EFiled: Jun 19 2012 12:49PM EDT Transaction ID 44889066 Case No.

N10C-08-216 ASB IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY IN RE: ASBESTOS LITIGATION KENNETH CARLTON : : :

C.A. No. N10C-08-216 ASB

DEFENDANT CRANE CO.S RESPONSE TO ORDER TO SHOW CAUSE The Delaware Rule of Evidence make admissible evidence of bias, prejudice or interest. See D.R.E. 616. Prior inconsistent statements of any testifying witness are also virtually universally admissible at trial. See e.g., D.R.E. 613, 801(d)(1). In this trial, Mr. Cottle posed to Dr. Castleman on cross-examination questions about the same basic issues that the doctor has been asked and has admitted to under oath a number of times over the past several years. This time, however, Dr. Castleman addressed these issues quite differently from in his prior sworn testimony. At that juncture, Crane Co. respectfully submits, Mr. Cottle was entitled to attempt to confront Dr. Castleman an adversarial expert witness with almost 35 years of experience testifying for plaintiffs in asbestos litigation with prior inconsistent statements for impeachment and credibility purposes. What is more, even without the inconsistent answer, Mr. Cottle was entitled to probe the related issues of bias, prejudice or interest. Crane Co. respectfully submits that on the record in this trial, and as further explained below, Mr. Cottles examination more than comported with the provisions of Delaware Rule 3.4(e). DISCUSSION As set forth below, in the words of Dr. Castleman, in his own prior sworn testimony, he has repeatedly admitted the following key points, which are the very key points Mr. Cottle sought to explore: (1) Dr. Castleman has admitted that he made a request of Dr. Irving Selikoff, a world renowned medical and scientific asbestos health researcher, in the late 1970s.

(2)

Dr. Castleman has admitted that he made that request in writing, in the form of a note, memorandum, or letter. Dr. Castleman has admitted that in that request, he personally conveyed to Dr. Selikoff the concerns of a plaintiffs attorney in asbestos litigation, Ron Motley. Dr. Castleman has admitted that Mr. Motleys concerns related to the potential negative impact on plaintiffs claims of scientific evidence in Dr. Selikoffs files if Dr. Selikoff were to turn them over to defense attorneys. Dr. Castleman has admitted that he conveyed Mr. Motleys concerns to Dr. Selikoff. Dr. Castleman has admitted that he expressed to Dr. Selikoff that Dr. Selikoff should think carefully about turning over any research-related records to defense counsel.

(3)

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(6)

As detailed below, this evidence comes from Dr. Castlemans own sworn testimony, and it is irrefutable. This evidence is quite relevant and admissible on multiple grounds, and Crane Co. respectfully submits that Mr. Cottle was well within the parameters of Rule 3.4(e) in seeking to adduce it. A. The Evidence at Issue the Castleman-Selikoff Exchange. Plaintiffs expert witness for state-of-the-art evidence, Dr. Barry Castleman, has testified in the past that he at one point made a request to Dr. Irving Selikoff that Dr. Selikoff refuse to turn over his research to defense attorneys in asbestos litigation, as this testimony makes clear: Q. And you actually wrote a letter to Dr. Selikoff in 1979 wherein you told him Ron Motley, the plaintiffs' lawyer I work for, knows that you got some information about insulators who said they knew about the hazards of asbestos in the '40s and '50s, please don't let that get out? That is a gross mischaracterization of what I wrote to Dr. Selikoff. Tell me what the letter said. The memo showed up last summer for the first time. I hadn't seen this thing or didn't even remember it. It showed up in cross-examination at some trial last summer. It's dated 1979 and it -- it's not on any letterheads and not signed, but it looks like something I might have written.

