Mennen. 8 discovery, is authentic, and kept in the regular course 9 THE COURT: So I've already ruled on this 9 of business since it's received. That's what they're 10 document? 10 telling me and they're telling the court that he's going 11 MS. AGELSON: I believe so, Your Honor, and I 11 to say. 12 don't have that with me. 12 If we want to reserve objections on that, I'm 13 MR. PURDY: Your Honor, you'll recall many of 13 fine. But we have to -- 14 those Urbach-Ross objections were sustained on 14 THE COURT: Let me ask this question. If 15 authentication grounds, and we argued round and round 15 that's true, is Mennen going to put -- if they've got a 16 about the WCD stamp. Now we have the owner of the 16 live witness who's going to come in and lay the 17 document, Whittaker, Clark & Daniels, saying that this 17 foundations for the business records exception -- 18 is indeed authentic and a business record and it's 18 19 reflected in the WCD stamp. 19 (Telephone interruption.) 20 THE COURT: But where is that statement by 20 21 Whittaker, Clark & Daniels found as to other defendants? 21 THE COURT: Okay. I guess my question to you 22 I mean is the only basis for authenticating 22 is we're going to have to go through this 23 this because it was found in the files of Whittaker, 23 document-by-document with the custodian or whoever this 24 Clark & Daniels or is there -- I guess counsel just made 24 live witness is, and that seems like an awful lot of 25 reference to some testimony by Mr. Hubbard identifying 25 hoops to put the court through if in fact this testimony 26 this as a business record of Whittaker, Clark & Daniels. 26 is going to lay the business records foundation. 27 MR. PURDY: Right. 27 MS. AGELSON: Actually, Your Honor, when 28 THE COURT: I'm a little confused in terms of 28 plaintiffs were telling us yesterday the remainder of iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 5 (Pages 10 to 13) Page 10 Page 12 1 the case, they actually did not mention this witness. 1 objections. 2 So I am not -- maybe now they are bringing him, but he 2 Plaintiff's counsel said this is relevant 3 wasn't mentioned yesterday in terms of all the rest of 3 because it's about 1615 testing, which I don't -- I'm 4 the witnesses they had. So I'm not sure when he's 4 trying to remember all of the evidence in this case so 5 coming. 5 far, but I haven't heard any evidence about 1615 testing 6 MR. PURDY: He's coming. And I've told the 6 that would make this relevant. 7 court Mr. St. George is their live witness. I told 7 So plaintiffs' counsel keeps talking about 8 counsel who is offering Mr. St. George that probably the 8 this evidence, and I just have -- either haven't heard 9 only reason we're going to need him is to go through the 9 it or don't hear that it's coming in. So I just -- I'm 10 tedious exercise of proving up documents, which Mennen 10 just concerned that there's just a lot of, I think, 11 is forcing us to do. 11 assumptions being made about the evidence in this case 12 We have an agreement with the party who is 12 that haven't been -- you know, we just haven't seen. 13 producing the document. So if Mennen wants to play 13 But we do, in addition -- 14 this -- and this is a game. If they want to play this 14 THE COURT: How many of these documents are we 15 game that this is not a business record even though the 15 going to have to do? 16 party who has the document is saying it is, that's fine, 16 MR. PURDY: Just three. 17 Your Honor. But I'm telling you exactly -- the court 17 THE COURT: I'm sorry. That was rude of me. 18 and Mennen exactly what I'm going to ask this witness. 18 MS. AGELSON: No, that's fine. 19 Sir, have you seen this document before? Yes. 19 MR. PURDY: So, Your Honor, it's just three 20 What is this document? This is a testing of talc, which 20 that we've tabbed for Your Honor today, and then to the 21 is highly relevant. The argument was it's not relevant. 21 extent there's any CTFA docs that are Whittaker, Clark & 22 Of course it's relevant. 22 Daniels docs, we'll address those, but as far as the 23 THE COURT: The testing of whose talc? 23 deposition goes, there's just three of these. 24 MR. PURDY: It's th4 testing of 1615 Italian 24 There's three of them to answer your question. 25 talc, which is the talc used in Mennen products. So of 25 Tab 10, Tab 13 and Tab 14. I'm sorry. So there's four, 26 course it's relevant, Your Honor. 26 Your Honor. Tab 10, Tab 13, Tab 14 and Tab 20. 