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IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION JAMES BACCUS, JR., EXTR. : OF THE ESTATE OF JAMES BACCUS, SR., : DECEASED, AND SYBLE BACCUS,' WIDOW IHOR: v. : BUFFALO PUMPS, INC., ET AL : MARCH TERM, 2007 NO. 1063 FEBRUARY 25 2008 COURTROOM 616 CITY HALL PHILADELPHIA, PENNSYLVANIA MOTIONS and OPENING STATEMENTS OF COUNSEL BEFORE: HONORABLE JAMES MURRAY LYNN, J. APPEARANCES: TROYCE WOLF, ESQUIRE DEMETRIOS T. ZACHAROPOULOS, WATERS & KRAUS LLP . BENJAMIN P. SHEIN, ESQUIRE SHEIN LAW CENTER, LTD. FOR PLAINTIFFS BACCUS ESQUIRE G. DANIEL BRUCH, JR., ESQUIRE SWARTZ CAMPBELL ERIC R. I. COTTLE, ESQUIRE MICHAEL J. R. SCHALK, ESQUIRE TERRY BUDD, ESQUIRE K&L GATES FOR DEFENDANT CRANE CO. (BACCUS CASE ONLY) 2 2 APPEARANCES: (continued) 3 WILLIAM R. ADAMS, ESQUIRE DICKIE McCAMEY 4 THOMAS J. BURNS, ESQUIRE O'CONNELL, TIVIN, MILLER & BURNS, L.L.C. 5 FOR JOHN CRANE, INC. (BACCUS CASE ONLY) 6 JAMES E. DelBELLO, ESQUIRE PATRICIA DAFFODIL TYMINSKI, ESQUIRE MORGAN LEWIS FOR DEFENDANT YARWAY CORPORATION 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 INDEX 3 4 Motions 5 Opening statements of counsel 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 PAGE 3 93 4 1 Colloquy 2 THE COURT: I understand there are 3 some motions. We can put them on the record. 4 MR. BRUCH: Thank you. Your Honor. I 5 appreciate the splendid opportunity to argue 6 these motions, understanding the Court's 7 ruling. 8 My first motion on behalf of Crane 9 Co. is to sever the punitive damage claim. As 10 you know, the Court has ruled that the 11 substantive law of Kentucky will be applied in 12 the Baccus case. 13 As the Court also knows, both 14 Pennsylvania and Kentucky law permit punitive 15 damages. 16 It is a fundamental principle of 17 conflicts of law that a court use the 18 procedural rules of its own state. So in this 19 situation, the procedural rules of Pennsylvania 20 should be adopted. 21 By procedure, custom, and practice, 22 in Philadelphia County, PA, asbestos cases, 23 punitive damages have always been severed out. 24 Plaintiffs have taken advantage of the 25 Pennsylvania procedural rules of procedure. 5 1 Colloquy 2 custom, and practice to use reverse bifurcation 3 and consolidation. 4 Furthermore, Your Honor, there has 5 been, to the knowledge of this attorney, which 6 I think is pretty accurate, no punitive damage 7 claim, regardless of the substantive law of the 8 state since 1986, and the issue of limited 9 funds was raised due to the numerous 10 bankruptcies that there is not enough money for 11 plaintiffs to get compensatory damages, not 12 alone punitive damages. 13 I have provided the Court with one 14 opinion, to support this position. That 15 opinion; there are other opinions cited in our 16 brief, but the Commonwealth of Pennsylvania v. 17 John Charles Eichenger, on page 13, not to bore 18 the Court, says it is a fundamental principle 19 of conflicts of law that a court use the 20 procedural rules of its own state. 21 Therefore, Your Honor, I feel 22 punitive damages on behalf of Crane Co. should 23 not be permitted in this Baccus trial as a 24 result of the procedure, custom of this forum 25 since 1986. 1 Colloquy 2 THE COURT: Well, you asked for 3 Kentucky law. 4 MR. BRUCH: Your Honor, I asked for 5 Kentucky law substantively. Once you 6 go procedurally, both Pennsylvania and Kentucky 7 have punitive damages. 8 THE COURT: Are damages substantive 9 or procedural? 10 MR. BRUCH: The law for damages is 11 substantive, Your Honor. 12 MR. ADAMS: Do you want us to go by 13 defendant, Your Honor, or by issue? I don't 14 mean to interrupt. Just whatever your 15 preference would be, because I have argument on 16 this issue as well. 17 MS. TYMINSKI: As do I for Yarway, 18 Your Honor. 19 THE COURT: I would say by issue and 20 in order. 21 I don't know if Mr. Bruch is 22 finished. 23 MR. ADAMS: I apologize. 24 MR. BRUCH: Your Honor, I am finished 25 with the exception of one request. 7 1 Colloquy 2 I respectfully request that due to 3 the severity of the issues in this case and the 4 7 rrtillion-dollar verdict, I would respectfully 5 request 15-minute arguments despite what the 6 Court said earlier today. THE COURT: Well, there will be on 8 arguments. It will be opening statements. 9 MR. BRUCH: I mean opening 10 statements, correct. You are right. 11 I have now completed my punitive 12 damage request, if other defendants want to 13 follow-up, Your Honor. 14 THE COURT: Just one second. This is 15 a criminal case, the Eichenger case? 16 MR. BRUCH: It was a criminal case. 17 Your Honor, but it referred to both civil and 18 criminal rulings, and there are other opinions 19 cited in our brief. 20 THE COURT: Are you saying punitive 21 damages should have been argued in phase one? 22 MR. BRUCH: No, Your Honor. I am 23 saying - 24 THE COURT: If you are saying they 25 should be in phase one -- 1 Colloquy 2 MR. BRUCH: Well, under Kentucky law, 3 all issues should be raised at once. 4 THE COURT: Well, it is in the same 5 trial. 6 MR. BRUCH: The issue is that all the 7 damages should be presented at the outset. 8 THE COURT: Punitive damages in phase 9 one just dealt with medical issues. 10 MR. BRUCH: Under Kentucky law, all 11 issues of damages have to be presented at once 12 to the jury or the judge if it is a nonjury 13 trial, and there is a statute on that. She has 14 it right here. 15 MS. TYMINSKI: John Crane, I think, 16 will address this issue as well. 17 MR. BRUCH: And I refer to that 18 Kentucky statute in our brief. 19 THE COURT: The same jury will hear 20 all of this evidence; is that right? 21 MR. BRUCH: From the outset and 22 determine it once. 23 THE COURT: As the jury was told, we 24 are in one trial, one trial divided in two 25 phases. 9 1 Colloquy 2 MR. BRUCH: The thrust of my main 3 argument, Your Honor, is that procedural law of 4 Pennsylvania must be followed regardless of the 5 choice of substantive law, punitive damages 6 under Kentucky law and Pennsylvania. The 7 procedure here elected by the plaintiffs was to 8 go in reverse bifurcation. 9 THE COURT: No. They were ordered by 10 the Court. I don't know the exact history of, 11 you know, from the incipient stages of 12 asbestos, you know, trial procedure, but it 13 seems to me that it was either done by order of 14 court that it be done this way, because the 15 courts wanted it that way, however many years 16 ago that was, or the parties, themselves, in 17 concurrence agreed with this. To say that 18 somebody chose something, which is, in the 19 Baccus case, when it is somehow as if they had 20 a choice, they don't have a choice. 21 MR. BRUCH: As you know, Your 22 Honor 23 THE COURT: They don't have a choice. 24 This is the practice, the culture, the 25 procedure that has been adopted in this Colloquy 10 2 jurisdiction in Philadelphia County, and upheld 3 by the appellate courts. So to say that they 4 have an honest choice is overstating the case. 5 MR. BRUCH: Similarly, Your Honor, if 6 you follow the logic of that argument, then punitive damages cannot be used. They have not 8 been allowed since 1986. 9 THE COURT: You are using the issue 10 of Kentucky law for your advantage. You want 11 an advantage. 12 In Pennsylvania, we do not apportion 13 damages in a way that make the plaintiff go 14 chasing people for percentages so that they can 15 be made whole. Pennsylvania doesn't believe in 16 that sort of system. They believe that the 17 plaintiff, once it received -- the people of 18 Pennsylvania have decided a long time ago that 19 once a person has been adjudged harmed, that 20 they are to, by more than one defendant, they 21 have the absolute right to be made completely 22 whole, and whether it be -- and they call it 23 joint and several. Joint means they can 24 contribute together amongst each other to make 25 one plaintiff whole, or if one party is Colloquy 11 2 incompetent or unable to contribute, then the 3 burden falls squarely on the children of that 4 party that does. Now other states have the 5 right to do what they want to do, and 6 apparently Kentucky chooses to do it in a 7 percentage way, which Pennsylvania has 8 rejected. But you have asked for this 9 advantage, all three remaining defendants have 10 asked for this advantage in applying Kentucky law, but yet you don't want the down, side of 12 Kentucky law, which is contributing to damages. 13 And I have been trying to forcibly arguing 14 earlier -- well, not forcibly arguing. I would 15 rather see the case tried under Pennsylvania 16 law because this Court is more comfortable and 17 conversant with Pennsylvania law. But since 18 the force of the defense arguments were made 19 plain to the Court that Kentucky law ought to 20 apply, and since it does, the entire Kentucky 21 law, and in terms of damages and liability must 22 apply. No matter in proceeding, how we do it, 23 as long as it is fair and each side has the 24 opportunity to address the same trier of fact, 25 whatever issue it is. But the fact that it is 12 1 Colloquy 2 some pro forma thing was written in a certain 3 way to maybe help out a state, a procedural 4 practice, the way that state wishes to proceed 5 in a procedural way in their court systems that 6 they know best doesn't necessarily mean we have 7 to adopt that here exactly. 8 MR. BRUCH: Your Honor, I understand 9 all that. 10 THE COURT: Of course, we have a 11 different situation here. I am sure there is 12 no -- to combine cases from Kentucky probably 13 don't even match what this county has in terms 14 of litigation, okay. So we have to make 15 certain adaptions. 16 My primary concern here is that this 17 jury receive fairly instructed on the law, 18 whatever law it is going to be, and that each 19 side has an opportunity to make their case on 20 all aspects of the case. 21 MR. BRUCH: Your Honor, I would just 22 like to finish. Your Honor, the plaintiffs,23 when you talk about advantage, they elected 24 this forum because they knew it was reverse 25 bifurcation and consolidation. They could have 13 1 Colloquy 2 filed this case in Kentucky, The guy lived 3 there for 50 years. Just for purposes of the 4 record, we are just asking for severance. 5 THE COURT: Well, you have had the 6 opportunity to have -- I am sure you filed 7 motions to change venue or to exclude on 8 jurisdictional grounds, and apparently they 9 have jurisdiction here. 10 MR. BRUCH: I am now complete on that 11 motion, Your Honor. 12 MR. ADAMS: Your Honor, I would just 13 supplement by arguing the plaintiffs did have a 14 choice. They chose to file here, and we have 15 argued prior to phase one, Your Honor, that 16 Kentucky law should apply, and that it should 17 have been in all issues of trial to avoid this 18 exact situation, Your Honor. Plaintiffs did 19 oppose that motion. They opposed it when they 20 filed - 21 THE COURT: Have you ever had an 22 asbestos case where there was another state's 23 law used in the case? 24 MR. ADAMS: Yes, Your Honor. 25 THE COURT: In this state? 14 1 Colloquy 2 MR. ADAMS: Yes, Your Honor. 3 THE COURT: In this city? 4 MR. ADAMS: Yes. There is one coming 5 to trial. I believe they are trying to get a 6 trial date. 7 THE COURT: And it was reverse 8 bifurcated? 9 MR. ADAMS: Tennessee law. It hasn't 10 been tried yet, Your Honor. 11 THE COURT: In this courthouse, they 12 didn't reverse bifurcate? 13 MR. ADAMS: It hasn't been tried yet, 14 Your Honor. 15 THE COURT: I said have you ever had 16 one? I don't think so. 17 MR. ADAMS: I don't know if our 18 office has. 19 THE COURT: My guess is, my money Is 20 going on that you have not had a reverse 21 bifurcated case where you had choice of law 22 issues and the choice of law went to the 23 foreign state. 24 MR. BURNS: Your Honor, what we have 25 not had is a case where they split it; where 15 1 Colloquy 2 they said it is reverse bifurcated for 3 procedures; however, then we will adopt 4 Kentucky procedure for not severing out 5 punitive damages. 6 Our argument is this; before phase 7 one, we said Kentucky procedure, ail issues. 8 The Court said no; we are following the 9 practice of Pennsylvania. Now we are here and 10 saying that means practice of Pennsylvania, 11 sever out punitive damages. Mr. Bruch has 12 provided statutes, he has provided cases that 13 that's clear, and you are saying no, that is 14 not how they do it in Kentucky. 15 THE COURT; It is the way we do it in 16 Philadelphia, is what I said, that is the way 17 we do it in Philadelphia. 18 MR. BURNS; In Philadelphia, you 19 sever the punitive damages out. You are not 20 severing punitive damages out; you are mixing. 21 It is either all Kentucky procedure or all 22 Pennsylvania procedure. 23 THE COURT: Well, you want me to 24 follow Kentucky law or Pennsylvania law? 25 MR. BURNS; Pick; one or the other. 16 1 Colloquy 2 THE COURT: I have, based on what you 3 have requested. 4 MR. BURNS: The procedure. 5 THE COURT: I understand you are 6 repeating what Bill just said. 7 Anything else, Mr. Adams? 8 MR. ADAMS: Your Honor, the other 9 argument I would have is that in Pennsylvania, 10 Pennsylvania has an interest in applying 11 punitive damages based on the state's interest 12 in punishing an attorney, deterring particular 13 behavior. None of the behavior that has 14 allegedly brought about the need for punitive 15 damages ever arose in Pennsylvania, Your Honor, 16 and I would argue under the Pesco Company, 17 Inc., The Associated Products, 880, A.2d, 700, 18 and the cases that were adopted therein, and 19 the supreme court cases which we handed up to 20 you. Your Honor, State Farm -- it was my only 21 copy. State Farm v. Campbell, 538, U.S., 408, 22 that out-of-state conduct has no relevance and 23 can have no bearing on a punitive damages case 24 inside this state, under U.S. Supreme Court, 25 citing case law, and, therefore, because none 17 1 Colloquy 2 of the conduct took place here in Pennsylvania, 3 Your Honor, there is no state interest in the 4 Commonwealth of Pennsylvania to argue or to 5 have punitive damages assessed. And, Your 6 Honor, they could have chosen to file in 7 Kentucky; they did not. They chose to file 8 here; that was the plaintiffs' choice. They 9 are now seeking. Your Honor, to use reverse 10 bifurcation which is the reason the Texas lawyers filed here instead of in Kentucky as a 12 sword, obviously, because it is better for them 13 in the phase on damages as we all saw last 14 week. However, now they are seeking to use it 15 as a shield, Your Honor, and it doesn't work 16 that way, and it shouldn't work that way. 17 THE COURT; You are using it as a 18 shield, too, because you want apportionment of 19 damages the way you want it, which .is against 20 public policy of Pennsylvania. 21 MR. ADAMS: Your Honor, we asked at 22 the very beginning of the trial to have an 23 all-issues trial, which would have included the 24 punitive damage phase, if that was so -25 THE COURT: And you still would have 18 1 Colloquy 2 asked for Kentucky law and you still would have 3 been requesting and arguing for an 4 apportionment of damages which violates 5 Pennsylvania public policy; to wit, percentage 6 of apportionment versus pro rata. 7 MR. BRUCH: Your Honor, by way of 8 history, as I am sure you are probably aware 9 of, when this implementation of reverse 10 bifurcation/consolidation came into being, it 11 was due to the bankruptcies of several 12 defendants, and the court said with more 13 bankruptcies, we will not be able to even 14 protect compensatory damages for future 15 plaintiffs, and you can say that Crane Co. or 16 any of these other defendants are big 17 companies, but, as you know, Fortune 500 18 companies, unfortunately, some that I've 19 represented like Eagle Picture Industries, the 20 ones that you are familiar with like Owens 21 Corning Fiberglas Corporation, went into 22 bankruptcy with lots of coverage; Pittsburgh 23 Coin. There probably have been 40 or 50. The 24 defendants that are fighting here are fighting 25 for compensatory damages, and Mrs. Baccus has a 19 1 Colloquy 2 substantial compensatory damage; that was the 3 whole reason for this. 4 THE COURT: Are you interested in 5 this issue? 