A. Q. A.

I had testified a total of one time at the time I wrote this and I conveyed to Dr. Selikoff one of the plaintiffs' lawyers with whom I had been in contact, this guy, Motley, was concerned that Selikoff's medical research records might contain a questionnaire that would include information asking the workers when they first heard that asbestos work was dangerous. And Motley -- I conveyed to Selikoff -- I am basically conveying Motley's concern and was saying that if such a thing was turned over to defense counsel, they would use this to get people's cases dismissed. . . . See Trial Transcript in Farag v. Advance Auto Parts, No. 431525 in the Superior Court of the State of California, Los Angeles County, December 1, 2010, pp. 753-55, attached as Exhibit A.1 Dr. Castleman went on to explain that he agreed to write Dr. Selikoff because Castlemans lawyer friend Ron Motley was having a paranoid fit. See id. at p. 756. This is far from the only time Dr. Castleman has provided such testimony. In a number of depositions, Dr. Castleman has testified in a substantially similar way, acknowledging that he had an exchange with Dr. Selikoff in which he asked Selikoff to consider not turning over to defense counsel certain research: Q: Okay. Now, obviously, but you asked Dr. Selikoff, you said, [i]t strikes me as most important to hold these files confidential and resist efforts to get them released to the defendants. Isnt that true? Yes. I felt that medical research was not something that should just be - - I mean, again, the date of this memo is 1979. I had testified in a total of one trial in my whole life by that time. I was not at all familiar with the legal system. I was very concerned about what Motley told me, because I thought it would jeopardize Selikoffs ability to do epidemiology studies on workers and identify occupational health hazards, not just with asbestos but with all kinds of things. Deposition Transcript in Luna v. A.W. Chesterton, Inc., et al., No. 08-L-619 in the Circuit Court of Madison County, Illinois, July 12, 2010, p. 26, attached as Exhibit B.

A:

Crane Co. has attached the key excerpts from the transcripts cited herein in the exhibits filed with this response; it has separately filed an appendix with full versions of all cited transcripts. 3

Before this Court, however, Dr. Castleman gave a very different answer to the same basic question: Q: And you once asked [Dr. Selikoff] to conceal some of the research that he might have done on the 1964 study; is that correct? No. What youre referring to is a memorandum that doesnt have any signature and it doesnt have any letterhead, and was produced in cross-examination about two years ago in a trial. And I have no memory of this document.

A:

See Trial Transcript in Carlton v. Crane Co., et al., No. 10C-08-216 in the Superior Court of the State of Delaware, New Castle County, June 11, 2012, p. 152, attached as Exhibit C. Dr. Castlemans testimony to this Court cannot be squared with his prior testimony on this subject. Dr. Castleman went from a simple yes on the issue of the request to Dr. Selikoff to a flat no before this Court and jury. As described below, that contradictory answer itself permitted Mr. Cottle under Delaware law and within the bounds of Rule 3.4(e) to explore this change in testimony. In light of Dr. Castlemans new answer, Mr. Cottle attempted to introduce the very memorandum that Dr. Castleman himself first brought up in his answer a memorandum stating on its face that it was sent by Dr. Castleman to Dr. Selikoff in November of 1979. See Castleman-Selikoff Memo, Exhibit D. In addition to containing statements fundamentally inconsistent with Dr. Castlemans assertion that he did not ask Dr. Selikoff to conceal his research, this memorandum is replete with evidence of bias, prejudice, and interest. First, Dr. Castleman began the memorandum by discussing his close work with Ron Motley, an asbestos plaintiffs attorney. See id. He went on to express to Dr. Selikoff the concerns of Ron and other plaintiffs lawyers that defense lawyers in asbestos litigation would obtain evidence from Dr. Selikoff that could jeopardize[] the rights to compensation of current and future plaintiffs. He expressed concern that this same evidence could hurt the state of the