27 But I'm going to ask the witness, "Is this a 27 THE COURT: What do we do about this document 28 true and correct copy of a record that you keep in the 28 that I can't read? Tab 13. Page 11 Page 13 1 regular course of business?" And I'm told he's going to 1 MR. PURDY: We have a more legible copy of the 2 say yes. 2 document that we can provide that was produced in this 3 If we have to do that, we will. But I don't 3 case, Your Honor. 4 know how this point we're still hearing an argument I 4 MR. STUEMKE: And, Your Honor, I will state it 5 think from Mennen this may not even be authentic. 5 is still difficult to read, but you can make out the 6 THE COURT: If there was an authentication 6 language, and this is a very important document. This 7 objection, it's been waived because it doesn't show on a 7 is an internal Whittaker, Clark & Daniels document 8 summary of objections. I don't think you've got 8 discussing a visit that they and other companies had 9 authentication. You may have, but that doesn't answer 9 with FDA shortly after the 1972 Lewin report was made -- 10 the hearsay question. 10 was communicated to them. 11 And the issue -- I don't want to go round and 11 This is produced by them in this case. It has 12 round if we're going to do this, but if we're going to 12 a WCD Depoian Bates stamp on it. It is therefore part 13 have to go through that process, I guess we have to go 13 of the stipulation. It's a business record of theirs. 14 through that process. I think it's not really terribly 14 They do have the authority to stipulate to their own 15 fair to the jurors. 15 business records, and we believe this is admissible. So 16 MS. AGELSON: And, Your Honor, we're not -- 16 this was deposition Exhibit 30. Deposition Exhibit 30. 17 you know, we're not playing games here. We just want 17 So the witness laid the foundation. I don't 18 evidence to be admitted in a procedurally proper manner. 18 recall whether that testimony was stricken by Your Honor 19 THE COURT: I understand. And I don't think 19 or not. But to the extent it was stricken, I think it 20 anything in your conduct to date in this trial, speaking 20 should be allowed. But this is a Whittaker, Clark & 21 of each of you personally, suggests to me that you 21 Daniels document that's highly relevant. It's not 22 would -- you're playing games, but I'm just -- but I'm 22 hearsay and should be admitted. 23 asking at this point is it appears the foundation can be 23 MR. SULLIVAN: Your Honor, if I may. I don't 24 laid. And you're saying, well, we've never seen the 24 believe that Mr. Hubbard was shown that copy that was 25 witness before. 25 alluded to by Mr. Stuemke. In fact, he was shown the 26 MS. AGELSON: We've never seen the deposition. 26 illegible version that is before the court now, and his 27 As I said, plaintiffs didn't even mention he was coming. 27 testimony was based on that illegible version. 28 He just said this is relevant -- because we have other 28 So I think the objections were properly iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 6 (Pages 14 to 17) Page 14 Page 16 1 sustained. As well with respect to this document, there 1 MR. PURDY: So I've identified, Your Honor, 2 is no stipulation with it being a business record, and 2 the documents, and I'll just identify them for clarity 3 on top of it, they're trying to bootstrap some 3 for everyone's sake. So it's Exhibit 10. 4 inadmissible hearsay that comes from Dr. Lewin's 4 THE COURT: Tab 10 or Exhibit 10? 5 findings into this letter. So for both reasons I 5 MR. PURDY: Tab 10, Exhibit No. 27. Again, 6 believe this should be sustained. 6 our -- if you want our reasoning, it's going to be the 7 THE COURT: Are the author and recipient 7 same that these are authenticated business records of 8 both -- 8 Whittaker, Clark & Daniels. I can explain why they're 9 MR. SULLIVAN: Correct. 9 relevant if we want to take another crack at it. 10 THE COURT: -- Whittaker, Clark & Daniels 10 But the next one is Tab 13, Exhibit 30. 11 persons. So as to you, isn't it a party admission? 11 Again, authenticated business record and an admission by 12 MR. SULLIVAN: Certainly it could be looked at 12 a party opponent which will overcome the hearsay 13 that way. The illegibility issue is something that I 13 objections. 