6 MR. DelBELLO: Yes, Your Honor. We 7 join in these motions with the codefendants, 8 and also with respect to mixing, with the 9 motion to apply Kentucky law having been filed 10 and asked to be ruled upon before phase one; by 11 statute in Kentucky, all issues are tried 12 together, and we believe that by applying 13 Kentucky law to phase two now would unfairly 14 prejudice the defendants and we would use that 15 as an -- 16 THE COURT: Then why did you ask for 17 it after phase one concluded? 18 MR. DelBELLO: The motion had been 19 filed before phase one. 20 THE COURT: But you didn't withdraw 21 it after phase one, did you? 22 MR. DelBELLO: No. 23 We would move to have the 24 THE COURT: You wanted Kentucky law 25 applied to phase two; you asked for it. 20 1 Colloquy 2 MR. DelBELLO: That's right, but we 3 are now in this 4 THE COURT: Now after they brought up 5 punitive damages, now you changed your mind. 6 So in phase two, you asked for 7 Kentucky law. 8 MR. ADAMS: We asked for Kentucky law 9 throughout the whole trial. 10 MR. DelBELLO: Throughout the whole trial. 12 THE COURT: And you continued to ask 13 for it in phase two. 1.4 MR. DelBELLO: Can I just quickly 15 make - 16 THE COURT: If it is different. 17 MR. DelBELLO: It is not. 18 We would just also move the phase one 19 verdict be stricken and a new jury be presented 20 for phase two. 21 THE COURT: Give me a case that says 22 I ought to do that. 23 MR. DelBELLO: I don't have one. Your 24 Honor. 25 THE COURT: I am sure it doesn't 21 1 Colloquy 2 exist. 3 MR. DelBELLO: The statute in 4 Kentucky says that all issues should be tried 5 together, under Kentucky law. 6 THE COURT: Your motion is denied. 7 MR. BURNS: We join in that motion 8 for purposes of the record. 9 MR. DelBELLO: Thank you, Your Honor. 10 MR. ADAMS: Your Honor, may I be 11 heard? 12 THE COURT: For purposes of the 13 record or for purposes of the Court's 14 consideration? 15 MR. BURNS: I assumed we had the 16 Court's consideration. It was for purposes of 17 the record, but if my joining is going to 18 change your decision, by all means. 19 MR. ADAMS: I have cases on that 20 issue briefly, and on the issue of new trial 21 for phase one. Your Honor, we would make a 22 motion based on the prejudicial comments made 23 in the "phase one" closing by Mr. Nemeroff, in 24 which I had objected to certain comments made 25 by and certain motions made by Attorney Shein 22 1 Colloquy 2 not during his closing, Your Honor. I simply 3 requested it not be made during the other 4 attorneys' closings. Mr. Nemeroff then got up 5 and said, after availing himself of a reverse 6 bifurcated process in a mesothelioma, case where 7 defense had no phase one defense, these were 8 his exact words, Your Honor, they kind of chip 9 away at it, kind of nibble away at it, they 10 kind of nag at it, but they don't actually 11 attack it. They don't even have the strength 12 of their conviction to attack this evidence 13 straight on. 14 Your Honor, it is a direct attack in 15 violation of Rule of Professional Conduct 3.4 16 as well as the Code of Civility in 17 Pennsylvania; it prejudiced the jury as can be 18 seen from the verdicts rendered in this case, 19 and we would move for a new phase one trial. 20 THE COURT: No such evidence that the 21 jury was prejudiced. Motion denied. 22 MS. TYMINSKI: Yarway joins in that 23 motion. 24 MR. BUDD: We join in that argument 25 for Crane Co. 23 1 Colloquy 2 THE COURT: Denied, but actually 3 Mr. Bruch has a better argument now. 4 MR. SHEIN: Are you finished with 5 that argument? 6 THE COURT: How he has he has a 7 better argument. 8 MR. BRUCH: No. We are finished with 9 the punitive damages argument. 10 THE COURT: I thought you said you 11 had a better argument for that. 12 MR. BUDD: He does with respect to 13 why a new jury should be presented. 14 THE COURT: That's not what I am 15 saying. 16 MR. BRUCH: I do, but Mr. Shein wants 17 to respond to our argument on severing punitive 18 damages. 19 MR. SHEIN: Your Honor,I am not going 20 to have a lot to say. You know the old adage, 21 be careful what you wish for because you might 22 get it, is what happened to you folks for 23 Kentucky law. 24 But just to respond to Mr. Adams' 25 remarks that there is no interest in 24 1 Colloquy 2 Pennsylvania to protect, there were, indeed, 3 contacts of Mr. Baccus where he was working 4 while serving in the Navy at the Philadelphia 5 Naval Shipyard and some or all of these 6 defendants, all of these defendants do or did 7 business in the Commonwealth of Pennsylvania, 8 some are either incorporated and/or have 9 principle places of business in Pennsylvania. 10 So there definitely is contacts in 11 Pennsylvania. 12 And, Your Honor, you should be aware 13 that no motion for forum nonconvenience was 14 ever filed by the defense in this case, and no 15 motion to transfer the matter to Kentucky was 16 ever filed in this case by any defendants. 17 THE COURT: Thank you. 18 MR. SHEIN: We would obviously oppose 19 all the arguments that the defense has just 20 made on punitive damages. 21 MR. BRUCH: One response, Your Honor, 22 the late, great Judge Takiff said; we should 23 preserve this money for Pennsylvania residents. 24 This is a Kentucky resident. 25 With that argument -- 25 1 Colloquy 2 THE COURT: He was a fine judge and a 3 fine man, but this is a big country, and we are 4 all citizens of it. 5 MR. BRUCH: I think we are all 6 finished with that argument, Judge. 7 THE COURT: I didn't know he was a 8 federalist. 9 MR. ADAMS: I am sorry, Your Honor. 10 Just an issue regarding the video -- 11 MR. BUDD; We have other motions. 12 MR. ADAMS: I apologize. 13 THE COURT: You may proceed. 14 MR. BRUCH: Your Honor, I understand 15 the Court's ruling on this. Are you taking it 16 under consideration. May I proceed to the next 17 motion? 18 THE COURT: Yes. 19 MR. BRUCH: Your Honor, the next 20 motion is for a -21 THE COURT: For the record, I have 22 already considered it, as we have been 23 considering some of these, at least, that I 24 know of for sometime, and the defense motions 25 are denied on the issue of punitive damages. 26 1 Colloquy 2 MR. BRUCH: Your Honor, the next 3 motion on behalf of Crane Co. is for a new jury 4 for phase two. 5 I understand the Court's ruling, but, 6 as you know, last week, when the Court was 7 working to resolve cases and handle other 8 issues, we were advised that the Waters & Kraus 9 firm that had one witness other than Dr. 10 Maddox, and that was an industrial hygienist. 11 We learned over the weekend, on Friday, I don't 12 know exactly, but they now have a new witness. 13 Captain Burger. 14 This jury is tired. When we had the 15 general voir dire, they were told that this 16 would be a two-week trial. 17 THE COURT: Well, that shouldn't have 18 been because you know they don't take two 19 weeks; they take more than two weeks, 20 especially when there were 43 lawyers 21 requesting jurors. For the lawyers as a group 22 to say to these jurors, prospective jurors, 23 that this is only going to take two weeks, one 24 of those days being a national holiday, is a 25 disservice to the jury. 27 1 Colloquy 2 MR. BRUCH: As you know, Your Honor, 3 regrettably, when you have all of these cases 4 consolidated, you can't trump 43 lawyers. 5 THE COURT: Well, with common sense, 6 you know how long it is going to take. 7 MR. BRUCH: The additional witness of 8 Captain Burger is going to prolong the case. 9 Some jurors have expressed concerned with day 10 care and their jobs. Between the defense 11 witnesses and the plaintiff's witnesses, this 12 trial could take, and even the Court's 13 instruction of continuous witnesses and other 14 things you have given us, this trial could take 15 another two weeks. The jury is angry. 16 THE COURT: There is no evidence that 17 the jury is angry. Please. 18 MR. BRUCH: There is no evidence, you 19 are right. Your Honor. 20 THE COURT: The jury is jovial. They 21 were just laughing a few moments ago, you could 22 hear through the door. The jury is in good 23 spirits. 24 MR. BRUCH: We would request a new 25 jury, as we feel it is prejudicial at this 28 1 Colloquy 2 point. 3 THE COURT: Anybody else want to join 4 in that motion? 5 MS. TYMINSKI: Yarway would join in 6 that motion and also - 7 THE COURT: Denied. 8 MS. TYMINSKI: -- for the reason that 9 in voir dire of the jurors on the first day of 10 jury selection, Captain Burger wasn't mentioned 11 by any of the plaintiffs as a potential witness 12 in this case. 13 MR. BURNS: We join in that motion. 14 THE COURT: Denied, denied, denied. 15 Next. 16 MR. BRUCH: Your Honor, with your 17 permission, I would like to argue my last 18 motion in limine on behalf of Crane Co., and 19 this is on the exclusion of plaintiff's expert 20 witnesses for filing generic reports. 21 The common rules here, which I will 22 be glad to give you a copy of, don't 23 specifically refer to specifically courts, but 24 they do require, under Pennsylvania Rule 25 4003.5, you are supposed to submit case 29 1 Colloquy 2 specific reports, and by operation of practice 3 and procedures, we have been submitting case 4 specific reports. Generic reports are not 5 permitted in Pennsylvania due to the fact that 6 you are not allowed to take the depositions of 7 experts, 8 Crane Co. submitted case specific 9 reports of Drs. Forman -- 10 THE COURT: You are answering 11 interrogatories, though, aren't you? 12 MR. BRUCH: The interrogatories have 13 to set forth, they have to be a signed 14 opinion and -- you have to be very specific in 15 interrogatories. You can identify them, but 16 you have to -- just saying -- identifying 17 interrogatories or even a statement is not case 18 specific. 19 We submitted these case specific 20 reports of Drs. Forman -- 21 THE COURT: Did you ask for case 22 specific reports and complete interrogatories? 23 MR. BRUCH: Your Honor, I did not ask 24 for case specific reports because if Waters & 25 Kraus wanted to list generic reports, so be it. 30 1 Colloquy 2 Crane Co. submitted the report of Dr. 3 Forman, Industrial Hygienist Sabringo (ph) and 4 Sergeant, and these are case specific reports. 5 In the Wheeler case, Aaron DeLuca submitted 6 case specific reports, both damages and 7 liability. Mr. Shein has submitted case 8 specific reports. I understand that Mr. Shein 9 has represented to the Court that in some 10 courts he has been able to get Dr, Markowitz on 11 for one of his liability cases for the liability phase. 13 But in this report of Steve Paskal, 14 the industrial hygienist, there is no mention 15 of Crane Co. products. It is vague as to 16 regulations and it is vague as to substitutes, 17 and there is no cite to any publications or 18 anything. It is just a generalized statement 19 that he could use and there is no way we could 20 possibly limit him to the four corners, because 21 it is just a shotgun generic report. This is 22 an abrogation of the system here in 23 Philadelphia County, PA. 24 MR. DelBELLO: Your Honor, Yarway 2 5 joins in that motion. We also filed a motion 31 1 Colloquy 2 to strike the experts for not submitting case 3 specific reports. 4 I would also add that there is a case 5 management order that required the reports to 6 be served in October and that also was not 7 kept. The plaintiffs also did not meet the 8 requirements of that order in addition to Rule 9 4003.5, and we also, in the alternative, moved 10 in our papers that Dr. Paskal and Dr. Maddox be 11 limited in what they can testify to the 12 disclosures that were served even though they 13 weren't case specific, and we cited the Walsh 14 and the Wilkes Barre cases in support of that 15 proposition that they should be limited to the 16 disclosures itself. 17 Also, it is a strategic disadvantage 18 for the defendants to do case specific reports 19 and the plaintiffs not to have to, because by 20 doing these general disclosures, they are 21 allowed to pick and choose, and wait and see 22 what nonsettling defendants remain at the 23 actual trial, and then they can conform their 24 strategy through their experts at a later date. 25 where we did follow the order and we did follow 32 1 Colloquy 2 the report, did follow the rule, and submitted 3 case specific reports where our experts have 4 disclosed the substance of their opinions to 5 the plaintiffs. 6 MR. BURNS: Your Honor, all I would 7 add for the record in terms of only Dr. Paskal, 8 because I understand that due to the volume of 9 litigation, parties on both sides in every 10 trial don't always serve case specific reports. 11 THE COURT: Including John Crane. 12 MR. BURNS: Exactly, but the practice 13 and procedure in Philadelphia has always been 14 that - 15 THE COURT: Except I thought you told 16 me last week you weren't joining in that 17 motion. 18 MR. BURNS: Correct, but I am just 19 adding one thing. Dr. Paskal has never 20 testified in Pennsylvania before, which I think 21 makes it a different situation. 22 THE COURT: Have you cross-examined 23 him yet? 24 MR. BURNS: Never at trial. No one 25 from my entire firm, which represents John 33 1 A. Colloquy 2 Crane nationally, has ever cross-examined Dr. 3 Paskal, industrial hygienist, at trial. But we 4 have had depositions with him, but I will 5 represent to the Court I have never had a 6 deposition. 7 But I can state for the record he has 8 never testified against John Crane at trial, 9 and I think it is one thing to say John Crane 10 versus Mr. Shein's firm, I know what their 11 witnesses are going to say, he knows what my 12 witnesses are going to say, and when I told you 13 last week I am not joining in that motion, that 14 was my understanding. But when Dr. Paskal 15 became a witness, that is a different 16 situation, because he is not like some of the 17 people that I would say are essentially a known 18 quantity. If you have Dr. Stoloff or someone 19 like that, I certainly could never stand in 20 front of you and say that I don't know what Dr. 21 Stoloff is going to say about John Crane. He 22 said it hundreds of times and you have heard it 23 and seen me cross him, I could never make that 24 argument. 25 THE COURT: It might be said 34 1 Colloquy 2 something about his courage, that he is willing 3 to come here and facing you already somewhere 4 around the world. 5 MR. BURNS: Only at deposition, Your 6 Honor, and I would just say that is what makes 7 Dr. Paskal different than the other witnesses. 8 MR. BUDD: Your Honor, if I might 9 briefly add, similar to John Crane, to my 10 knowledge, Kirkpatrick & Lockhart as national 11 counsel for Crane Co. has never had occasion to 12 cross-examine Paskal at trial in any of our 13 cases. 14 More importantly. Your Honor, if this 15 Court is going to allow Paskal to testify, we 16 would ask that he be limited and not be allowed 17 to say anything specific to John Crane or Crane 18 Co. or Yarway because nothing in his report 19 discloses or tells us what he thinks he could 20 say, and I mean this politely, or make up about 21 these particular companies and what basis he 22 would have. We cannot have him offering things 23 on direct about particular defendants in this 24 trial or particular documents that he claims 25 they knew or should have known about when we Colloquy 35 2 had no occasion to discover that before the 3 jury hears that. So if he is allowed to 4 testify. Your Honor, it should not be in a way 5 where he is allowed to offer any specific 6 testimony about the companies. 7 THE COURT: Have you ever read his 8 testimony? Has he ever testified in a case in 9 any way, shape or form against Crane Co.? 10 MR. BRUCH: Not about this. 11 MR. BUDD: Not about this stuff, Your 12 Honor. To my knowledge, he has never testified 13 in a trial against Crane Co., and I will be 14 happy to double-check that. 15 In depositions, he is not Crane 16 Co.