Document 6RN8bXM6Dpx70ZJMVoKwEQoZ6

FILE NAME: Asbestos Corp Ltd (ACL) DATE: 2000 DOC#: ACL020 DOCUMENT DESCRIPTION: Legal - Attorney's Reply in Support of Motion Limine to Admit Post Exposure Evidence SUPREME COURT OF THE STATE OF NEW YORK EIGHTH JUDICIAL DISTRICT In re EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION ________________________________________________ EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION This Document Relates To: ATTORNEY'S REPLY AFFIDAVIT IN SUPPORT OF DUREZ CONSOLIDATION - February 14, 2000 PLAINTIFFS' MOTION IN LIMINE TO ADMIT P O S Ir_ HERMAN BAISCH - Index No. 091955 EXPOSURE EVIDENCE DAVID T. BALLARD, Deceased - Index No. 096935 EDWARD CHRZASZCZ, Deceased - Index No. 11998-3782 ROBERT P. DiPIRRO - Index No. 11996-2220 CURTIS EDIN, Deceased - Index No. 11997-6257 WILLIAM ELLIS - Index No. 096163 THOMAS J. GORAJ, Deceased - Index No. 98-6748 ROLLAND J. GROULX - Index No. H-94350 DONALD W. HOCH - Index No. 095609 JAMES F. JAGOW - Index No. 096162 DENNIS J. KANTOR - Index No. 096165 JOHN F. KASSAY, Deceased - Index No. 096412 DENNIS M. KISIEL - Index No. 091943 CAROL J. KNAPP - Index No. 098513 DONALD J. KOENIG - Index No. 091966 JULIUS KRIZON - Index No. 11998-4966 ROBERT A. LEGER, Deceased - Index No. 095356 LOUIS W. MEYER, Deceased - Index No. 98-6748 DOYLE E. MILLER - Index No. 11996-8865 MICHAEL J. MYRTLE - Index No. 096164 GEORGE A. NIEMIEC, JR. - Index No. 097555 PHILIP D. OVERTON - Index No. 11998-4966 LOUIS T. PARISH - Index No. 095609 CHARLES A. PERGREM, Deceased - Index No. 11997-2882 ROBERT J. PETERMAN - Index No. 11997-6908 JESSE A. PIFER - Index No. 096164 CLINTON E. PLOTNER, Deceased - Index No. 097261 FRED E. POELLER, Deceased - Index No. 093435 GARY R. RICE - Index No. 091944 LOUIS N. SCRIVANO - Index No. 094312 DAVID MICHAEL SELOVER - Index No. 098513 NORMAN O. STAHL - Index No. 1995-3164 d. y FRED C. STRINGFELLOW, Deceased - Index No. 11998-3782 BENTON W. SUTER - Index No. 095609 RAY A. TROTTER - Index No. 11998-4966 VERNON TROYER, Deceased - Index No. 98-6748 CLARENCE E. TYGER, Deceased - Index No. 11998-3782 RICHARD V. WESOLOWSKI - Index No. 084837 STATE OF NEW YORK COUNTY OF ERIE CITY OF BUFFALO ) ) SS.: ) JOHN NED LIPSITZ, being duly sworn, deposes and says: 1. I am an attorney at law duly licensed to practice law in the State of New York and am a member of the law firm of Lipsitz & Ponterio, LLC, attorneys for plaintiffs in the above-captioned actions. As such, I am fully familiar with the facts and circumstances stated in this affidavit. 2. I submit this affidavit in support of a motion in limine to admit evidence of post exposure conduct on the part of defendant Asbestos Corporation, Ltd. during the course of the punitive phase of the trial scheduled to commence in Niagara Falls, New York on February 14, 2000. Specifically, plaintiffs will seek to introduce evidence of post-exposure conduct on the part of defendant Asbestos Corporation, Ltd. as proof of its continuing wrongdoing and persistent and wanton disregard for the health and safety of others, such as to justify the imposition of punitive damages. This affidavit is also made in reply to opposition papers served by defendant Asbestos Corporation, Ltd. through its attorneys, Bouvier, O'Connor, James L. Kennedy, Esq., of counsel. 3. In James L. Kennedy's affidavit, sworn to on the 18th day of January, 2000, at paragraph 5 thereof, the defendant disputes that it is engaging in mining or sale of raw asbestos product to any third world countries. In paragraph 6 of Mr. Kennedy's affidavit, the defendant sets forth that it is still "the record owner of certain mines in Quebec, no mine is actively operating at this time, contrary to the untrue and unsubstantiated allegations in the affidavit of plaintiffs' counsel." . 4. Defendant objects to your deponent's affidavit sworn to on the 30th day of December, 1999 in support of plaintiffs' motion, contending that the allegations set forth in your deponent's affidavit are without supporting proof. 5. Continued mining, sales and marketing of raw asbestos to third world countries, or indeed to any location, are relevant to plaintiffs' motion to the extent they demonstrate misconduct occurring after the period of injurious exposure, which in this case would have ended for all plaintiffs in or about 1979. The issue before this Court is a legal one: may plaintiffs introduce evidence of post-exposure misconduct at the punitive phase of the forthcoming trial? It is not material, therefore, whether the alleged misconduct continues to the present day, or came to a halt six months, or even two years ago. 6. Your deponent concedes that he has no personal information or knowledge concerning the mining, sales and marketing activities of the defendant. Your deponent's information and belief is based in part on a series of three articles appearing in the Toronto Star in March, 1999, copies of which are attached hereto as Exhibit "A." The article published on March 20, 1999 by Toronto Star news feature writer Bill