14 don't think can be overcome by the fact that they 14 Tab 14, Exhibit 31, the only objections are 15 produced a more legible copy that was put before 15 hearsay and lack of foundation. This is again a 16 Mr. Hubbard in this Dallas deposition, which is the one 16 Whittaker, Clark & Daniels document, a letter to them 17 at issue here. The Depoian record is a different 17 which we believe is authentic, a business record, and 18 record. Same document but produced in a different 18 has a nonhearsay purpose of notice. 19 context. So it was no less legible to Mr. Hubbard when 19 And then the last one that we wanted to bring 20 he was examined on it. 20 before Your Honor in response to Your Honor's rulings, s 21 MS. AGELSON: Your Honor, I'd also further 21 Tab 20, deposition Exhibit 38, which again bears a WCD 22 assert -- and I haven't seen the document plaintiffs 22 Bates stamp which would be subject to authentic and 23 currently have. But if -- what I understand is that 23 business records and is a letter to Whittaker, Clark & 24 some portion of it is now legible while the rest of it 24 Daniels. So that would overcome the hearsay. 25 is not legible, I would assert that the entire document 25 THE COURT: From who? 26 needs to be legible in order to overcome this problem. 26 MR. PURDY: It's from Bristol Meyers. And 27 I mean you cannot -- I can't read -- I mean I 27 just for the record, we also have another version. 28 can't read anything on it. And I don't see how this 28 THE COURT: So it's 10, 13, 14, and 20? Page 15 Page 17 1 document can be admitted just because they have found a 1 MR. PURDY: Correct, Your Honor. 2 copy that somehow is more legible for the portions they 2 THE COURT: Okay. 3 want admitted. The entire document needs to be legible. 3 MR. PURDY: And it also has, in terms of the 4 THE COURT: I can't rule on this at this point 4 hearsay in addition to the business record, it also has 5 because I don't have -- I mean it appears to me that 5 a nonhearsay purpose of notice. 6 these documents, with the possible exception of the 6 THE COURT: We'll argue these later, but it 7 illegible one, are admissible as to Whittaker, Clark & 7 seems to me if you're going to have to bring in your 8 Daniels. Apparently one of the representatives is going 8 line witness to lay foundation for it, I don't think 9 to testify it's a business record. They apparently 9 there's a good reason to do it twice. 10 don't dispute the fact that these others are business 10 MR. PURDY: I understand, Your Honor. If 11 records. We have the illegible document. That's in a 11 that's what Mennen will require, then hopefully we can 12 different category. 12 talk to them at a break and maybe we can save a half 13 But as to the documents where it's basically a 13 hour of everyone's life. But if we can't, we can't. 14 business record, you're entitled to assert that 14 THE COURT: It is 9:00. Is there anything 15 objection, but if there's going to be a live witness, 15 else we need to address? I haven't had a chance to look 16 the only question I read is if it's going to be a live 16 at the special jury instruction, so we may address those 17 witness who's going to come in and say yeah, this is the 17 after the jury is done at 4:30. It strikes me that what 18 first document I've looked at that did look like, you 18 I need is a clone. 19 know, a form agreement for writing down the results of 19 MR. PURDY: You and me both, Your Honor. 20 tests, on a prima facie showing it's made -- the 20 THE COURT: Are all of the defendants, other 21 business record exception applies. 21 than Whittaker, Clark & Daniels, asserting these 22 I'm just asking that you perhaps consider not 22 objections? 23 making us go through that exercise. 23 MR. COSMICH: Shulton is to a couple of these 24 MS. AGELSON: I appreciate that, Your Honor. 24 exhibits, particularly 30. I haven't seen the other 25 We do have other objections to the documents. So -- 25 two. 26 THE COURT: It's plaintiffs case. What do you 26 THE COURT: Okay. I just wanted to get some 27 want to do? At this point I don't have enough to find 27 sense -- I'm not going to vent on you. I just want to 28 the document is admissible. 28 get some sense of what we've got at this point. iDepo Reporters www.iDepoReporters.com 323.393.3768 202403220100 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 03/22/2024 04:08 AM TRIAL NYSCEF DOC. NO. 605DAY 13, AM SESSION on SEPTEMBER 27, 2016 RECEIVED NYSCEF: 03/22/2024 DEPOIAN, et al. vs. AMERICAN INTERNATIONAL INDUSTRIES, INC., et al. 7 (Pages 18 to 21) Page 18 Page 20 1 MR. BECKER: I think that's fair to assume, 1 fact, tracks Rutherford.