-specific. He talks about gasket and 17 packing studies, Your Honor. He says that 18 gaskets and packing can release levels of 19 asbestos that he believes are harmful, as an 20 industrial hygienist. And for him to offer 21 that in this trial, if the Court is going to 22 allow it, is one thing. But for him to come in 23 without any discovery and deposition on what he 24 thinks he could say about any particular 25 defendant in this trial is a very different 36 1 Colloquy 2 thing, and it would not be prudent for this 3 Court to allow that pattern. 4 MR. BURNS: That's correct, Your 5 Honor. 6 I would just add that on Friday, I 7 pulled every deposition transcript that exists 8 in the country to my knowledge in the John 9 Crane case and Dr. Paskal, and every report 10 that has been issued across the country, mostly 11 in California, involving John Crane, he has 12 never issued any report that mention the words, 13 John Crane. 14 And when he has been deposed, 15 including by me, he said, I am not 16 differentiating between companies, I am not 17 here to talk about companies; I am here to talk 18 about industrial hygiene in products, in 19 generally, generic products. He's never 20 disclosed to me, and I didn't follow-up on that 21 because why would I open that door? He's never 22 told me that he is aware of a John Crane fiber 23 release, he is not aware of John Crane 24 corporate knowledge. 25 State-of-the-art is going to be an 37 1 Colloquy 2 issue in this trial because punitive issues are 3 involved. He has never told me what he thinks 4 anyone knew or should have known in terms of 5 John Crane or any other company. That material 6 is truly not disclosed to us. It is not in his 7 report for this case and we will hand up the 8 report if you would like to see it. He talks 9 very generically about hazards and very 10 generically about products, keeps it as vague 11 as possible. And I have never followed up and 12 I assume that is why he has never come to trial 13 because I know we have had him stricken and 14 saying he has not disclosed any opinions about 15 John Crane in any other jurisdictions, and that 16 is where the prejudice lies with Dr. Paskal. 17 I can hand this up if you would like, 18 if you would like to take a moment to review 19 it. It is Mr. Paskal's report. He is an 20 industrial hygienist. That is where the 21 prejudice is, and when I told you last week I 22 wouldn't join in this, it is because I didn't 23 know this was the situation with Dr. Paskal. 24 As you are aware, I have been here all the time 25 and I am never going to say I don't know what 38 1 Colloquy 2 plaintiff's witnesses are going to testify to, 3 but with Dr. Paskal, it is a different 4 situation. 5 MR. DelBELLO: Your Honor, the 6 situation is the same with Yarway. I am not 7 aware of Dr. Paskal ever testifying at trial 8 against Yarway, and I am aware of -- 9 THE COURT: Did you look? 10 MR. DelBELLO: Yes, we did look. 11 MS. TYMINSKI: I looked, Your Honor. 12 MR. DelBELLO: I am aware of one 13 deposition in which he gave no Yarway-specific 14 testimony. 15 THE COURT: Anything else regarding 16 that? 17 MR. BRUCH: No. That completes the 18 motions by me, Your Honor. 19 MR. DelBELLO: We have some others. 20 MR. SHEIN: What is this motion? 21 What motion did you just make, by the way? 22 MR. BURNS: Motion to bar or a motion 23 to limit to the four corners of his report with 24 nothing company-specific. 25 MR. SHEIN: Your Honor, we would Colloquy 39 2 oppose that. 3 On October 2nc^, 2007, pursuant to 4 the master case management order, expert 5 reports and disclosures were served on defense. 6 Mr. Paskal's opinions and conclusions were served by way of an expert witness 8 disclosure, which under Pennsylvania Rules of 9 Civil Procedure is permissible. It was signed 10 by the doctor. In essence, in answers to 11 interrogatories, there were no objections to that report until we came into trial. There 13 was no motion for more specific answers to 14 expert witness interrogatories. 15 What we are really looking at is 16 whether or not -- it is fundamental fairness - 17 whether or not they are on notice of Dr. 18 Paskal's opinions and conclusions, and have an 19 opportunity to cross-examine him. If anything, 20 it goes to the weight to be given to Dr. 21 Paskal's testimony, not the admissibility. 22 They keep mentioning, and they are 23 very careful, we have never cross-examined Dr. 24 Paskal in trial. Okay. Well, what you are not 2 5 hearing, because they can't stand up and say 40 1 Colloquy 2 it, is we have cross-examined him in 3 deposition, okay, about gaskets and -- 4 THE COURT: Well, Mr. Burns did say 5 that. ' 6 MR. SHEIN: Right. About gaskets and 7 about packing. And under Pennsylvania rules, 8 he can testify about gaskets and packing, and 9 based on the evidence, he can be given a 10 hypothetical question as to whether or not the 11 exposure of Mr. Baccus would be a substantial 12 contributing factors, right in the disclosure 13 they received on October 2, 2007. 14 MR. BUDD: Your Honor, if I might, 15 very briefly, those points are all well taken 16 and they are taken under the Court's indication 17 that it is going to let Dr. Paskal testify. 18 Those points do not address the fact 19 that Dr. Paskal has not offered in his report, 20 nor have we been offered any chance to see what 21 he thinks he can say about Crane Co. 22 specifically or John Crane specifically or 23 Yarway specifically, and Dr. Paskal, to my 24 knowledge, has not done any Crane Co. valve 25 studies, has not done any particular work or 41 1 Colloquy 2 have any particular information on Crane Co. 3 So we would ask his testimony be limited,, 4 including within the four corners of his 5 designation - 6 THE COURT: You can cross-examine him 7 on that, though, can't you? 8 MR. BUDD: Actually, no. Your Honor, 9 because for us -- 10 THE COURT: You can't say to this 11 industrial hygienist that you have never 12 examined a Crane gasket, you can't say that to 13 him, that he is going to say no, and you are 14 not going to then be able to argue to the jury 15 how can he give his opinion, you don't have to 16 believe it because he has said he has never 17 even looked at one of ours, so how can you hold 18 us liable when their own witness says that he 19 has never even seen one of these things. 20 MR. BUDD: Your Honor, long ago, 21 Pennsylvania courts abandoned the rule of 22 ambush. 23 THE COURT: I have heard enough of 24 this. 2 5 MR. BURNS: Your Honor, even likely 42 1 Colloquy 2 his cross-examination, I don't disagree with 3 you, but what is ambush is the state-of-the-art 4 testimony which is not in his report, which is 5 not in the four corners of his disclosure. If 6 he wanted to talk about who knew what when, 7 that is true surprise. I am not aware of him 8 ever being deposed on that issue anywhere in 9 the country by me or anyone else. So if he 10 wants to talk about -- 11 THE COURT: That will be the first 12 time then. That motion is denied. 13 MR. BRUCH: That is all. 14 THE COURT: Are there any other 15 motions? 16 MR. BUDD: Yes, Your Honor. 17 THE COURT: How many more? 18 MR. BUDD: I believe two or three 19 from Crane Co. 20 THE COURT: Send the jury out to 21 lunch, Ernie, please for one hour. 22 MR. BUDD: Would Your Honor like me 23 to proceed? 24 THE COURT: Yes, I would. 25 MR. BUDD: Thank you. Your Honor. 43 1 Colloquy 2 Your Honor, we had filed on behalf of 3 Crane Co. a motion to apply a federal maritime 4 law. 5 THE COURT: I denied that motion, 6 didn't I? 7 MR. BUDD: I don't know that it has 8 been formally denied, Your Honor. So I needed 9 to make sure that we had it on the record. 10 I do understand from your comments 11 last week that you indicated you did not think 12 you were going to grant the motion. 13 THE COURT: Right. 14 MR. BUDD: But, Your Honor, under the 15 facts of this case, we have earlier in time 16 exposures of Mr. Baccus to asbestos, heavy 17 asbestos products in his navy ship service. 18 Medically, those are more significant. 19 We have exposures that plaintiff's 20 own experts in prior testimony have admitted in 21 a navy context would be sufficient unto 22 themselves to have caused his mesothelioma. 23 We have his service onboard ship as a 24 navy serviceman. There is no issue here 25 whether he is a seaman or not. There is no 44 1 Colloquy 2 issue here about whether the Jones Act and its 3 workers comp.-type provisions for people in the 4 ship industry would apply. 5 This is a straight navy case. Based 6 on those exposures and on the cases that we 7 cited in our brief, including the Executive Jet 8 Aviation case and the Rubbert v. Great Lakes 9 Dredge And Dock Company case, there is no 10 question that the record establishes both 11 location and the nexus connection that are the 12 two branches for analyzing whether federal 13 maritime law should apply to the facts of this 14 case. His exposures are onboard a navy ship, 15 his exposures are in navy settings in a navy 16 shipyard; those are even only six months out of 17 all of his years of navy exposures. The nexus 18 with his military service is also established 19 because the things he was doing, what he was 20 doing in the navy were as a navy serviceman, 21 were under direction of the navy officers, were 22 training he got from the navy, were things that 23 he was doing to make sure that the mission of 24 the ships he was serving on were, in fact, 25 going to be carried out, which is the classic 45 1 Colloquy 2 setting for a maritime law connection to a case 3 or a plaintiff's exposure in many asbestos 4 cases. And, in fact, if you look at what he 5 was doing as, according to his own testimony, 6 he was out at sea doing navy shakedown cruises 7 to make sure the ships were operating properly. 8 He was servicing equipment on ships where he 9 was exposed to asbestos to make sure that those 10 systems were working properly. 11 Both the location and the nexus tests 12 under the federal cases and the U.S, Supreme 13 Court cases for federal maritime law apply 14 here. 15 Moreover, Your Honor, the law under 16 federal maritime law with regard to what he can 17 recover and what types of claims plaintiffs can 18 assert is not dissimilar from Kentucky law. It 19 is not as though the jury would be facing a 20 question of certain maritime law for questions 21 on his federal exposures in the navy and 22 different legal questions or standards for the 23 Kentucky claims that he may claim to have with 24 regard to his work at the American Rubber 25 plant. 46 1 Colloquy 2 So the two laws actually dove tail in 3 a way that would not create any confusion for 4 the jury. 5 So we would ask the Court apply 6 maritime law certainly with respect to the 7 claims he had of exposure in the navy and 8 Kentucky law with respect to any other claims 9 he asserts. 10 MS. TYMINSKI: Yarway joins in that 11 motion. 12 MR. BURNS: As do we. 13 MS. TYMINSKI: The only 14 jurisdictional nexus between Mr. Baccus's 15 claims and Philadelphia is maritime related and 16 solely maritime related, and that is at the 17 Philadelphia shipyard. 18 MR. BUDD: May I finish my argument 19 on that, Your Honor? 20 THE COURT: Please. 21 MR. SHEIN: Your Honor, in addition 22 to the arguments we had previously made to the 23 Court asking for the application of Kentucky 24 law as opposed to federal maritime law, the 25 Court should note that the first time that the 47 1 Colloquy 2 application of federal maritime law was raised 3 was after this trial begun, which was February 4 6, 2008. We would also say that they were 5 waived in that argument as well. 6 THE COURT: Thank you. 7 That motion is denied. 8 MR. BUDD: Thank you, Your Honor. 9 Your Honor, I understand from the 10 Court's comments and our trying to move things 11 along for us that the Court will not permit us 12 a Kelly Frye hearing on Dr. Maddox. 13 THE COURT: That's correct. 14 MR. BUDD: Thank you. Your Honor. 15 If I might, for the record, just to 16 make clear the basis for our motion which has 17 been filed already challenging Dr. Maddox is 18 that there is a - 19 THE COURT: Not to interrupt you, 20 Mr. Budd, but I did say you will be able to 21 voir dire Dr. Maddox in the normal manner once 22 he takes the witness stand when he is turned 23 over to you. 24 MR. BUDD: Thank you. Your Honor. I 25 appreciate that. And if I can first explain 48 1 Colloquy 2 briefly why it is that there are problems with 3 his opinions being offered to the jury in any 4 setting, in any portion of this trial, I can 5 then explain why that solution, although we 6 appreciate it from the Court, actually doesn't 7 get us home. The fact of the matter is, there 8 is a significant analytical gap in Dr. Maddox' 9 testimony. 10 Dr. Maddox comes in and testifies, as 11 he has done in the past, that every exposure 12 above background is a substantial factor in 13 causing a plaintiff's mesothelioma. He, at the 14 same time, in a very contradictory fashion, 15 acknowledges that you and i and everyone in 16 this courtroom is routinely exposed to asbestos 17 in everyday life right here in Philadelphia, 18 everywhere in the country. Yet, none of us, 19 including Dr. Maddox, are wearing respirators. 20 None of us are at risk, according to Dr. 21 Maddox. 22 THE COURT: You should maybe thank 23 your lucky stars. 24 MR. BUDD: Well, Your Honor, the 25 problem is that he is does not have a reliable 49 1 Colloquy 2 scientific methodology that would support his 3 conclusion that every exposure above background 4 or his alternative statement that there is no 5 safe level of asbestos, he does not have any 6 medical - 7 THE COURT: Mr. Budd, to say that 8 that is -- to say that none of us in this room 9 are going to have to use respirators -- I know 10 a lot of people that have respirators. My father had one. But for you to say that, and I 12 see people walking around the city with 13 respirators. I don't know why, my father 14 didn't have asbestosis, I know that. But he 15 did have a respirator. There are a lot of 16 people walking around without respirators, and 17 I find the use of that, the manner in which you 18 just said that, to be personally offensive. I 19 wish you would change your tactic to a more 20 civil manner. 21 MR. BUDD: Your Honor, I apologize. 22 THE COURT: The words you used were 23 very inflammatory. I didn't like it, I have to 24 tell you that. 25 MR. BUDD: Your Honor, I apologize. 50 1 Colloquy 2 I did not mean for my words to be taken in any 3 way that you would find - 4 THE COURT: Look at all these young 5 men in this room and young women. Thank God we 6 don't have respirators, you know. 7 MR. BUDD: Your Honor, my point is 8 Dr. Maddox does not recommend even for himself 9 the use of a respirator to guard against the 10 risk of asbestos exposures. People may well 11 have respirators for other reasons. Your Honor. 12 My point is not to offend, but to point out the 13 contradiction for him to say - 14 THE COURT: I have heard this 15 testimony before from other experts, but not 16 Dr. Maddox. I have never heard him or met him. 17 But I have heard several of these doctors talk 18 about how asbestos in the air can lie dormant 19 and in certain people. So I mean, I don't 20 know. This is something, this is why we have 21 juries, why we have triers of fact to answer 22 these tough questions. 23 MR. BUDD: Your Honor, with all due 24 respect it goes to the Court's gate keeping 25 function under the Frye test. 51 1 Colloquy 2 THE COURT: Well, I am opening that 3 gate, because it is fair, because it has been 4 done before. It is not a surprise to you at 5 all, and we are going to proceed. I am not 6 going to reinvent this wheel of how cases are 7 going to be tried or what witnesses are going 8 to be testifying. 