art case for all the plaintiffs. In light of this, Dr. Castleman told Dr. Selikoff that, in Castlemans view, it was most important to hold these files confidential. See id. Although Dr. Castleman denied any knowledge of this memorandum before this Court, in the past, as noted above, his position has been quite different. For instance, in one recent trial, Dr. Castleman was questioned on the memorandum at issue and testified in reference to one of its portions, I go on to say in the next sentence that it might impair Selikoffs ability to obtain the cooperation of unions and workers in other studies. . . . See Trial Transcript in Benton v. John Crane, Inc., No. 109661/02 in the Supreme Court of the State of New York, New York County, October 14, 2011, p. 377, attached as Exhibit E. Thus, as recently as October of last year, Dr. Castleman acknowledged as his own the statements in this memorandum. Likewise, Dr. Castleman has testified that although he cannot recall the precise act of writing this memorandum, it may well have been written by [him] and it looks like something [he] could very well have written. See Exhibit B, Luna Transcript, pp. 21-22. In the past, in stark contrast to Dr. Castlemans testimony to this Court, Dr. Castleman has refused to testify that he did not write this memorandum. See id. at p. 21 (Im not saying I didnt write it.). Quite to the contrary, he has gone to great lengths to explain the background of this exchange with Dr. Selikoff and the motives he had for writing this memorandum (which he claims he cannot recall writing). See id. at p. 28 (Dr. Castleman explaining, Again, the first two paragraphs Im basically passing on what Motley had told me, and I was saying that to Selikoff, this is what Motley says. . . . I mean, this is basically I was saying, look, Ron Motley is telling me about these concerns. . . .). In light of this background, Crane Co. respectfully submits that Mr. Cottle had a reasonable and well-founded belief that the matter of the exchange between Dr. Castleman and

Dr. Selikoff was both relevant and admissible on multiple grounds of credibility, bias, prejudice, accuracy, and prior inconsistent statement. As described below, an attorney proceeding under such a belief more than complies with the provisions of Rule 3.4(e). B. Mr. Cottle Had a Well-Supported, Reasonable Belief That Evidence of the Castleman-Selikoff Exchange Would Be Both Relevant and Admissible. Delaware Rule 3.4(e) states that a lawyer may not allude to a matter in trial if the lawyer does not reasonably believe that the matter is relevant or will be supported by admissible evidence. At all pertinent times, Mr. Cottle had a reasonable belief that the matter of the 1979 Castleman-Selikoff exchange was both relevant and supported by admissible evidence. This belief was well justified because the matter of the Castleman-Selikoff exchange is relevant and admissible on two independent grounds: (1) it is evidence of Dr. Castlemans bias, prejudice, and interest, and (2) Dr. Castleman gave testimony at trial inconsistent with his prior statements on this subject. 1. The Castleman-Selikoff Exchange Is Powerful Evidence of Bias and Clearly Relevant and Admissible Under D.R.E. 616.

Delaware Rule of Evidence 616 makes admissible evidence of bias, prejudice or interest of the witness. See also Garden v. Sutton, 683 A.2d 1041, 1043 (Del. 1996) (quoting Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995) ([T]o properly evaluate a witness, a jury must have sufficient information to make a discriminating appraisal of a witnesss motives and bias. It is an abuse of discretion for ... a judge to cut off cross-examination if the opportunity to present this information is not afforded.). The fact that Dr. Castleman apparently asked a renowned researcher in asbestos health hazards to conceal his research because its disclosure could harm plaintiffs litigation posture is clearly evidence of bias, prejudice or interest of the witness.

