SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
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IN RE: NEW YORK CITY ASBESTOS LITIGATION : NYCAL ---X I.A.S. Part 13
This Document Relates To: : (Mendez, J.)
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ROGER J. CARILLI, : Index No. 190252-15
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Plaintiff(s), :
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-against- :
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A.O. SMITH WATER PRODUCTS CO., :
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Defendants, :
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This Document Also Relates To: :
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THOMAS GALLEN and MAURA GALLEN, and : Index No. 190343-15
ERNEST GILBERT : Index No. 190198-15
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AFFIRMATION IN OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE TO PREMIT INTRODUCTION OF ANSWERS TO INTERROGATORIES AND
DEPOSITION TESTIMONY OF SETTLED COMPANIES STATE OF NEW YORK )
S.S.: COUNTY OF NEW YORK )
THOMAS M. COMERFORD, ESQ., being duly sworn, deposes and says:
1. I am an attorney licensed to practice in the State of New York and before this Court and I am an associate of the law firm of Weitz & Luxenberg, P.C., attorneys for the above-referenced Plaintiffs. As such, I am aware of the facts and circumstances of this case.
and deposition testimony of non-parties for the purpose of establishing CPLR Article 16 liability against Plaintiffs. These interrogatory responses and depositions are clearly inadmissible under controlling law.
PRELIMINARY STATEMENT 3. Defendants seek admission of inadmissible hearsay contained in:
(1) Interrogatory responses of non-party entities; and
(2) Prior deposition testimony and sworn statements of non-party witnesses taken in other asbestos lawsuits which did not involve the instant Plaintiffs and which were taken, in some instances, many years before Messrs. Carilli, Gallen, and Gilbert were diagnosed with mesothelioma and most importantly, before their lawsuits were ever filed.
4. Controlling precedent from the First Department, precedent from the Fourth Department, and numerous decisions from New York trial courts presiding over asbestos actions, clearly establish that defendants’ attempt to introduce into evidence non-party interrogatory responses amounts to inadmissible hearsay, precluding their introduction into evidence against Plaintiff.1
5. Additionally, CPLR 3117(a)(3) establishes the requirements to be met in order to introduce non-party witness deposition testimony against a party which include notice and an opportunity to cross-examine. Here, the Plaintiffs had neither notice nor an opportunity to cross-examine. Therefore, defendants have failed to establish the necessary requirements for introduction of the proffered prior testimony.
6. Critically, the most persuasive authority on the issue is clearly the decision rendered this year by Hon. Peter Moulton, former Administrative Judge of New York County Supreme Court and
1 See Ronsini v Garlock, 256 A.D.2d 250, 252 (1st Dept 1998) ("Nor was there any error in preclusion of the settling
defendants' interrogatories.”), lv denied 93 N.Y.2d 818 (1999) (emphasis added); In re Eighth Jud. Dist. Asbestos Litig.
[Gram]. 197 A.D.2d 901 (4th Dept 1993) (defendant properly precluded from "introducing interrogatory answers submitted by codefendants to prove [defendant's] cross claims against those codefendants"); In re
New York City Asbestos Lit, 173 Misc.2d 121 (Sup Ct N.Y. Cty 1997) (“the interrogatories of the settling
supervising the entire New York City Asbestos Litigation (“NYCAL”), who examined these exact issues in limine and issued a thorough decision to the following effect:
Defendants motion is denied. While defendants would have a stronger argument under the Federal Rules of Evidence for the admission of this material, CPLR 3117(a)(2) does not extend to the interrogatory answers or corporate representative depositions of defendants who have settled or who have gone bankrupt. First, the depositions and interrogatory answers were not taken of these entities when they were parties to this action. (see, e.g., Matter of New York City Asbestos Litigation (Assenzio), 2015 WL 667907 at 23.) Moreover, the moving defendants, who are the proponents of this material, are not adversely interested with respect to the proposed Article 16 entities because all claims by co-defendants against the bankrupt or settled defendants have been extinguished. Finally, the CMO section cited by plaintiffs incorporates by reference CPLR 3117, so it affords no broader admissibility to the material in question than is provided in the CPLR.2
7. Hon. Moulton’s decision is in accordance with most other NYCAL judges who had previously heard full argument during trial on the subject and ruled similarly.34
2 See Decision and Order, Walter Andrews, Index No. 190034/15 at 21-23 (Supreme Court N.Y. County) (Hon. Moulton) (January 4, 2017) (annexed hereto as Exhibit B).
3 See Transcript, Santos Assenzio et al., Index No. 190008/12 et al. at 5077-98 (argument) & 5099-5104 (ruling)
(Supreme Court N.Y. County) (Hon. Madden) (July 15, 2013) (annexed hereto as Exhibit C); Transcript,
Marlena Robaey, Index No. 190276/13 at 4442-4483 (argument) & 4484-4487 (ruling) (Supreme Court N.Y.