Schiller is entitled "Why Canada pushes killer asbestos." The article appearing on the following day is entitled "Asbestos 'king' admits fibres will kill." Finally, the concluding article in the series which appeared on March - 3- 23, 1999 is entitled "A deadly export." In his articles, Mr. Schiller quotes Jean Dupere, a former Montreal lawyer who is the majority owner of LAB Chrysotile, Inc. According to Mr. Schiller's article, Mr. Dupere concedes that Canadian asbestos, a carcinogenic fiber used mainly in the construction industry, will kill foreign workers in Algeria. He quotes Mr. Dupere as saying "I may tell them as much as I want. If they don't follow and they don't practise and they don't even put into operation the equipment we give them to regulate the air, there is no doubt it's going to lead to problems." He also quotes Mr. Dupere acknowledging that "This is a dangerous product" and "It's a carcinogen. Nobody will ever deny that, or should. Uncontrolled it will obviously cause --as we know --physical harm and deadly disease." Mr. Schiller's articles also quote Dr. Julian Peto, head of Epidemiology at the University of London's Institute of Cancer Research, who states in the article published on March 21, 1999 that in practice, you cannot control the use of asbestos in England "let alone in the Third World. When 17-year-olds become builders they're macho about everything: drinking, driving, smoking and sawing up asbestos in little rooms." Mr. Schiller also quotes Dr. Peto as saying that talk by the asbestos industry of getting "ventilation equipment" installed to minimize risk on worksites was just "preposterous." 7. Upon information and belief, and based upon the annual corporate report of Mazarin Inc. of Quebec, LAB Chrysotile is and has been the marketing arm of the Quebec asbestos industry, including the mines owned by Asbestos Corporation, Ltd. in Thetford, Quebec. Attached hereto as Exhibit "B" is the corporate profile of Mazarin Inc. Upon further information and belief, defendant continued to mine, sell and market asbestos through the decade of the 1990's. -4 - 8. This Court should decide at trial whether plaintiffs' witnesses are competent to testify to facts having a tendency to prove that defendant acted wantonly, recklessly, or in conscious disregard of the rights of others, not only during the years of plaintiffs' exposure, but also in later years. 9. Defendant's contention that plaintiffs are failing to advance a prima facie case for punitive damages is devoid of merit. Judgment was entered against defendant in 1997 in the Pieper case upon this Court's finding "that there was ample testimony and exhibits presented that the defendant was well aware of the risks of exposure to raw asbestos mined by the defendant for a long period of time. There was ample evidence of the danger of exposure to raw asbestos going back to 1940. Defendant's failure to warn or take any steps to protect users of raw asbestos support..." the award of punitive damages. See this Court's Memorandum of Decision in James J. Pieper v. Asbestos Corporation. Ltd., et al attached as Exhibit "A" to plaintiffs' Memorandum of Law in Support of Motion in Limine to Admit Post-Exposure Evidence. It is respectfully submitted that this Court's Memorandum of Decision in the Pieper case represents the law in our jurisdiction with regard to the showing necessary in order to sustain an award of punitive damages. The evidence which plaintiffs propose to introduce against Asbestos Corporation, Ltd. at the forthcoming trial is substantially the same evidence upon which the jury imposed punitive damages on Asbestos Corporation, Ltd. in 1997, except to the extent that plaintiffs now also seek to introduce into evidence in the punitive damage phase facts tending to prove that the defendant continued to engage in wanton and reckless misconduct through the present time. 10. Attached to defendant's Affidavit in Opposition is a verification sworn to by - 5- Richard Dufour, Esq. on January 18, 2000. Mr. Dufour claims to be legal counsel for Asbestos Corporation, Ltd., and as such, duly authorized to affirm the truth of the contents of Mr. Kennedy's affidavit also sworn to the 18th of January, 2000, especially in regard to defendant's contention that it no longer is engaged in the mining, selling and marketing of raw asbestos on an international scale. Mr. Dufour's verification is conclusory, devoid of detail, and should be disregarded by this Court. If, as asserted by Mr. Kennedy, the defendant is no longer engaged in such activities, the pertinent question would be, when did it stop? WHEREFORE, it is respectfully requested that this Court make a pretrial ruling that post-exposure evidence of continuing misconduct on the part of defendant Asbestos Corporation, Ltd. is relevant and admissible during the punitive damage phase of the trial scheduled for February 14, 2000, and grant such other, further and additional relief as this Court deems just and proper. Sworn to before me this day of January, 2000. 6 -