9 I know you are running a hearing 10 downstairs or you were last week; Judge 11 Tereshko was running a hearing down there, and 12 this is an issue that is of moment with some 13 people. But thus far, not with me. 14 MR. BUDD: Your Honor, the reason for 15 the hearing downstairs is precisely because, 16 just as has happened with Judge Colville in 17 Pittsburgh, the law has established in that 18 case and perhaps downstairs very soon that when 19 you look at the medical criteria for proving 20 and establishing the reliability of the medical 21 methodology and scientific methodology that is 22 required to make a leap from high level 23 exposures to cause mesothelioma to extrapolate 24 down to any level of exposure to cause 25 mesothelioma, which is exactly what Dr. Maddox 52 1 Colloquy 2 does, and which is what exactly is not 3 supported by the medicine - 4 THE COURT: I just had a conversation 5 with Judge Colville and his father Thursday 6 night; we talked about some of these things, okay. So I met him in person. 8 MR. BUDD: Great family. 9 THE COURT: Great family, and it was, 10 you know, there is reasonable people can differ 11 about these things and that is why we have 12 appellate courts. 13 Thank you. 14 MR. DelBELLO: Your Honor, Yarway 15 joins in that motion. And just one more point 16 on whether or not it is a legal issue or not. 17 We would just direct Your Honor's attention to 18 the Pennsylvania Supreme Court's decision in 19 the Gregg case that did discuss the single 20 fiber theory and found that that theory was a 21 fiction, and I acknowledge it is not in the 22 context of a Frye hearing except we believe the 23 words of the Pennsylvania Supreme Court in that 24 published opinion, December of 2007, are also 25 instructive and make it not -- arguably, make 53 1 Colloquy 2 it not an issue for the jury, but a legal 3 issue. 4 THE COURT: Thank you. 5 MR. SHEIN: Your Honor, we would 6 oppose the motion for a Frye hearing on Dr. 7 Maddox. 8 As the Court well knows, whether or 9 not to grant a Frye hearing is completely 10 within the sound discretion of the court. We would urge the Court that there is no reason 12 for a Frye hearing on Dr. Maddox. 13 Additionally, Pennsylvania law allows 14 an expert to testify if that expert has a 15 reasonable pretension within his expertise, and 16 we believe based on Dr. Maddox's report and his 17 qualifications, that the Court will find him, 18 that he has a reasonable pretension within his 19 expertise to so testify. 20 And, finally, to distinguish the 21 Baccus case from the Gregg case, the Gregg case 22 dealt with a three or four break cases, 23 changes, whereas Baccus case deals with many 24 years of navy and industrial exposure. And in 25 the Baccus case, Dr. Maddox is not going to 54 1 Colloquy 2 give an opinion that the Supreme Court 3 quarreled with in Gregg, He is going to talk 4 about cumulative exposures, whereas the Gregg 5 court talked about each and every fiber. 6 THE COURT: Okay. Anything else? 7 MR. DelBELLO: Two quick points. 8 This Frye argument also applies to Dr. Paskal; 9 Dr. Paskal also in the disclosure has a 10 reference to either single fiber or cumulative exposure, so that is one point. And also in 12 response, the Pennsylvania Court of Common 13 Pleas in Indiana County, in the Basils case 14 found that cumulative exposure and single fiber 15 exposure is, for practical purposes, the same 16 opinion. 17 Thank you. 18 MR. BURNS: For purposes of the 19 record, we join in this motion solely as it 20 relates to Dr. Paskal. 21 MR. BUDD: Your Honor, that is the 22 other point I wanted to add, that as to Dr. 23 Paskal, if he was going to offer the same type 24 of testimony that there is no safe exposure or 25 that every exposure counts, then the motion 55 1 Colloquy 2 would be applicable. I understand Your Honor 3 would deny it as to Paskal, but the motion is 4 one we would offer against any of their experts 5 who would say that they are going to offer or 6 attempt to offer those kind of medical 7 opinions. 8 THE COURT: The motions at the 9 pretrial hearing or a separate hearing on the 10 Frye issue testimony of Dr. Maddox is denied. 11 MR. BUDD: Your Honor, there is a 12 second feature to Dr. Maddox. 13 THE COURT: As to Paskal, too? 14 MR. BUDD: In Dr. Maddox's report - 15 THE COURT: This is a another motion? 16 MR. BUDD: It is a second feature as 17 to the issues of Dr. Maddox and what he can 18 testify about at phase two of this trial. 19 Nothing in his report talks specific to any 20 defendant, any defendant's products, any level 21 of release of asbestos from any defendant's 22 products, or that any of the defendant's 23 products would somehow be a substantial factor. 2 4 There is no way that his report, using the four 25 corners, would allow him to offer -- 56 1 Colloquy 2 THE COURT: Are you saying the same 3 thing? 4 MR. SHEIN: Same motion they made for 5 Paskal, they are now making for Maddox. 6 MR. BUDD: Well, it is different 7 because for Paskal, he has a broader, more 8 generic report. Dr. Maddox actually complied 9 with, plaintiff's counsel complied with local 10 rules, filed the report. Nothing in that 11 report talks about any defendant specifically 12 or any defendant's products specifically. Dr. 13 Maddox should not be allowed to now come and 14 testify at trial about any particular defendant 15 or any defendant's products or release from 16 defendant's products because it would violate 17 the Pennsylvania rules and local rules. 18 MR. SHEIN: Your Honor, our response 19 would be they are on fair notice and we intend 20 to present Dr. Maddox as we do Dr. Paskal based 21 on hypothetical questions. 22 MR. DelBELLO: We would join in that 23 motion. 24 THE COURT: Denied. 25 MR. DelBELLO: For purposes of the Colloquy 57 2 record, Your Honor, I believe the Crane motion 3 on Maddox requested a Frye hearing. 4 THE COURT: Crane Co. 5 MR. DelBELLO: I understand. The 6 Crane Co. motion requested a Frye hearing and 7 Yarway also filed a motion and the request was 8 to strike any experts that were going to give 9 that opinion. So I understand that motion 10 would also be denied. THE COURT: Denied. 12 Any other motion? 13 MR. BUDD: Yes, Your Honor, and 14 perhaps -- do you have something on that? 15 MR. DelBELLO: No. 16 MR. BUDD: Perhaps Mr. Wolf and I can 17 work this out, but so far he has not been able 18 to come to an agreement with us on the point of 19 whether plaintiffs would somehow argue that we 20 are legally liable for products that we never 21 made, sold or supplied, particularly never 22 made, sold or supplied to Mr. Baccus or any of 23 his work settings. 24 The Court may recall that we spoke 25 briefly last week about the fact that the 58 1 Colloquy 2 Waters & Kraue firm often in cases tries to 3 suggest that somehow a defendant of equipment 4 would be responsible for an after-applied 5 product that another person, here the navy, 6 decided to go out and buy and put on or near 7 the equipment. 8 On that point. Your Honor, if I might 9 just step over, Crane Co. sells a metal valve, 10 that is all we sell, and that is what the 11 testimony in this record shows. And, in fact, 12 not all valves -- well, not all valves are 13 insulated and not all valves need any -- in 14 fact, let me state it this way, Your Honor; no 15 valve needs insulation to function. The wheel 16 turns. The gate goes up and down. The liquid 17 flows through the valve without any need for 18 insulation on the valve whatsoever. 19 Our point is that this Court should 20 make clear to plaintiff's counsel that they 21 should not be allowed to argue any liability 22 for insulation that they may suggest was on the 23 outside of Crane Co. valves, because under 24 Kentucky law and under all traditional tort 25 law, you are not liable for a product that 59 1 Colloquy 2 causes an injury unless you made it, sold it or 3 supplied it. 4 THE COURT: But now negligence 5 exceptions are involved in the Kentucky law on 6 who should have known; am I right? 7 MR. BUDD: They are pleading Kentucky 8 law and negligence. However, the Kentucky 9 statute is clear that a product that is altered 10 or reconfigured by someone after it is sold - 11 THE COURT: But there is three -- 12 well, I guess at least two theories of 13 liability; one strict liability and I would 14 agree with you on that. But on negligence 15 theory - 16 MR. BUDD: Your Honor, on negligence, 17 whether it is Pennsylvania, Kentucky or 18 anywhere else for the most part, although, 19 admittedly, there have been one or two 20 exceptions, the restatement of torts makes 21 clear that you first analyze whether you have a 22 duty, and then whether, with that duty in 23 place, there is a foreseeable risk. There is 24 no duty of a manufacturer of a piece of metal 25 to insulation that is manufactured, researched, 60 1 Colloquy 2 sold, profited from by John Manville or any 3 other insulation company. It is not simply a 4 question of foreseeability under the law. It 5 is a question of whether there is any duty for 6 products that you have nothing to do with and that are not required for the operation of your 3 valve. 9 To give you a quick example under 10 Pennsylvania, in the Toth decision where 11 scaffolding and planking were the issue for the 12 plaintiff's injuries, it is the planking and 13 the scaffolding that caused the injury. There 14 is no way the scaffolding could have been 15 useful without the planking for the plaintiff 16 to have stood on the scaffolding. But the 17 court held that the scaffolding manufacturer is 13 not liable for an injury caused by the 19 planking. 2 0 It has been clear, we would suggest 21 here, because the valve doesn't need any 22 insulation. The valve works perfectly well, it 23 is engineered without any need for insulation. 24 So if the planking and scaffolding 25 case establishes that the scaffolding 61 1 Colloquy 2 manufacturer is not liable for injuries caused 3 by the planking, which, by definition, were 4 going to be used with the scaffolding, then I 5 offer that a metal valve manufacturer wouldn't 6 be liable for some product that somebody later 7 decides to affix to the valve without any 8 consultation, request, engineering analysis or 9 any discussion with the valve manufacturer. 10 I submit, Your Honor, that unless 11 they could establish, and they should be 12 required to offer, make an offer of proof, 13 unless they can establish that we actually 14 specified or required the insulation on our 15 valves, no duty arises in the first place. So 16 you don't get to question of foreseeability of 17 the risk of harm. 18 In a similar fashion, in Kentucky, 19 there are cases under the component parts 20 doctrine, which are very similar to what (inaudible), and those cases make clear that if 22 you supply a product and it is used in 23 combination with other products by the 24 purchaser, you are not liable for the injury 25 caused by those other products. You supply a 62 1 Colloquy 2 metal valve, the insulation, plaintiff's own 3 medical experts will admit, caused, in part, 4 the injury. There is nothing about Crane Co.'s 5 involvement in that insulation that would, 6 under the law, negligence, strict liability, or any other claim, that would make Crane Co. 8 liable for the component part when it didn't 9 cause the injury when the insulation caused the 10 inj ury. 11 I understand. Your Honor, they will 12 argue that the valve itself contributed to the 13 injury. But the point we are trying to make 14 clear so that we don't have, with all due 15 respect to plaintiff's counsel, reversible 16 error in this case, we don't have them arguing 17 to the jury that somehow insulation that the 18 navy went out and bought from John Manville and 19 put on the ships, that somehow Crane Co. has 20 any legal responsibility for that. 21 MS. TYMINSKI: Your Honor, Yarway 22 joins in that motion. And in addition points 23 out that the Kentucky statute on point that 24 oversees this issue applies in both strict 25 liability and negligence situations. 63 1 Colloquy 2 THE COURT: Do you have that statute 3 with you? 4 MS. TYMINSKI: I do. 5 MR. BUDD: We do. 6 MS. TYMINSKI: I can read it for Your 7 Honor. 8 THE COURT: I want to see it. Thank 9 you. 10 MS. TYMINSKI: You're welcome. 11 I would also point out, as Mr. Budd 12 did, that Kentucky adopts under the component 13 parts doctrine, section five, valves and steam 14 traps, which is what Yarway is in this case 15 for, are component parts and are typically 16 exculpated from liability for other 17 manufacturer's products that become 18 incorporated into the system. 19 We also ask for an instruction that 20 plaintiff's counsel not be allowed to introduce 21 evidence or argument on our duty to warn other 22 person's products, because particularly with 23 respect to Yarway products and the steam traps 24 at issue, steam traps were not insulated. And 25 so we think it would be confusing to the jury. 64 1 Colloquy 2 THE COURT: Some were and some were 3 not. 4 MS. TYMINSKI: Well, some steam traps 5 could have been Insulated. But we expect the 6 evidence in this case to show that Yarway steam 7 traps were not insulated and, in fact -- 3 THE COURT: Some Yarway steam traps 9 have insulation in copper clad asbestos 10 gaskets. 11 MS. TYMINSKI: I think we are 12 confusing the issues here. Your Honor. 13 MR. BURNS: A gasket is not 14 insulation. It is asbestos. It can be 15 asbestos but it is not insulation. 16 THE COURT: No, but in a steam trap, 17 there was metal clad or copper clad asbestos 18 gaskets placed in Yarway steam traps. 19 MR. BURNS: But that is not 20 insulation. Insulation is the white stuff. 21 THE COURT: It is pipe covering. 22 MR. BURNS: You just said for the 23 record that there was insulation in the steam 24 trap. 25 THE COURT: I meant to say asbestos. 65 1 Colloquy 2 MR. BURNS: Right. That's fine. 3 MS. TYMINSKI: Our motion here is 4 focused on our duty to warn a third party an 5 external insulation or a fixed part onto our 6 product, be it a gasket externally, insulation externally. These are things that under 8 Kentucky law, the equipment manufacturers in 9 this case do not have liability for. 10 With respect to the issue you just mentioned about the copper clad gasket that 12 potentially could have been in a Yarway steam 13 trap at some point in time, we will present 14 evidence those weren't steam traps in issue in 15 this case, but that is not the focus of this 16 motion. 17 MR. BUDD: Your Honor, you had asked 18 when we discussed this late last week for 19 Kentucky law on the point of why an equipment 20 manufacturer would not be liable for products 21 made by others and affixed to the equipment 22 after the equipment left the manufacturer's 23 hands. To make sure we got some Kentucky case 24 law for Your Honor, we put together a very 25 short brief which points out the Kentucky 66 1 Colloquy 2 statute that you have now been handed, points 3 out the Mullens cases and other cases in 4 Kentucky which are all consistent that an 5 equipment manufacturer is liable for whatever 6 it makes, sells and puts in the stream of 7 commerce, and that is the way it should be, 8 Your Honor. But an equipment manufacturer is 9 not supposed to be going to the ends of 10 spending the money, the research, the time to 11 look at any possible configuration that some 12 customer might, down the road, later do to or 13 use its product with. 14 MR. SHEIN: We haven't had the 15 benefit of reading Mr. Budd's brief. He just 16 dropped it on our table when he handed it up to 17 Your Honor. 18 But, Your Honor, the evidence will 19 show that these defendants either specified and 20 required and/or under a negligence theory knew 21 or should have known that their equipment was 22 going to be externally insulated. And if the 23 evidence is such the jury finds they knew or 24 should have known that this equipment was going 25 to be externally insulated, then they are 67 1 Colloquy 2 liable. 3 MR, BUDD: I think if Your Honor 4 reads the cases and the statute, you will see 5 that that is not the case. 6 THE COURT: Yes. 7 MS. TYMINSKI: Your Honor, just one 8 further point in response. 9 THE COURT: Have you provided these 10 cases to the plaintiffs? 