County) (Hon. Madden) (January 17, 2017) (annexed hereto as Exhibit D).
4 At the time of this writing and for the purposes of this opposition, Hon. Moulton’s Decision and Order in
Andrews (Exhibit B) is in full effect and any provisions of the June 20, 2017 Case Management Order
ARGUMENT POINT I
NON-PARTY INTERROGATORY RESPONSES ARE INADMISSIBLE HEARSAY
8. Both the First Department in Ronsini and the Fourth Department in Gram, have addressed the precise issue raised by defendants’ motions and both have held non-party interrogatory responses inadmissible. It is submitted that the appellate division case-law is directly on point and thus controlling in this Court.
9. The derivation of these decisions comes from the interplay between CPLR 3131 and 3117. CPLR 3131 provides that interrogatory responses “may be used to the same extent as the depositions of a party.” CPLR 3117(a)(3) provides that a deposition of a person that is statutorily deemed absent under an enumerated basis may only be used against an adverse party when that party had notice of the deposition or was present or represented thereat. The First Department has directly addressed the issue raised by defendants’ motions in the CPLR 3117 context5 and has held the evidence defendant seeks to admit to be inadmissible.
10. Moreover, even if one of the subsections to CPLR 3117(a) is satisfied, the statute still mandates that the evidence may only be admitted “so far as admissible under the rules of evidence.”6 Here, the interrogatory responses are inadmissible because they do not satisfy a hearsay exception and their admission violates Plaintiffs’ right to cross examine the deponents.
5 See Bigelow v. A.C.&S.. Inc., 196 A.D.2d 436, 439 (1st Dept., 1993) (“deposition testimony...which was
referred to in the answers to the interrogatories, was not admissible since the plaintiffs, against whom such testimony was sought to be used, were not present or represented at those depositions, received no notice thereof (CPLR 3117[a] [3]) and did not in the first instance elect to read into evidence any of the testimony from those depositions (CPLR 3117[b])”); see also Rivera v New York City Transit Authority, 54 A.D.3d 545, 547 (1st. Dept 2008) (“While the deposition testimony of each plaintiff was admissible against that plaintiff as an admission (citation omitted), the status of such testimony as an admission of the plaintiff who testified did not render it admissible against other plaintiffs”); In re New York City Asbestos Litigation [Klopsis v A.O. Smith-],
21 AD3d 320 (1st Dept 2005) (“testimony by a deponent who has since died, in a case to which [defendant] was not a party (see CPLR 31 17[a][3][i])...would not be admissible at trial…”).
11. Defendants cannot use these interrogatory responses against the non-parties identified, because those entities have no interest in the outcome of the litigation and will have no liability from any findings made during this trial as all cross claims against them have been extinguished by virtue of their settlement.7
12. Put differently, these interrogatory responses are not admissible against plaintiff because even if deemed to be admissions against interest their admission must be against the entity which made the admission and introduced against that entity.8 Instead, defendants want to use this evidence against Plaintiff because under Article 16, apportioning fault to nonparties reduces the defendants’ own share of fault and therefore forcing Plaintiffs to shoulder more of the damages than they otherwise would.9 Consequently, defendants cannot evade the hearsay problem under the admission against interest exception.
13. In this regard, the inherent problem with admitting hearsay Article 16 interrogatory responses is that Plaintiff is deprived of any ability to cross-examine the deponents.10 The Court of Appeals has found this germane in concluding, under similar circumstances, that self-serving interrogatory responses are not admissible under CPLR 3117:
A party serving interrogatories is certainly not “present” or -represented- at the time the answers are given as required by CPLR 3117 (subd [a], par 3) and does not have the opportunity to impeach or inquire into self-serving responses rendered by the party interrogated or its agent. The adversary therefore is effectively deprived of the right to cross-examine (cf. Stern v Inwood Town House, 22 AD2d 650). The self-serving answers of a party to written interrogatories which are not subject
7 See GOL 150-108(b) (“A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice
law and rules.”) (emphasis added).
8 Cf. Reed v McCord, 160 NY 330, 341 (1899) (“admissions by a party of any fact material to the issue are always competent evidence against him.”) (emphasis added); Prince, Richardson on Evidence § 8-201, p. 510 (Farrell, Ilth ed.) (“an admission is an act or declaration of a party, or of the representative or predecessor in interest of a party, which constitutes evidence against the party at trial.”).
