FILED: NEW YORK COUNTY CLERK 05/06/ :00 PM INDEX NO /2013 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/06/2015

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1 FILED: NEW YORK COUNTY CLERK 05/06/ :00 PM INDEX NO /2013 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/06/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In Re: New York City Asbestos Litigation ROBERT LADUCA, Plaintiff(s), - against - AMCHEM PRODUCTS, INC., et al. Defendants. NYCAL Hon. Martin Shulman Index No /2013 Affirmation in Support of Defendant Dana Companies, LLC s Supplemental Opposition to Plaintiffs Motion for a Joint Trial NATALIE A. POWERS, an attorney duly admitted to practice before the courts of this State, affirms the following to be true, pursuant to Rule 2106 of the CPLR under penalties of perjury: 1. I am an attorney with the law firm Darger Errante Yavitz & Blau LLP, counsel for defendant Dana Companies, LLC ( Dana ) in the above-captioned matter, which was transferred to Your Honor with fifteen other Weitz & Luxenberg, P.C. October 2014 in extremis clustered cases. Dana is also a defendant in two of the other clustered cases: Cooney (Index No /2014) and Kakos (Index No /2014). 2. I make this affirmation in support of Dana s supplemental opposition to Plaintiffs motion for a joint trial of the clustered cases, NYSCEF Nos I have prepared this affirmation upon information and belief, based upon the files for these matters maintained by this office, which I believe to be true and accurate. 3. Dana joins in the main joint defense opposition to this motion submitted by the law firm Malaby & Bradley, LLC, counsel for multiple defendants in the clustered cases, an in all supplemental oppositions submitted by other defendants in these cases to the extent they are not inconsistent with the positions or defenses of Dana. 4. Furthermore, Dana submits this supplemental opposition in order to set forth the additional reasons why LaDuca should not be joined with Cooney (Index No /2014), Kakos (Index No /2014), or Scarpitti (Index No /2014) for trial as proposed by Plaintiffs.

2 5. Plaintiffs seek to join LaDuca with three other cases Cooney, Kakos, and Scarpitti for trial as Group As Plaintiffs acknowledge, [w]ithin Group 2, all of the Plaintiffs were employed as mechanics. Comerford Aff. 39. Dana agrees that cases such as LaDuca, involving mechanics with alleged automotive exposures, should be tried separately from non-automotive cases, which is consistent with prior orders from Your Honor and other NYCAL judges separating cases involving automotive plaintiffs and exposures from other cases for trial. See, e.g., Schneider v. Amchem Products, Inc., Index No /2003 (Shulman, J.); Bang v. A.C.&S., Inc., Index No /2001 (Shulman, J.); Juni v. A.O. Smith Water Products Co., Index No /2012 (Jaffe, J.); Johnson v. A.O. Smith Water Products, Index No /2002 (Feinman, J). 7. However, LaDuca also should not be joined with Cooney, Kakos, or Scarpitti for trial for the following reasons: 8. First, Mr. LaDuca suffers from mesothelioma, a disease which is not associated with smoking. Meanwhile, Mr. Cooney, Mr. Kakos, and Mr. Scarpitti all suffered from lung cancer, which is an entirely different disease from mesothelioma with a different etiology, pathology, and consequences, and a well-established association with smoking. Mr. Cooney smoked an average of 2 packs of cigarettes per day for over 50 years and Mr. Kakos smoked an average of 1½ packs of cigarettes per day for over 30 years. 9. Second, Mr. LaDuca is living, while Mr. Cooney, Mr. Kakos, and Mr. Scarpitti are all deceased. 10. Accordingly, LaDuca will necessarily involve different defenses, evidence, and arguments than Cooney, Kakos, and Scarpitti, and joining LaDuca with these cases would cause confusion to the jury and prejudice to Dana. 2

3 11. Mr. LaDuca suffers from mesothelioma, a disease which is not associated with smoking. Meanwhile, Mr. Cooney, Mr. Kakos, and Mr. Scarpitti all suffered from lung cancer, which is an entirely different disease from mesothelioma with a different etiology, pathology, and consequences, and a well-established association with smoking. Mr. Cooney smoked an average of 2 packs of cigarettes per day for over 50 years and Mr. Kakos smoked an average of 1½ packs of cigarettes per day for over 30 years. The different diseases involved in these cases will necessarily result in different evidence at trial. 12. Judges in New York routinely separate mesothelioma cases from smoking lung cancer cases when ruling on joint trial motions. For example, the Honorable Paul G. Feinman, who is now an Associate Justice of the Appellate Division for the First Judicial Department, ordered that mesothelioma and lung cancer cases be tried in separate groups because [t]he pathology of lung cancer is substantively different than that of mesothelioma, and the differences in medical testimony that will be required for this disease makes grouping plaintiffs who are diagnosed with this condition a reasonable basis on which to segregate them from the remainder of the plaintiffs, all of whom are diagnosed with some form of mesothelioma. Adler v. Air & Liquid Systems Corporation (In re NYCAL), Index No /2011, at *14-15 (Sup. Ct., N.Y. County, Aug. 7, 2012) (attached hereto as Exhibit 1); see also Carlucci v. A.W. Chesterton (In re NYCAL), Index No /2011, at *2 (Sup. Ct., N.Y. County, Oct. 17, 2013) (Silver, J.) (attached hereto as Exhibit 2) (ordering that lung cancer case be tried separately from mesothelioma cases because it was reasonably anticipated that defendants in lung cancer case would attempt to establish that plaintiff s lung cancer was causally linked to smoking cigarettes, a factor not implicated in mesothelioma cases); Schaeffer v. Air & Liquid Systems (In re NYCAL), Index No /2012 (Sup. Ct., N.Y. County, July 19, 2013) (Jaffe, J.) (attached hereto as Exhibit 3) (denying plaintiffs motion to consolidate two cases where plaintiffs failed to establish common issues predominated over individual issues, including fact that one plaintiff suffered from mesothelioma and the other from lung cancer); Malcolm v. Nat l Gypsum Co., 995 F.2d 346, 352 3