11 MS. TYMINSKI: We filed a motion 12 setting forth these arguments on January 28, 13 2008. It should outline the arguments that we 14 just discussed. We did not get a response from 15 the plaintiffs, but I am sure they are aware of 16 what our arguments are. In fact, I think we 17 have all personally had these conversations 18 before. 19 MR. BUDD: We also had a previous 20 motion on the Pennsylvania law and we have now 21 provided Kentucky law. 22 MR. SHEIN: Your Honor, may Mr. Wolf 2 3 be briefly heard on Kentucky law as far as this 24 issue is concerned? 25 MR. WOLF: And we will get you some Colloquy 68 2 case law on this, this afternoon. Your Honor. 3 Kentucky 402A is a little bit 4 different. It is not just straight 402A. 5 Under Kentucky 402.A, they have stated 6 unequivocally that a manufacturer has a 7 nondelegable duty to provide a product 8 reasonably safe for its foreseeable uses, a 9 duty not abrogated by warnings to the immediate 10 purchaser. 11 MS. TYMINSKI: Your Honor, we would 12 argue that is not inconsistent with the 13 Kentucky statute right on point with this 14 particular situation which you have in your 15 hand. If you just read the first two lines of, 16 I think it is Section 411.182, I think. 17 MR. BURNS: 182. 18 MS. TYMINSKI: 182. 19 Before, as Mr. Budd pointed out, 20 before you can even reach the analysis that 21 Mr. Wolf is engaging in with his recitation of 22 the restatement, there has to be a 23 determination of whether a duty even exists, 24 and under that statute no duty exists. 25 MR. BUDD: Your Honor, it is 411.320, 69 1 Colloquy 2 paragraph one. 3 MS. TYMINSKI: Subsection one, the 4 first two lines. 5 THE COURT: May I have what you have, 6 Mr. Wolf? 7 MR. ZACHAROPOULOS: I can print this 8 out for you right now, Judge. 9 THE COURT: Anything else? 10 MS. TYMINSKI: Not on this issue. 11 Your Honor. 12 THE COURT: Any other issues? 13 MS. TYMINSKI: We do have one more 14 issue. Yarway had filed a motion to have the 15 plaintiffs disclose the parties with whom they 16 have settled in this case or have received 17 settlements. The plaintiffs did oppose this 18 motion saying under Pennsylvania law, 19 disclosure of settlements with other parties 20 are inadmissible. That the fact that they have 21 settled are inadmissible and the amounts are 22 inadmissible. 23 Our purpose in seeking this 24 information is not to get this information 25 before the jury, but it is because under 70 1 Colloquy 2 Kentucky law, in order to allow the defendants 3 to ascertain which parties or which potential 4 persons from whom settlement monies were 5 received go on the verdict form, we need to 6 know this information. 7 MR. BURNS: The practice in Kentucky 8 has always been, in the six trials I was 9 involved with, they provided at the time of 10 jury selection a list of all the companies from 11 whom they received money and then a total 12 amount. They never said I received $100,000 13 from company X, $50 from company Z. But you 14 had the total amount and you had the list of 15 the companies. You needed to do apportionment. 16 I don't know how you can do without it. 17 MS. TYMINSKI: That's right. Your 18 Honor. And the issue here is we need to know 19 and we understand Your Honor's concern. You 20 want this trial to move quickly and we all want 21 to be prepared to put on an efficient a case as 22 possible, and we aim to do that. But we need 23 to know which potential claims are at play 24 here, and just as further basis for the motion, 25 there is a Kentucky statute again right on 71 1 Colloquy 2 point. It is Section 411.182 of Kentucky 3 Revised Statutes, and it allows for disclosure 4 of parties from whom settlement monies were 5 received regardless of whether they were 6 parties in the case. So, for example, if there 7 were prelitigation claims or prelitigation 8 letters sent to a party that were typically 9 involved, involved in litigation, and that 10 party settled before the complaint was filed, 11 we would like to have the disclosure of those 12 parties. 13 MR. SHEIN: Your Honor, we would 14 oppose that. 15 If they are effective in pursuing and 16 proving a cross claim, okay, then we would be 17 happy to give that information to them. Just 18 because a plaintiff settled with the defendant 19 doesn't necessarily mean that they can prove or 20 satisfy their burden of proof on the cross 21 claim. 22 MS. TYMINSKI: Your Honor, with all 23 due respect, this has nothing to do with cross 24 claims and nothing to do with that issue. This 25 is about Kentucky law, Kentucky statute, 72 1 Colloquy 2 apportionment on the verdict sheet, and what we 3 are entitled to know. And it is pretty 4 clearcut under the law. This has nothing to do 5 with us pursuing a cross claim against anyone. 6 MR. BURNS: As Your Honor said to me 7 earlier, we can't pick and choose Kentucky law. 8 If we wanted Kentucky law, boom, we are stuck 9 with punitives; that is what you ruled. Well, 10 under Kentucky law, this is what they have to 11 disclose to us in every trial in Kentucky for apportionment. It is not a cross claim' thing. 13 It is who goes on the verdict sheet for 14 apportionment. If it is a global settlement, 15 if you, say, get a thousand dollars in every 16 meso case filed by the plaintiff, boom, we get 17 to know it. You send them a letter ahead of 18 time, you get to know it. If you took money, 19 you get to know it. Whether or not the jury is 20 going to apportion, that is our burden and for 21 the jury to decide. But we get that 22 information in Kentucky. It is in the statute; 23 it is in their custom; it is in their practice. 24 It is what you get. 25 MR. SHEIN: There is no reason for 73 1 Colloquy 2 you to get the information until the jury makes 3 a determination as to whether or not the 4 settled party is liable. 5 MR. BURNS: Your Honor, he did it at 6 jury selection because it influences who goes 7 on the verdict form. He argued successfully in 8 the back that, I think it was Bendix, whatever 9 the company was, received summary judgment. We 10 said we would like it on the verdict form. He 11 said absolutely not. They get summary 12 judgment; it has already been decided. 13 THE COURT: Well, Mr. Cottle gave me 14 a case. He told me that if there was dismissed 15 parties, the rule he gave me that I read, 16 someone gave me, it says released party. 17 MR. BURNS: That is not what I am 18 saying. 19 THE COURT: He was wrong about that. 20 MR. BURNS: Exactly. I am saying for the reasons where you can see the confusion - 22 the ones they received money from, there is no 23 confusion. Those are the companies that were 24 allowed to put evidence on without dispute 25 about apportionment. 74 1 Colloquy 2 THE COURT: Do you have the law on 3 that? 4 MR. BUDD: Yes, Your Honor. 5 THE COURT: Does plaintiff have law 6 on that issue? 7 MR. ZACHAROPOULOS: Yes, Your Honor. 8 I think, in a sense, Tom is not 9 completely incorrect. I think were where we do 10 disagree vehemently is the fact that they are 11 not entitled to know the amount of money.we 12 settle with, with defendants. 13 THE COURT: But they are entitled to 14 know the entities? 15 MR. ZACHAROPOULOS: If we settle with 16 a defendant under Kentucky law, it is pretty 17 clear that they are entitled to know who we 18 settled with. That doesn't necessarily mean it 19 goes on the verdict form. 20 THE COURT: Then you all work that 21 out. 22 MS. TYMINSKI: One clarification; we 23 are not seeking numbers. What we would like to 24 know -- 25 MR. ZACHAROPOULOS: Well, Tom just 75 1 Colloquy 2 said something about numbers. 3 MR. BURNS: In the practice in 4 Kentucky, we got the numbers, I don't truly 5 care. I am just saying - 6 MS. TYMINSKI: In Kentucky, the 7 number will come into play at the end because 8 there are set offs. But we don't need to know 9 that now. We can fight that another day. The 10 issue here is knowing not the parties, but the 11 entities with whom the plaintiff settled either 12 prelitigation or in the course of litigation. 13 THE COURT: And you agree with that? 14 MR. ZACHAROPOULOS: Yes. I have no 15 problem with that, Judge. 16 MR. SHEIN: Just because we disclose 17 the entities doesn't necessarily mean they go 18 on the verdict sheet. 19 MS. TYMINSKI: That's true. 20 MR. SHEIN: That is why my argument 21 was you are asking for the cart before the 22 horse. 23 MS. TYMINSKI: I am sorry if I 24 misunderstood that. Basically we want to know 25 what case are we putting on here and a lot of 76 1 Colloquy 2 that depends on -- 3 MR. ZACHAROPOULOS; I think, Judge, 4 touching on this issue, I think you brought the 5 issue up in the back. He wants to interject or 6 inject testimony, Mr. Baccus's testimony, regarding joint compound. All joint compound 8 defendants in this case; Bondex, GP, whoever, 9 were out on summary judgment. Under Kentucky 10 law, it is clear in order for the plaintiff to 11 be on a verdict sheet for apportionment 12 purposes the court or the jury has to find 13 fault. In this case, Judge Tereshko clearly 14 indicated there is no fault as to those 15 defendants and, therefore, they do not belong, 16 none of that testimony belongs in this case. 17 So for purposes of any testimony regarding any 18 particular manufacturer, let's say, Gardener is 19 out on summary judgment, that doesn't come in, 20 or any generic testimony regarding joint 21 compound, that doesn't come in. 22 MR. BUDD; Your Honor, I can respond 23 to that. 24 MR. SHEIN: May I, before? 25 MR. BUDD: Yes. 77 1 Colloquy 2 MR. SHEIN: The judge is now actually 3 forcing us to do what I have reached out to you 4 to do the last week, week and a. half, is to say 5 who is in this case and who is out of the case, 6 okay. So now we are being ordered to do that. 7 Maybe we can make some headway. 8 MR. BURNS: Okay. 9 MS. TYMINSKI: With all due respect, 10 we have also tried to engage in that discussion 11 and have never been able to have it. 12 MR. SHEIN: We are being ordered to 13 now. 14 THE COURT: Please address your 15 comments to the Court, 16 Yes, Mr. Budd. 17 MR. BUDD: Thank you, Your Honor. 18 I simply wanted to make sure the 19 background was understood. The plaintiff has 20 testified about 35 separate equipment asbestos 21 products he worked around, he worked on, he 22 breathed dust, and he claimed originally caused 23 his disease. 24 Some of the defendants have gotten 25 out on summary judgment, I agree with that. 78 1 Colloquy 2 Under Kentucky law, it is a different standard 3 for causation than the Gregg decision. We will 4 go back and look whether the four or five who 5 got out on summary judgment here got out 6 because of the Gregg standard or for some other 7 reason. 8 THE COURT: It says released. 9 Mr. Cottle told me dismissed. That is not what 10 it says. It says -- who handed it to me? 11 Somebody handed it to me. It says released, and released is different than dismissed. 13 There, you are. How in the world -- lets 14 say -- can you have an entity beheld to be a 15 part of apportionment when there is no way the 16 plaintiff, if the plaintiff prevailed and held 17 everyone in, would be able to collect 100 18 percent of what they are owed. 19 MR. BUDD: For two reasons, Your 20 Honor. One is because the way Kentucky law 21 works, it is to create a record that shows a 22 scientifically accurate record of who all 2 3 contributed to asbestos exposure. 24 THE COURT: So you are saying if 25 there are ten defendants and two are dismissed 79 1 Colloquy 2 on summary judgment, eight held in, and the 3 verdict was a thousand dollars, the plaintiff 4 would at best collect 800; is that what you are 5 saying? 6 MR. BUDD: No, Your Honor. 7 THE COURT: Are you saying he could 8 collect the whole thousand? 9 MR. BUDD: What I am saying is he can 10 collect according to the percentages that the 11 jurors put on the verdict form, and if they 12 find a hundred percent for one of the eight, he 13 can get all thousand from one. If they find 14 that eight and not the other two are 15 responsible, then he gets it all from the 16 eight. But if they find that, in fact, only 17 some of them are responsible, then the percent 18 the jury has determined is what is collected. 19 THE COURT: No, no. I am trying to 20 make this a little more mathematically simple 21 for me, all right? If the jury comes back and 22 everybody is 10 percent liable, including the 23 two entities where the Court has already ruled 24 is not liable, so how can a jury override a 25 court on the matter of law? 80 1 Colloquy 2 MR. BUDD: You are absolutely right, 3 Your Honor; the jury couldn't. The only point 4 I was making, Your Honor, is that if, in fact, 5 the people who got summary judgment in this 6 case under the Pennsylvania legal standard, 7 which is different than the Kentucky standard, 8 that is why - 9 THE COURT: Well, we are passed 10 summary judgment, though. 11 MR. BUDD: Your Honor, I will stand 12 down on the point now, and only if it becomes 13 important will I re-raise it. 14 THE COURT: Thank you very much. 15 Are there any other issues? 16 Mr. Budd, anymore from Crane Co.? 17 MR. BUDD: Yes, Your Honor, just some 18 quick housekeeping. 19 THE COURT: I mean on legal issues. 20 MR. BUDD: Not at this point, Your 21 Honor. But there are trial issues. We usually 22 have an agreement that you will know the 23 morning before who is being called the next 24 day. 25 THE COURT: I am not getting to that 1 0 olloquy 2 yet. 3 Do you have anymore legal issues? 4 MS. TYMINSKI: No more for Yarway, 5 Your Honor. 6 THE COURT: Anymore legal issues for 7 John Crane? 8 MR. ADAMS: Just very briefly. Your 9 Honor, I have heard both off the record and on 10 the record from counsel for plaintiffs substantial contributing factor. That is not 12 the law in Kentucky. It is substantial factor. 13 The word, contributing, does not come into 14 play. It is specifically adopted in two 15 supreme court cases; Crane Co. v. Howard and 16 THE COURT: You will work that out. 17 That is closing argument and jury charge issue, 18 okay. You will work that out. Either work it 19 out or you will both show me law and tell me - 20 we have factual cause and also I think in our 21 315 charge, it says factual cause. It also 22 talks with about, you know, does it say 23 substantial contributing factor as well, may 24 not be the only -- it may be a substantial 25 contributing factor. I think they are both in Colloquy 82 2 there, but I don't know about Kentucky law, 3 that's for sure. That's why I want you all to 4 give it to me. 5 MR. ADAMS: The word contributing is 6 not located anywhere in the statute for the 7 case law and I don't think it should be 8 addressed to the jury that way, that is my only 9 point. 10 THE COURT: There is no more legal 11 issues? Are there any other issues that need 12 to be brought up in the next 20 minutes? 13 MR. BUDD: Yes, Your Honor, and I 14 appreciate the Court's patience and indulgence. 15 First of all, we would like to have 16 an agreement that the parties the morning of 17 each day would tell the other side who they are 18 calling. We believe they are calling Captain 19 Burger tomorrow. We don't know who they are 20 calling on Wednesday. I can tell them right 21 now that we have Admiral Sergeant lined up for 22 Thursday and Dr. Forman lined up for Friday. 23 So we would like to make sure we have -- 24 THE COURT: What do you have today? 25 MR. WOLF: Well, of course, opening 83 1 Colloquy 2 and then we are going to play Mr. Baccus's 3 videotaped deposition. 4 THE COURT: Who do you have tomorrow? 5 MR. WOLF: Captain Burger. 6 THE COURT: Then what? 7 MR. WOLF: Then Dr. Maddox. 8 THE COURT: You only have one witness 9 tomorrow? 10 MR. WOLF; Yes. 11 THE COURT: Well, Burger better last 12 until 5:00 o'clock. 13 MR. WOLF: We have some other 14 documents, Your Honor. 15 THE COURT: Documents? 16 MR. WOLF: Yes. 17 THE COURT: What do you mean by that? 18 MR. WOLF: Documents against the 19 defendants. 