9 See In re New York City Asbestos Lit, 173 Misc.2d 121, supra (“responses to interrogatories could not be used, in the indirect manner proposed by Rapid, against the interests of plaintiffs.”) (emphasis added).
to the scrutiny of cross-examination may not be introduced by that party under CPLR 3117.11
14. Inasmuch as no hearsay exception applies, Plaintiffs are also deprived of the right to cross-examine the deponents at trial regarding statements made in the interrogatory responses. Therefore, the responses are not “admissible under the rules of evidence” as required by CPLR 3117(a). Nor is it material that the interrogatory responses are NYCAL-wide and/or verified. Thus, at the outset, even if these were responses made directly in this case, the right to confrontation would still be violated by their admission.12 The fact that these statement were made prior to the existence of Plaintiffs lawsuit only highlights the policy reasons for their inadmissibility.
15. Lastly, it is noteworthy that when defendants chose to defend themselves at trial, they took on the burden of proving Article 16 claims against nonparties and the risk of whether they would be able to establish such claims. It is well settled that the way to establish such claims is not through the use of inadmissible evidence, including interrogatory responses, but by admissible evidence.13 Plaintiffs should not be prejudiced by defendants’ failure to utilize the appropriate vehicles to establish its Article 16 cases and defendants should not be inappropriately advantaged by allowing them to utilize inadmissible evidence to carry their burden.
11 United Bank Ltd. v. Cambridge Sporting Goods Corp.. 41 N.Y.2d 254, 264 (1976), cited by In re New York. City
Asbestos Litig. 173 Misc.2d 121, supra (“since plaintiffs had no opportunity to cross-examine the settling
defendants, their responses to interrogatories could not be used.”); Dummitt v. Crane Co., supra at 3426-27 (“The plaintiff does not have any opportunity to cross-examine any of those companies.”).
12 See Rivera, supra.
POINT II
NON-PARTY DEPOSITION TESTIMONY TAKEN IN OTHER ASBESTOS LAWSUITS ARE INADMISSIBLE HEARSAY
16. It is clear from a reading of CPLR 3117(a)(3) that, in order for a defendant to introduce any prior deposition testimony against plaintiff the defendant must provide the plaintiff with notice and an opportunity to cross-examine that witness.
17. CPLR 3117(a)(3) states in relevant part: Rule 3117. Use of depositions
(a) Impeachment of witnesses; parties; unavailable witness. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:
3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts; or
regard to the importance of presenting the testimony of the witness in open court . . . .
The New York Evidence Handbook explains why the party against whom the testimony is offered must be given prior notice of the deposition and an opportunity to cross-examine the witness:
For the exception to apply, the declarant must have testified under oath, and the party against whom the testimony is offered must have had a similar motive and opportunity to cross-examine that testimony at the time it was given . . . .14
The authors of this New York Evidence Handbook emphasize that the touchstone of admissibility under the prior testimony exceptions—both of the statutory and common law exceptions—is that the party against whom the testimony is offered had a motive and opportunity to cross-examine the declarant that was similar to what the party would have at the current proceeding were the witness to testify.15 Here, Plaintiffs motives are to rebut and refute any such testimony. Prior Plaintiffs, in other cases, with other motives and other interests, who may have cross-examined the deponents cannot and does not bind the instant Plaintiffs.
18. It is especially important that Plaintiffs be afforded the opportunity to cross-examine any purported witness, because general testimony taken in other cases without affording Plaintiffs the opportunity to ask specific questions relating to their specific circumstances fails to meet a threshold requirement of CPLR 3117(c)(3). Permitting defendants to introduce general testimony would severely prejudice the Plaintiffs. Therefore, these motions in limine by defendants to admit the deposition testimony of non-parties taken in other cases should be denied by this Court.
19. Finally, New York does not recognize a “residual hearsay” exception such as that contained in the Federal Rules of Evidence. To permit introduction of the non-party hearsay
14 New York Evidence Handbook, 2nd Ed. Martin, Capra and Rossi at Section 8.4.2.1 (A true and accurate copy of Section 8.4.2.1 of New York Evidence Handbook is annexed hereto at Exhibit E at page 804).
defendants seek to admit would create a new hearsay exception not heretofore recognized in New York jurisprudence.
CONCLUSION
20. WHEREFORE, for the reasons stated herein, Plaintiffs respectfully request this Court issue an Order denying defendants American Biltrite, Inc., A.O. Smith Water Products Company, Columbia Boiler Company of Pottstown, CompuDyne, LLC, The Fairbanks Company, Peerless Industries, Inc., R.W. Beckett Corporation, Taco, Inc., and Weil-McLain’s motions in limine together with such other, further, and appropriate relief as this Court may deem just and proper.
Dated: New York, New York August 30, 2017
Respectfully submitted,
WEITZ & LUXENBERG, P.C. 700 Broadway
New York, New York 10003 (212) 558-5500
Attorneys for Plaintiffs