4 (2d Cir. 1993) (holding cases should not have been joined for trial for reasons including factor that [t]wo different types of cancer were alleged: lung cancer, and mesothelioma, a cancer of the lining of the wall of the chest, and [e]ach required distinct testimony regarding its etiology, pathology, and consequences ); Ballard v. Armstrong World Industries (In re 7JDAL), 191 Misc.2d 625, 631 (Sup. Ct., Monroe County 2002) (Cornelius, J.) (attached hereto as Exhibit 4) (noting that [a]lthough there may be other causes of lung cancer, mesothelioma has been described as the...signature disease for asbestos exposure and may result from a relatively low level of exposure ) (quoting Rand Inst. for Civ. Just., Asbestos Litigation in the U.S.: A New Look at an Old Issue (Aug. 2001)). 13. Since LaDuca is a mesothelioma case, and Cooney, Kakos, and Scarpitti are all lung cancer cases, the evidence in LaDuca and theories of causation will be entirely different. The potential for jury confusion is high, and moreover, it is in the interest of judicial economy that the jury in the LaDuca case not sit through needless, irrelevant evidence about smoking. 14. Mr. LaDuca is living, while Mr. Cooney, Mr. Kakos, and Mr. Scarpitti are all deceased. 15. The significance of this factor is evident. The presence of wrongful death claims and personal injury actions in a consolidated trial is somewhat troublesome. The dead plaintiffs may present the jury with a powerful demonstration of the fate that awaits those claimants who are still living. Malcolm, 995 F.2d at (quoting In re Joint E. & S. Districts Asbestos Litig. ( Drago ), 125 F.R.D. 60, (E.D.N.Y. 1989) (alterations omitted)). 16. Accordingly, your Honor has ordered that cases involving deceased plaintiffs be tried separately from those involving living plaintiffs. See Capozio v. A.C. & S. (In re NYCAL), Index No /1999, 22 Misc.3d 1109(A), at *5-6 (Sup. Ct., N.Y. County 2009) (attached hereto as Exhibit 5) (ordering that case involving deceased plaintiff must be tried separately from those involving living plaintiffs for reasons including that consolidating [case involving deceased plaintiff] with any of the living plaintiffs cases will prejudice Defendants in the latter cases inter alia because of the possibility that a jury will attribute the fate of the deceased to the living plaintiffs at this juncture ) (emphasis in 4

5 original); Hindle v. A.C. & S. (In re NYCAL), Index No /1999, 2008 N.Y. Slip.Op (Sup. Ct., N.Y. County, May 20, 2008) (attached hereto as Exhibit 6) (citing, among factors considered in denying consolidation motion, possibility that the jury could attribute the fate of those two deceased Plaintiffs to the three living Plaintiffs and that inter alia would be prejudicial to Defendants in the living Plaintiffs cases ). 17. Other judges and courts have also consistently separated cases with living plaintiffs from those with deceased plaintiffs for trial. See Schaeffer, Index No /2012 (Exhibit 3) (denying plaintiffs motion to consolidate two cases where plaintiffs failed to establish common issues predominated over individual issues, including fact that one [plaintiff] is alive and suffering from lung cancer while the other died of mesothelioma ); Ballard, 191 Misc.2d at (Exhibit 4) (noting the presence of wrongful death claims and personal injury actions in a consolidated trial is somewhat troublesome because of the potential for prejudice, which lies in the possibility that the living claimants asbestos-related disease in fact may not prove fatal and thus holding consolidation of the claims of the two deceased workers with the claims of the living Plaintiffs would be unduly prejudicial to the Defendants ) (citation omitted). 18. If LaDuca, with a living plaintiff, were tried with Cooney, Kakos, or Scarpitti, it is highly likely that the jury would impute the fate of Mr. Cooney, Mr. Kakos, and Mr. Scarpitti onto Mr. LaDuca. This would cause significant prejudice to Dana. 5

6 19. LaDuca lacks sufficient commonalities with Cooney, Kakos, and Scarpitti to warrant joining LaDuca with these cases for trial. Additionally, if LaDuca were joined with these cases, Dana would be prejudiced, and there is a risk of juror confusion. Accordingly, Dana respectfully requests that this Court deny Plaintiffs Motion for a Joint Trial and order that LaDuca be tried separately from these other cases. Dated: New York, New York May 6, 2015 s/natalie A. Powers Natalie A. Powers Darger Errante Yavitz & Blau LLP 116 East 27th Street, 12th Floor New York, NewYork