20 THE COURT: You are going to read 21 documents in? 22 MR. WOLF: Yes. 23 THE COURT: It is going to take you 24 four hours to do that? 25 MR. WOLF: Not four hours. 1 Colloquy 2 MR. BUDD: Can they tell us what they 3 are today so I can look at our objections 4 tonight? 5 THE COURT: I am serious about lining 6 up your witnesses. 7 MR. WOLF: I have Dr. Maddox coming 8 in testifying on Thursday. 9 THE COURT: Wait awhile. No gaps, 10 Troyce. I mean, they are not going to stand 11 there and do a dance for me for four hours, 12 okay? 13 MR. SHEIN: Judge, we will work on 14 the scheduling at the luncheon recess. 15 THE COURT; You will inform the other 16 side as well. 17 MR. BUDD: Your Honor, can that 18 include the documents. I think they can read 19 those so we can get those resolved. 20 THE COURT: Yes, yes. 21 MR. BUDD: For the record, I fully 22 understand that the Court has ordered 15 23 minutes for plaintiffs and 15 minutes 24 collectively for defendants. I would simply 25 note that plaintiffs feel that we are somehow 85 1 Colloquy 2 responsible for some or a large part of the 3 7 million-dollar verdict, and I would ask that 4 defendants be allowed 15 minutes each at a 5 minimum. 6 THE COURT: No. 7 MR. BUDD: Would you grant longer 8 than 15 minutes each? 9 THE COURT: No. It is 15 minutes a 10 side, just like it is in a murder case. Both 11 sides get the same. A little more important, 12 but - 13 MR. BUDD: Your Honor, in a murder 14 case 15 THE COURT: Ever try one? 16 MR. BUDD: No. 17 THE COURT: I have tried 16. So you 18 tell me about murder cases after this case, as 19 the lawyer not a judge. 20 Anything else? 21 MS. TYMINSKI: One quick point of 22 follow-up with respect to disclosing which 23 witnesses are coming which day and also which 24 documents intend to be read in, we would like 25 to know what exhibits the plaintiffs are 86 1 Colloquy 2 planning to use. There is a pretty good list 3 of exhibits. 4 THE COURT: I am sure you can work 5 that out in the next 15 minutes. 6 MR. WOLF: Judge, one last thing. On opening argument, the one side I had, we agreed 8 to everything and I cut out basically 9 90 percent of my slides. But the one slide 10 which is gross negligence, and it is the 11 definition of gross negligence under Kentucky 12 law, may I be allowed to use that? 13 THE COURT: Yes, I have decided that 14 is what we are going to do unless there is some 15 case that says I can't. Is there a case in 16 Kentucky that says I can't? 17 MR. BURNS: We handed you the statute 18 and we handed you the cases, and I told you my 19 personal experience if they couldn't. I don't 20 expect that to carry the day, but -- 21 THE COURT: No. It is important to 22 me. 23 MR. BURNS: I don't have them in 24 front of me because I handed my only copies to 25 His Honor. I handed you that stuff when we 87 1 Colloquy 2 were in the back. 3 THE COURT: You handed them to me 4 when we were in the back? 5 MR. BURNS: Can Mr. Adams step up and 6 help me? 7 THE COURT: Yes. 8 MR. ADAMS: Yes, Your Honor. 9 MR. BURNS: Your Honor, we handed up 10 Section 411.184, about punitive damages and the 11 proofs necessary, and I handed Your Honor two 12 cases. 13 THE COURT: And malice is in there; 14 right? 15 MR. BURNS: Yes. We handed Your 16 Honor two cases which talked about how this is 17 applied, and I told you what my experience is 18 in six trials down in Kentucky, and that it's 19 not right for opening that during the trial 2 0 they place their evidence on and at a certain 21 point they approach Your Honor and say now you 22 have heard the evidence, our punitives are in 23 the games, essentially. You. as the gate 24 keeper, say I think what you put on against 25 John Crane or Crane Co. or Yarway or all three 88 1 Colloquy 2 shows malice, shows the standard, you are in. 3 If it is in, they close on it. You instruct on 4 it. If it is out, the jury never hears about 5 it. Because that is why you don't say it in 6 opening, because you are essentially deferring 7 your gatekeeping function until you hear the 8 evidence. Because punitive damages are so 9 important and so prejudicial to a defendant 10 because by their very nature they are punishing, you defer until the last minute when 12 the jury hears about, which is after the 13 evidence is in. 14 THE COURT: But the elements that go 15 into whatever punitive damages have to be 16 proven to the jury. They have to prove gross 17 negligence. 18 MR. BURNS: Correct. 19 THE COURT: Isn't it fair to tell the 20 jury that there is gross negligence? They 21 don't necessarily connote that with punitive 22 damages, do they? 23 MR. BURNS: Our position is it is not 24 and our position is that the plaintiffs have 25 shown you nothing, that this is what can be 89 1 Colloquy 2 done in Kentucky. We have handed you the 3 statute and I have told you my experience. 4 THE COURT: Hold on a second. I 5 looked at this and I think I wrote a little 6 check mark beside malice. 7 MR. BURNS: Why would the attorneys 8 be telling me in opening statements, which are 9 the purpose of opening statements -- you told 10 us in the back and you struck some of 11 Mr. Wolf's slides because you said they were 12 argument and that the purpose of opening 13 arguments is to state what your evidence is. 14 A legal standard of malice, which may 15 or may not come before the jury for their 16 consideration at the end, with all due respect, 17 is not a statement of what the case is going to 18 show, because there is very real chance in this 19 case that Your Honor might rule, boom, you 20 didn't put enough on for it to go to the jury, 21 you didn't show malice so I'm denying that they 22 be allowed to consider it. 23 THE COURT: Then you will argue later 24 when they didn't argue it to the jury that they 25 went beyond their opening statement or 90 1 Colloquy 2 something like that. 3 MR. BURNS: I just think the 4 prejudice of putting that out in front of the 5 jury; concepts of malice, concepts of willful 6 behavior, concepts of punitive damages taints the jury pool by their very being said, which 8 is the practice in Kentucky, which is why they 9 are not said until closing arguments, and that 10 is the argument. 11 THE COURT: In malice, it says here 12 it is intended, specifically intended by 13 the defendant to cause tangible or intangible 14 injury to the plaintiff or conduct that is 1R X *sO carried out by defendant both with the flagrant 16 indifference to the rights of the plaintiff and 17 with a subjective awareness that such conduct 18 will result in human death or bodily harm, 19 which is gross negligence. 20 MR. BURNS: I don't disagree, but 21 what is the point of having the plaintiff state 22 that? 23 THE COURT: Because they have to 24 prove it. I am allowing it. 25 MS. TYMINSKI: Yarway joins in that 91 2 Colloquy 2 obj ection. 3 MR. ZACHAROPOULOS: One other thing 4 that has to be addressed now because it is on 5 the video sheet. 6 MR. BUDD: We join in that objection. 7 MR. ZACHAROPOULOS: We have tried to 8 come in ~~ can I approach and show you? 9 THE COURT: Yes, you may. 10 Off the record. 11 (Discussion off the record.) 12 THE COURT: There are three 13 obj ections. 14 MR. ADAMS: Your Honor, we had asked 15 to have certain portions of the testimony 16 stricken as cumulative; page 185, line 11; page 17 185, line 18; and line 25, and page 186, line 18 six, we feel is cumulative because it asks the 19 same warning question twice. The very last 20 question deals with how, the very last question 21 from page 189, line 17 through page 189 line 22 25, I would just object to as, first of all, it 23 states facts not in of evidence. It is 24 irrelevant, it is argumentative, and the 25 prejudicial effect outweighs the probative 92 1 Colloquy 2 value. It asks how Mr. Baccus would feel if he 3 were offered information, and it is prejudicial 4 at this phase of the case where we are just 5 dealing with liability and not damages. 6 MR. ZACHAROPOULOS: As for the first 7 two questions Mr. Adams referenced, they are 8 not cumulative. If you look at the language of 9 the question, one question asks whether or not 10 he was warned about products causing lung 11 disease. 12 The second question pertained to 13 warnings as it pertained to mesothelioma, 14 whether or not he was warned that these 15 products can cause mesothelioma. They are 16 not cumulative. They are distinct in nature. 17 As to the last question, it is our 18 position that Mr. Baccus is entitled to tell 19 the ladies and gentlemen of the jury how he 20 would have felt or how he felt based on the 21 fact that he wasn't told about these warnings. 22 MR. ADAMS: In phase one. Not in 23 phase two. 24 THE COURT: I understand the 25 arguments. The objections are overruled. 93 1 Colloquy 2 MR. ADAMS: Thank you, Your Honor. 3 (At this point a luncheon recess was 4 taken.) 5 (At this point the jury entered the 6 room.) 7 THE COURT: Good afternoon. Members 8 of the Jury. 9 We are now beginning phase two of 10 this trial, which I explained to you before; we 11 call it reverse bifurcation. 12 We are now in what is known as the 13 liability phase of the trial, and the rules 14 that I gave you during phase one with respect 15 to your role are exactly the same. You are the 16 judges of the facts. I am the judge of the 17 law. 18 What will happen in phase two, in the 19 liability phase, is that there will be opening 20 statements made by the plaintiffs and also by 21 the defendants in the case. 22 Now I made a ruling on time 23 limitations to each side; that is, the 24 plaintiff's side and the defense side will have 25 strict time limits to present their opening 94 1 Colloquy 2 statements, which are not arguments. They are 3 merely statements that tell you what the issues 4 are in the case and how they intend to prove or 5 what they intend to prove. Of course, the 6 defense doesn't have to give an opening 7 statement at this time. They can waive it 8 until a later time because they do not have the 9 burden of proof. 10 Again, the plaintiffs will present 11 their evidence on liability first and the 12 defendants may also present liability evidence. 13 Both sides may present rebuttal evidence. The 14 side calling the witness conducts the direct 15 examination and the opposing side cross 16 examines. 17 Again, I may ask questions to clarify 18 certain facts. However, I may do that or I may 19 not, but if I do, don't consider my questions 20 any more or less important than the lawyers' 21 questions. 22 After testimony counsel will present 23 closing arguments, and while you should 24 consider these arguments carefully, please 25 remember they are not evidence and, similarly, 95 1 Colloquy 2 counsel's questions are not evidence. Only the 3 answers you hear from the witnesses are 4 evidence. 5 You should not speculate a fact is 6 true because counsel assumes or suggests that it is true. Only trial testimony, exhibits are 8 evidence, and you may consider them only. You 9 may only consider them in deliberations. 10 Evidentiary matters are governed by 11 legal rules and, therefore, counsel will 12 sometimes object, and I will rule on those 13 objections, and you must not consider testimony 14 or exhibits where I sustain the objection or 15 which I strike from the record. However, you 16 should not assume rulings indicate opinions 17 because you are the sole fact finders, not the 18 Court. 19 Counsel and I may be required to take 20 up certain matters, as you well know, outside 21 of your hearing. Again, we may use the 22 courtroom or my chambers or over at sidebar. 2 3 You alone. Members of the Jury, must determine 24 a witness's credibility. Look to see whether 25 witnesses have any interest in your verdict. Colloquy 96 2 friendship, animosity, demeanor, bias, 3 prejudice, accurate or inaccurate memory or 4 ability to acquire evidence, consistency or 5 inconsistency in their testimony as well as the 6 reasonableness or not of their testimony 7 considering all the other evidence. 8 Both parties, I believe, will call 9 expert witnesses or all parties will call 10 expert witnesses, I believe. Expert witnesses 11 have special knowledge, skill, experience, 12 training or education in a particular science, 13 profession or occupation. Experts may testify 14 on anything in which they are skilled, and you 15 will hear other types of experts than you heard 16 already. You heard medical experts before. 17 But now you will hear, for example, not to 18 exclude anyone, but you will hear an industrial 19 hygienist, you will hear more medical evidence. 20 You may hear, I believe, some of the parties 21 are going to call witnesses that can talk to 22 you about aspects of the occupations that 23 people were involved in; if I am not correct, 24 for example, there will be people who know 25 about navy activities from both sides. And 97 1 Colloquy 2 they will be expert witnesses. 3 In judging an expert's opinion, you 4 should consider their qualifications, 5 reliability in reaching an opinion, but you are 6 not bound by the expert's opinion merely 7 because they are experts. You may accept or 8 reject them as you would any other witness and 9 do what you think is appropriate. 10 There will be videotaped testimony, 11 video depositions that were taken under oath. 12 They are entitled to the same consideration you 13 give live testimony, where you judge it, weigh 14 it equally. This part, phase two, as in phase 15 one, plaintiffs have the burden of proving the 16 contentions which entitle them to relief and 17 defendants are not required to offer evidence 18 on their own behalf. 19 When parties have the burden of 20 proof, their contentions must be proved by a 21 fair preponderance of the evidence. A fair 22 preponderance of the evidence means you are 23 persuaded a contention is more probably 24 accurate and true than not true. Think, if you 25 will, of an ordinary balance scale with a pan 98 1 Colloquy 2 on each side. On one side place all the 3 evidence favorable to the plaintiff. On the 4 other place all the evidence favorable to the 5 defendants. If, after considering the 6 comparable weight of the evidence, the scales 7 tip ever so slightly or to the slightest degree 8 in favor of plaintiffs, your verdict must be 9 for the plaintiffs. If the scales tip ever so 10 slightly or in the slightest degree in favor of 11 the defendants, or if the scales are balanced, 12 your verdict must be for the defendants. 13 Jurors, don't discuss this case until 14 you hear the evidence, receive your legal 15 instructions, and begin deliberations. Do not 16 allow others to approach you, especially 17 counsel, parties or witnesses. Please 18 understand that we may not even say hello. We 19 must avoid all appearances of impropriety. 20 While you must follow my legal 21 instructions, you, Members of the Jury, are the 22 sole fact finders. Your recollection and not 23 mine and not counsel's controls. You must 24 decide all questions of credibility, weight and 25 fact, including inferences to be drawn from 99 1 Colloquy 2 those facts. 3 You may continue to take notes during 4 the testimony in phase two. 5 I will give you other instructions in 6 addition to these in my final charge. You should consider all the instructions a 8 connected series, because taken together they 9 constitute the law. 10 We have for the plaintiff, Mr. Wolf. 11 Are you ready to open? 12 MR. WOLF: Yes, Your Honor. May I 13 proceed? 14 THE COURT: Yes. 15 MR. WOLF: Thank you, Your Honor. 16 Good afternoon, ladies and gentlemen. 17 THE JURY: Good afternoon. 18 MR. WOLF: Before I begin, again, I 19 want to thank you for your time and patience. 20 I don't want to repeat myself as I did in phase 21 one, but I am the first one to recognize that 22 this is a great sacrifice on your part; time 23 away from your jobs, your family. I certainly 24 appreciate it and I know the Baccuses do, too, 25 and I just want to thank you again. 100 1 Colloquy 2 Phase two is obviously a little bit 3 different than phase one. And I want to talk 4 to you about that real quick. In phase two, I 5 think you are going to find that as the 6 evidence comes in, it is basically a relatively 7 simple case. But there a couple things I think 8 you need to focus on. 9 Number one is the defendants' 10 products and were they unreasonably dangerous. 11 Okay? That part of the evidence, you will hear 12 through phase one, focuses on the product, 13 okay; that is the product you need to focus on. 14 Was it unreasonably dangerous as it was put 15 into the stream of commerce? 16 Secondly, were the defendants 17 negligent? We are claiming both. That, you 18 focus on, ladies and gentlemen, is the conduct 19 or lack thereof, okay? 20 So we are talking about the 21 defendants' products were unreasonably 22 dangerous. You need to listen to the evidence 23 and focus on the product itself and see if it 24 was unreasonably dangerous as they were put 25 into the stream of commerce. 101 1 Colloquy 2 Secondly, you need to listen to the 3 evidence and see if the defendants were 4 negligent. In other words, did they do 5 something that an ordinary and reasonably 6 prudent person would have done under the same or similar circumstances or didn't they do 8 something they should have done, okay? 9 So that is why the first one focuses 10 on products, the second one focuses on conduct. 11 Next down in that third paragraph, we 12 will prove with evidence that the defendants' 13 products were a substantial factor in causing 14 Jim Baccus's mesothelioma. Then I have got in 15 parentheses they do not have to be the sole 16 cause. I think at the end of the case, you 17 will be instructed by the judge that there can 18 be more than one cause of the mesothelioma. I 19 only have to prove that these three defendants' 20 products were a substantial factor in causing 21 the mesothelioma that took Mr. Baccus's life. 22 You are going to hear quite a bit 23 about history. And why that is important, what 24 was known back years ago? You are going to 25 hear a lot about that. 102 1 Colloquy 2 The evidence will show that Crane 3 Co., Yarway and John Crane either knew or 4 should have known that their asbestos products 5 were dangerous. And if you look at that in 6 white, there are two parts to that; either that 7 they actually knew or that they should have 8 known. In other words, had they bothered to 9 take the time to look and see the dangers of 10 asbestos. It is a two-part test; knew or 11 should have known, and we will bring you 12 evidence of that. 13 Evidence of what was known. Very 14 briefly, I am going to give you a synopsis of 15 some of the general, more important articles 16 and studies that were out there. All the way 17 back in 1930, there was a landmark study over 18 in England, Merriweather and Price. It was 19 kind of the equivalent of the surgeon general 20 that we have today. They had a big study. 21 They had a lot of asbestos products being made 22 back then in England, and Merriweather and 23 Price found that asbestos can cause death, 24 asbestos products can pose a hazard. Asbestos 25 diseases are latent diseases. You heard about Colloquy 103 2 that in phase one. In other words, you don't 3 breathe asbestos in and get sick the next day. 4 It takes many years for the person to start 5 having symptoms and problems. And they also 6 said if you can control the dust, you can control the disease. In other words, all the 8 way back in 1930, they realized it was the 9 asbestos dust that was causing the disease and 10 death in workers working with asbestos 11 products. 12 In the last part they said, and I 13 think this is important, they said education of 14 the worker is key. All the way back in 1930, 15 they said you have got to educate the worker. 16 You have got to apprise the worker of the 17 danger so that the worker can protect himself 18 or herself. Okay. 19 Going on down through history, 1935, 20 another big study was out, published, asbestos 21 linked to lung cancer, all the way back to 22 1935. 1949, JAMA, Journal of the American 23 Medical Association, which you will hear is 24 probably the most widely read journal of all 25 medical doctors in the United States. They all 104 1 Colloquy 2 have it in their office. They had an article 3 in JAMA all the way back in 1949 that says 4 asbestos causes cancer, and that is the most 5 widely read journal of medical professionals in 6 this country today and it was back then. 7 Another big study in 1955, asbestos 8 causes cancer proven beyond doubt; that is 9 1955. 10 Moving on up, in 1960, there was a 11 study by Wagner; he said asbestos causes not 12 only various forms of cancer, but a very 13 particular type of cancer which is 14 mesothelioma, which you heard a great deal 15 about in phase one. 16 Then I just threw in for us 1951 to 17 1955, that was when Jim was in the navy and 18 exposed to asbestos while working in the navy. 19 And then 1957 to 1977, 20 years after 20 that, he worked at American Synthetic Rubber, 21 where he was exposed to asbestos while at work. 22 We will bring you evidence that there 23 was no warnings on any of these defendants' 24 products at those work sites. 25 The defendants will claim, number 105 1 Colloquy- 2 one, our asbestos products are safe. They are 3 also going to claim anything but chrysotile, 4 and I am going to talk more about that in a 5 second, and they are going to say it was the 6 other asbestos products that caused Jim's 7 mesothelioma. And I want you to pay particular 8 attention to these claims. I told you at the 9 beginning of this trial that you were judges 10 without robes, that you were to judge the 11 evidence, test the evidence. I ask you to 12 judge my evidence and test my evidence. But I 13 also ask you to judge and test the evidence 14 that these defendants are going to put on in 15 that respect, and test it and see if it is 16 credible or has any weight at all. 17 You are going to see John Maddox, who 18 you saw by video deposition in phase one. He 19 is actually going to testify live in the 20 courtroom and talk about a number of things 21 that he did not discuss in phase one, and in 22 particular the different types of asbestos 23 fibers. And it is kind of hard to see. If you 24 can read up there, the first one is chrysotile, 25 the second is amosite, and the third one is 106 1 Colloquy 2 crocidolite. He is going to talk about the 3 properties in asbestos. 4 If you can kind of look over to the 5 left, that is a picture of some onions. You 6 are probably wondering why is there a picture 7 of onions up there. Well, here is why. 8 Asbestos fibers are invisible to the naked eye. 9 It takes a very powerful microscope to see a 10 single fiber. They are odorless. They have no 11 smell. They are tasteless. They do not in any 12 way warn the body that they are toxic, okay? 13 A good example of something that is 14 ammonia, if you smell ammonia, if you get a big 15 whiff of ammonia, it will burn your nose, your 16 eye. You will draw back and know you shouldn't 17 be breathing that. If you breath too much 18 ammonia, it will kill you. Asbestos is not 19 like that. It doesn't have any of those 20 properties to warn the human body. Why is that 21 important? Because without a warning there is 22 no way for a person to know they are inhaling 23 these invisible, tasteless, odorless fibers 24 that can give them a terminal cancer many years 25 later. 107 1 Colloquy 2 You are going to here the difference 3 between chrysotile, araosite and crocidolite 4 quite a bit. The evidence is going to be, 5 though, that with regard to chrysotile, that if 6 all the asbestos used in this country in the 7 United States starting back in the 1920s and 8 T30s, all the way up through the '70s, 9 95 percent of that asbestos was chrysotile 10 asbestos; in other words, the overwhelming 11 majority. Only five percent was the amosite and a little bit was crocidolite. Chrysotile, 13 that is the one that 95 percent of all the 14 asbestos products were made from in the United 15 States. 16 Dr. Maddox is going to testify that 17 it is generally accepted in this country and 18 around the world by experts that chrysotile 19 asbestos products are a major cause of 20 mesothelioma. 21 You will hear some evidence that 22 these other two types; amosite and crocidolite, 23 also cause mesothelioma, and I am not disputing 24 that. And it may take less of those types of 25 asbestos to cause mesothelioma, but all three 108 1 Colloquy 2 types cause mesothelioma, and the fact that 3 chrysotile was by far the most common asbestos 4 used in this country speaks volumes. 5 Dr. Maddox will also testify that the 6 repeated and long-term exposure to the asbestos 7 from the products from John Crane, Yarway and 8 Crane Co.'s products were each a substantial 9 factor in causing the mesothelioma that killed 10 Jim Baccus. Okay. That is why he is coming 11 back in phase two. 12 You have to pay some attention, you 13 will hear Jim's testimony again this afternoon. 14 You may be saying, well, why, Mr. Wolf, are you 15 bringing and making us endure that videotaped 16 deposition again. Well, there were certain 17 portions of that that you were not allowed to 18 hear in phase one. Those have been edited back 19 in of his testimony in phase two and that is 20 why you are going to hear his deposition 21 testimony again that has been altered, and you 22 will hear him talk about the products from 23 Crane Co., Yarway and John Crane, how he used 24 those products not only in the navy, for those 25 four years, but during the 20-year period that 109 1 Colloquy 2 he worked at American Synthetic Rubber, and how 3 when he used those products he had to 4 manipulate asbestos products to do the work as 5 a machinist and that those released fibers and 6 he breathed those fibers repeatedly, not on one 7 occasion, not on two occasions, but on many, 8 many occasions. 9 You are also going to hear from 10 Captain Francis Burger. I won't go through 11 that in great detail. Captain Burger is going 12 to talk to you about the navy and the products 13 on navy ships. He has a bachelor of science in 14 marine electrical engineering from 15 Massachusetts Maritime Academy. He was 16 actually in the United States Navy. He was an 17 engineer officer aboard numerous ships for 18 several years, and you will hear what he did 19 and how he supervised people; that last ship 20 where he was a first lieutenant, the USS 21 Sacramento. There were 6,000 sailors aboard 22 that vessel alone, very large vessel, lots and 23 lots of equipment on there. You will hear him 24 talk about the products from Yarway, Crane Co. 25 and John Crane, and how they were used in the 110 1 Colloquy 2 navy, and how a machinist such as Jim would 3 have to work on those products on a regular 4 basis and how asbestos would be released in the 5 normal routine practice of working on the 6 product and where they were on the ships. He 7 was also a program manager for Lockheed 8 Shipbuilding; project engineer for Eagle 9 Shipbuilding, and he was a professional 10 engineer for naval architecture and marine 11 engineering for the naval ships system here and 12 close by in Washington, D.C. He will come live 13 and you will hear from him. 14 You are also going to hear from 15 industrial hygienist, Steven Paskal. He is 16 also an attorney. He is probably smarter than 17 some of us and decided to do something else 18 instead of going into the practice of law. He 19 got his J.D. from Georgetown. He also has his 20 master of science in industrial hygiene from 21 close by in Pittsburgh, Pennsylvania. He has a 22 bachelor of science in chemistry. He also 23 worked for NASA as an industrial hygienist. He 24 worked for the Pentagon as an industrial 25 hygienist; for the State of California, for the 111 1 Colloquy 2 U.S. Navy at Long Beach Naval Shipyard, and 3 also at some other places. Steven Paskal is 4 going to talk to you about industrial hygiene. 5 It is kind of an odd thing you probably haven't 6 heard much about. It is basically just the 7 science of keeping factories or workplaces 8 clean so that people that are working in those 9 places do not get disease; it is as simple as 10 that in a nutshell. What is he going to say? 11 Mr. Paskal is going to come in and say asbestos 12 packing and asbestos gaskets when removed by a 13 wire scraper and brush in the same manner Jim 14 talked about, not only how he did it in the 15 navy, but during his 20 years at American 16 Synthetic Rubber, it releases large amounts of 17 asbestos into the breathing zone of the worker 18 and such exposures are at dangerous level that 19 put people like Jim Baccus at a much greater 20 risk for the development of mesothelioma. 21 Lastly, ladies and gentlemen, gross 22 negligence. We talked about, at the very 23 beginning, the product and whether or not the 24 product that these defendants made was 25 unreasonably dangerous as it was put into the 112 1 Colloquy 2 stream of commerce with asbestos or asbestos 3 containing parts without a warning and also 4 whether they were negligent in doing what an 5 ordinarily prudent person would have done or 6 would not have done, but also you are going to 7 have this issue, gross negligence, which means 8 a wanton or reckless disregard for the lives of 9 and safety of other persons, including the 10 plaintiff, or a willful or malicious act. And 11 I think what you need to do as you listen to 12 the evidence as we proceed in phase two is ask 13 yourself as the evidence comes in, number one, 14 was the product unreasonably dangerous. 15 THE COURT: Forty-five seconds. 16 MR. WOLF: Thank you, Your Honor. Were the defendants negligent in 18 failing to do what an ordinary prudent person 19 should have done based on what they knew or 20 what they should have known, and, lastly, did 21 they have a reckless disregard for the lives 22 and safety of other persons such as Jim Baccus? 23 I think, ladies and gentlemen, when 24 you hear all the. evidence, you will find that 25 the evidence supports a yes to all three of 113 1 Colloquy 2 those. 3 Thank you. 4 THE COURT: Thank you, Mr. Wolf. 5 Mr. Cottle. 6 MR. COTTLE: Your Honor, may I 7 approach the jury? 8 THE COURT: Yes, you may. 9 MR. COTTLE: May It please the Court. 10 Good afternoon, counsel. 11 Good afternoon, Baccus family. 12 Good afternoon, ladies and gentlemen. 13 And, now it is my pleasure again to 14 talk to you. I haven't had an opportunity to 15 speak with you since about a couple weeks ago. 16 So I want to introduce myself again and who I 17 represent. 18 My name is Eric Cottle, and together 19 with my partner, Terry Budd, who wasn't here to 20 assist me during the first phase of the case, 21 we represent the ladies and gentlemen of Crane 22 Co. 23 And like Mr. Wolf, we do thank you 24 and appreciate the time and attention you have 25 given all the attorneys in the courtroom, the 114 1 Colloquy- 2 lawyers, and the issues and the family during 3 the first phase of the case. 4 We are very excited to now get to the 5 second phase of the case. You may recall there 6 were two sides to the story we talk about 7 before, and what I want you to do in the time I 8 have to open and introduce myself and my client 9 to you is just to walk you through the other 10 side of the story. 11 . Will you dim the lights? I am going 12 to step over here. 13 MR. BUDD: Your Honor, if I might, it 14 is five minutes for each? 15 THE COURT: Five minutes for each; 16 fifteen minutes a side, plaintiffs and 17 defendants. 18 MR. BUDD: Thank you, Your Honor. 19 MR. COTTLE: Thank you. 20 THE COURT: We have three, 45 left. 21 MR. COTTLE: Crane Co. made a number 22 of different values, but let me get to this 23 case here and tell you what this case is all 24 about. This case is about the plaintiff, 25 Mr. Baccus, who worked, while working for the Colloquy 115 2 navy, was exposed on a daily basis to a 3 significant amount of thermal insulation. 4 The navy specified the use of all 5 equipment that is onboard the ships, failed to 6 provide the employees on the'ships adequate 7 protection from that product. 8 Now what does that mean and why is it 9 important? It is because Crane Co. did not 10 manufacture or supply any of the insulation 11 used on any of the two ships that Mr. Baccus 12 worked on. 13 Now we are going to get into valves 14 in a little while, but if Crane Co. had valves 15 on the ship, not just had valves, but some of 16 the valves may or may not have contained 17 asbestos, and that is very important for you to 18 know. 19 Of course, Crane Co. valves were 20 safe, and during the relevant time period, 21 people thought those valves were safe, and 22 Crane Co. at all times exercised reasonable 23 care and brought their designs and 24 manufacturing precisely to the level of care 25 that was known and understood during the 116 1 Colloquy 2 relevant time period. 3 Crane Co. briefly, it is a 4 150-year-old company founded by two brothers 5 out of Chicago. 6 We talked about valves in the first 7 phase of the case, but what is important for 8 you to understand at this time is that Crane 9 Co. did not mine asbestos, did not manufacture 10 asbestos-making products, and it did not mill 11 asbestos, as that term is understood. 12 If I can have the lights for one 13 second, Ernie, I just want to go briefly go 14 over the valves. 15 I say that the valves were safe then 16 and are safe now, and I think it is very 17 important for you to understand some of the 18 basic mechanics and part of the valves. This 19 is a Crane Co. valve made out of metal, as you 20 can see. This is sort of how it was shipped at 21 the time in the navy. It basically has a top 22 part called a bonnet. It has the wheel here 23 that you turn, and it has stem in the middle 24 which is a little screw device that you can't 25 see. Inside this area here would be a gasket 117 1 Colloquy 2 and also inside the casing of the valves would 3 be packing. You heard the testimony before 4 that is to prevent fluids or hot gases from 5 leaking or injuring workers. 6 Now as you can see, we are talking 7 about a very small amount of material, whether 8 the gasket or packing even contained asbestos 9 that is - 10 THE COURT: One minute. 11 MR. COTTLE: -- that is contained 12 within the small body of this valve. So all 13 the asbestos we are talking about is contained 14 within the valve. 15 You can turn the lights back on. 16 The valves on these ships were built 17 to very precise navy specifications, and you 18 will learn the systems were engineered by the 19 navy. There are many different types of valves 20 and not all the valves contained packing or 21 asbestos. Mr. Baccus testified, it is very 22 important, that in the navy he used other types 23 of packing and gaskets, which were paper and 24 also rubber. 25 We will get into the science a little 118 1 Colloquy 2 bit later, but not all asbestos is harmful, and 3 we talked about chrysotile versus amosite 4 asbestos. Asbestos is a naturally occurring 5 mineral, but the gaskets and packing, the 6 evidence will show, released a very small 7 amount of chrysotile asbestos, which is not 8 harmful. 9 Also, the evidence will show the navy 10 had complete control over what it did on the 11 shipyards. 12 THE COURT: Mr. Cottle, that is your 13 five minutes. 14 Next, Mr. Burns. 15 MR. COTTLE: Thank you. 16 MR. BURNS: Can I have the lights, 17 please. 18 Good afternoon. I have not had a 19 chance to talk to you yet. 20 My name is Thomas Burns, along with 21 Bill Adams, and Dan Griffin who was here for 22 phase one but isn't here today. We are 23 representing John Crane, and here is what we 24 are here to talk to you about. First of all, 25 we are not here to defend asbestos. I am not 119 1 Colloquy 2 here to tell you asbestos doesn't cause 3 disease. I am not here to tell you that 4 asbestos is safe. I am not here to tell you 5 asbestos is good. 6 I am here to talk to you about 7 packing and gaskets. They are the only product 8 in this case that John Crane manufactured, sold 9 or distributed, and, indeed, the only asbestos 10 containing products that John Crane ever made. 11 As Mr. Cottle was just talking about, 12 he used these in steam systems. If you ran a 13 pipe into this valve, you wouldn't want to have 14 metal to metal. It would leak. You'd cut to 15 fit a piece of gasketing material. You take 16 this packing; it is covered in graphite on the 17 outside so it is slippery. You put that 18 inside. That is what gasket you are packing. 19 You will hear because of the way 20 these products are made, you are going to hear 21 because of the way these products are made, it 22 is important that they remain whole. The 23 asbestos that is put inside is mixed together 24 with rubbers, lubricants, oils and other things 25 that bind it together. Because the purpose for 120 1 Colloquy 2 this was so that it could take heat. If all 3 the asbestos was here or here or here, if the 4 heat hit another place, you would have a steam 5 blow, and that would kill human beings. That 6 is the way the products are made. You are 7 going to hear why that is important. 8 Now I only have five minutes so there 9 are only two other areas I want to touch on. 10 One is what is called the state-of-the-art and 11 you saw some of that in plaintiff's opening. 12 That is essentially what was known or should 13 have been known. 14 Two things to know about the 15 state-of-the-art when we started out; the 16 Merriweather and Price article they had up from 17 the 1930s made an exception for gaskets and 18 packing. Merriweather and Price talked about 19 who could get worker's compensation in London 20 in the '30s for asbestos-related disease. They 21 specifically excluded gaskets and packing 22 because they said there was not enough dust 23 released to get you sick. 24 In 1972, the United States government 25 came out with OSHA, and said if you have an 121 1 Colloquy 2 asbestos-containing product, you must put a 3 warning label on it, but there was an exception 4 for products. Gaskets and packing were 5 excepted. From the beginning of the 6 state-of-the-art the in '30s until 1977, when 7 Mr. Baccus stopped working with gaskets and 8 packing, John Crane was excepted, gaskets and 9 packing were excepted from having to warn. It 10 was not required because of the dose, and the 11 reason for that is -- I jog. I jog on the 12 streets of Philadelphia when I am here at the 13 Marriott. Cars drive beside me. I inhale 14 carbon monoxide. It doesn't kill me. I don't 15 inhale enough of it to get me sick. There is 16 not a strong enough dose. It is the same with 17 asbestos. Asbestos is in the air we all 18 breathe. The evidence is going to show if I 19 were to drop dead right now and you performed 20 an autopsy on me, you would find asbestos in my 21 lungs. No medical doctor is going to testify 22 to you that that can get you sick. It is not a 23 strong enough dose. 2 4 The dose of asbestos released from 25 John Crane's chrysotile gaskets and packing is 122 1 Colloquy 2 below the dose that is in the ambient air that 3 we all breathe; that will be what the evidence 4 shows in this case. To put on that evidence we 5 are going to call an industrial hygienist named 6 Dr. Francis Toca. He has his Ph.D. in 7 toxicology in preventative medicine. He was 8 voted one of the ten most influential 4*- Vy 9 industrial hygienists of the 20 century. 10 He is the former president of the American 11 Industrial Hygiene Association, the largest 12 such organization in the world, and the former 13 head of Industrial Hygiene and Safety at D.S. 14 Steel, where he is in charge 15 THE COURT: Fifty seconds. 16 MR. BURNS: -- of 300,000 workers. 17 We will also have Dr. Michael 18 Madison, a Ph.D. chemist, who performed tests 19 on John Crane products to see what is released 20 from them. 21 They will call no such witness. They 22 will show you the low level. Dr. Toca will 23 talk about it. Then either Dr. Crapo or Dr. 24 Barrett will tell you that dose does not get 25 human beings sick. 123 1 Colloquy 2 Thank you, 3 MR. DelBELLO: May I open. Your 4 Honor? 5 THE COURT: You may. 6 MR. DelBELLO: Members of the Jury, 7 hello. 8 THE JURY: Hello. 9 MR. DelBELLO: My name is Jim 10 DelBello and I represent Yarway Corporation. 11 As you heard, the defendants have 12 been excited to get to phase two of the trial 13 so we can tell yon what we believe the case is 14 about, and we agree that this case is about 15 Mr. Baccus's exposure to asbestos while he was 16 at work. 17 The first thing I want to talk about 18 is his first job where he was exposed to 19 asbestos, and that was in the United States 20 navy. About of 60 years ago, Mr. Baccus joined 21 the navy, and the United States was at war in 22 Korea, and America was fighting the spread of 23 Communism at that time and we had just finished 24 with the largest war, the largest modern war, 25 World War II, a few years before. 124 1 Colloquy 2 In World War II, America was 3 attacked. Over 400,000 Americans lost their 4 lives in fighting that war overseas. In the 5 Korean War, over 50,000 Americans lost their 6 lives fighting In Korea. Thousands of 7 Americans were prisoners of war. They were 8 captured; many of them were tortured and 9 killed. And there was a draft at this time 10 where many young men were being called up by 11 the government and forced to fight in the war, 12 in the Korean War. 13 Mr. Baccus joined the navy at that 14 time and he joined up and he was in the navy 15 for four years and you will hear he served on 16 two ships. He served on one called the Block 17 Island. And one this one here is called the 18 USS Wasp. It is an aircraft carrier. 19 So you may be wondering, what was 20 life like in the navy. And I think everybody 21 probably knows that once you are in the armed 22 forces or the military, Uncle Sam has got you, 23 and you give up a lot of your freedom and a lot 24 of the control of your life; that was the case 25 and we will hear about this from Mr. Baccus for 125 1 Colloquy 2 those four years when he served aboard these 3 ships. The navy tells you pretty much 4 everything to do. It tells you when to sleep, 5 it tells you where to sleep. It tells you when 6 you eat, what you eat. It tells you where to work, when you have to work, how to do your 8 job. I mean, every last detail is scripted by 9 the U.S. Navy and by the government when you 10 are in the armed forces, and there is a good 11 reason for that. The country is at war and 12 tens of thousands or hundreds of thousands of 13 people are dying in these wars. So the navy is 14 very, very serious and very specific about what 15 they tell you to do. 16 So you may be wondering about these 17 ships. Here, this is the Wasp; that is an 18 aircraft carrier, and that is an enormous, 19 enormous vessel. I was trying to figure out 20 how to describe it, and I think that the best 21 way is if you were to take the Wasp out of the 22 water and put it on Market Street and turn it 23 upside down, there would only be a couple 24 buildings in Philadelphia that would be roughly 25 that size; like Liberty Place at 17th and 126 1 Colloquy 2 Market is basically the size of the Wasp. The 3 Block Island wasn't small, either. If you turn 4 the Block Island upside down, it is basically 5 the size of City Hall. So when you for lunch 6 one day, take a look at the skyline and take a 7 look at the buildings, that is what the Wasp 8 looked like. It weighed over 9 54 million-pounds. It was an aircraft carrier 10 and it could carry up to 100 airplanes on it. 11 These ships are described as like moving war 12 machines or moving cities because there would 13 be three or 4,000 men would live on these ships 14 for months. So these ships had everything. 15 They had hospitals, they had to provide food, 16 they provided your clothes for you. If you are 17 In the navy, you don't decide what to wear. 18 They tell you what to wear but they do your 19 laundry. They tell you how to cut your hair, 20 but they cut your hair. They do all this 21 stuff, and all those options are available on 22 the ships themselves. 23 So you may be wondering, you know, 24 how is the navy able to do all this at once? 25 Well, you probably won't be surprised to hear 127 1 Colloquy 2 that the navy is also specific about the design 3 of these ships. They design every square inch 4 of those ships with specific specifications and 5 they tell manufacturers of products exactly how 6 to build things. 7 Yarway built valves and steam traps 8 for the navy, and the navy specified how that 9 was to be done. 10 Another important thing used by the 11 navy was asbestos insulation, and they needed 12 it because these ships are driven by steam 13 power, and there are miles and miles and miles 14 of pipe, and huge boilers like hot water 15 heaters that get hundreds and hundreds of 16 degrees and they boil steam through this thing 17 and let the that huge sky scraper in the sky 18 fight a war in the ocean. 19 Asbestos was used and specified by 20 the navy to insulate those miles of pipes and 21 they literally used tens of thousands of pounds 22 of asbestos insulation to insulate the pipes 23 because asbestos has a property that holds its 24 shape. 25 Thank you very much. 128 1 Colloquy 2 THE COURT: Thank you. 3 MR. DelBELLO: And one more quick 4 point. 5 THE COURT: Thank you, Mr. DelBello. 6 MR. WOLF: Your Honor, at this time 7 plaintiffs would like to play the videotaped 8 deposition of Jim Baccus. 9 THE COURT: All right. 10 (At this point the above-mentioned 11 videotape was viewed by the jury.) 12 MR. BURNS: This is Thomas Burns. 13 Earlier today when we were making 14 pretrial motions concerning Dr. Paskal, I 15 indicated that Dr. Paskal, to the best of my 16 knowledge as national counsel for John Crane, 17 had never testified at trial in a case 18 concerning John Crane. My office doesn't 19 handle the cases in California for a variety of 20 reasons. 21 I talked to California counsel on 22 Friday. They had indicated he never testified 23 at such a trial. 24 At 2:03 p.m., I received an email 25 from a paralegal from my California counsel 129 1 Colloquy 2 with an attached transcript that apparently Dr. 3 or Mr. Paskal had been a witness at a 4 California trial involving John Crane last 5 year. 6 I haven't read the transcript. I 7 don't know what testimony he gave, but to the 8 extent that I might have misrepresented 9 something to either this Court or to anyone in 10 the future reading this transcript, that has 11 both, I would like to clear that up for the 12 record because it was not my intention and, 13 obviously, again, as I stated this morning, if 14 his testimony had been disclosed to me in 15 California, I am bound by that and I certainly 16 don't argue that it was not disclosed. 17 THE COURT: Thank you, Mr. Burns, for 18 the update and your candor to the Court. 19 MR. WOLF: Your Honor, I am glad to 20 report Mr. Paskal will be here first thing in 21 the morning to go on and then we will follow 22 immediately with his exam and cross, with 23 Captain Burger. So I have got two experts 24 lined up for tomorrow. 25 MR. DelBELLO: Paskal first. 130 1 Colloquy 2 MR. WOLF: Paskal first and then 3 Burger. 4 THE COURT: Shall we start at 9:30 5 tomorrow? 6 MR. WOLF: They are coming in this 7 evening. 8 THE COURT: Then we will start at 9 9:30. 10 MR. WOLF: And Dr. Maddox will be in 11 tomorrow night. 12 THE COURT: I will see you first 13 thing in the morning. 14 {At this point this matter was 15 recessed.) 16 17 18 19 20 21 22 23 24 25 131 2 3 I HEREBY CERTIFY THAT THE PROCEEDINGS AND EVIDENCE ARE 4 CONTAINED FULLY AND ACCURATELY IN THE NOTES TAKEN BY ME ON 5 THE TRIAL OF THE ABOVE CAUSE, AND THAT THIS COPY IS A 6 CORRECT TRANSCRIPT OF THE SAME. 8 ANN C. MULLEN, R.P.R. OFFICIAL COURT REPORTER 9 COURT OF COMMON PLEAS PHILADELPHIA COUNTY 10 11 THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT 12 APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS 13 UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE CERTIFYING 14 COURT REPORTER. 15 16 17 18 19 20 21 22 23 24 25