Indeed, the Castleman-Selikoff exchange goes beyond just bias. It is evidence that Dr. Castleman has not functioned, and is not functioning, as an independent expert seeking to assist the trier of fact, which is the proper role for expert witness testimony under D.R.E. 702. Rather, the jury could reasonably conclude that this evidence demonstrates that Dr. Castleman is an advocate, attempting to manufacture or spin the facts in whatever manner will suit his side. See, e.g., Viterbo v. Dow Chem. Co., 646 F.Supp. 1420, 1425 (E.D. Tex. 1986) (recognizing that when an expert becomes an advocate for a cause, he departs from the ranks of an objective expert witness, and any resulting testimony would be unfairly prejudicial and misleading). The Castleman-Selikoff exchange also demonstrates that Dr. Castleman has had a close working relationship with plaintiffs lawyers in asbestos litigation (Ron Motley in this case) for decades. This likewise suggests a bias. Dr. Castleman testified that he derives 90% to 95% of his income from working for plaintiffs lawyers in asbestos litigation, and that that money has been the majority of his income over the past 25 to 30 years. See Exhibit C, Carlton Transcript, p. 150. In light of this, he has, and has in the past had, a personal financial interest in making sure that plaintiffs can present viable claims and in fashioning the historical evidence to comport with the recitation of the state of the art provided in Dr. Castlemans published book. Furthermore, it is important to note that the memorandum at issue was created in late 1979. By that point in time, Dr. Castleman was already working with plaintiffs lawyers in asbestos litigation as a state of the art expert. Dr. Castleman expressed concerns to Dr. Selikoff that the disclosure of Selikoffs research files could harm the state of the art case for all potential plaintiffs the very state of the art case that Dr. Castleman was hired to deliver at trial and ultimately wrote a book about. Based on these facts, a jury would be entitled to conclude that Dr. Castleman had a clear interest in seeing Dr. Selikoffs research files concealed,

as Castlemans new livelihood (a livelihood he has maintained as a professional witness for over three decades) could be jeopardized by their disclosure. Crane Co. was entitled to place this information before the jury pursuant to D.R.E. 616 because it is relevant to the question of whether Dr. Castlemans positions on the state of the art are reasonable and balanced, or whether they are colored by his biases, prejudices, and monetary interests. 2. The Castleman-Selikoff Exchange Is a Prior Inconsistent Statement Within the Meaning of D.R.E. 613, and Mr. Cottle Was Justified in Seeking Its Admission.

As an initial matter, any writing, of any kind, may be used to refresh a witnesss recollection on any subject, whether that subject relates to a matter of bias and impeachment or a substantive point in the case.2 See, e.g., 98 C.J.S. Witnesses 438 (Any writing which in fact stimulates, revives or refreshes the present memory or recollection of a witness may be used to refresh recollection.). Such a writing need not be admissible in evidence, and indeed, D.R.E. 612 recognizes that it ordinarily will not be admissible, and may be introduced by the adverse party. After Dr. Castleman testified that he had no memory of the 1979 Castleman-Selikoff exchange, Mr. Cottle was entitled to show Dr. Castleman his own prior memorandum in an effort to refresh his recollection. The rule is the same for a writing used to refresh a witnesss recollection with regard to a prior inconsistent statement the writing itself need not be admissible to be used with a witness. See D.R.E. 613(a), (b) (recognizing that a witness may be questioned about a prior inconsistent statement without actually being shown the statement, and that writings reflecting the statement will ordinarily be inadmissible absent the satisfaction of certain conditions). If, however, a witness does not clearly admit that he has made [a] prior inconsistent statement, extrinsic

Moreover, an attorney need not use a writing to refresh recollection the classic law school example provides that anything may be used to refresh recollection, even a bowl of spaghetti. 8

evidence of such statement is admissible. D.R.E. 613(c). In the testimony from this trial quoted above, Dr. Castleman, in stark contrast to his previous testimony, denied that he asked Dr. Selikoff to conceal health research, and then denied all knowledge of the memorandum in which Castleman asked Dr. Selikoff to conceal his research. In light of these denials, Mr. Cottle was entitled to attempt not only to refresh Dr. Castlemans recollection with his prior inconsistent statements in the form of his 1979 memorandum, but also to introduce into evidence such prior inconsistent statements for purposes of impeachment. Although Crane Co. did not offer Dr. Castlemans prior inconsistent statements for their truth, it would have been entitled to do so under Delaware Rule of Evidence 801(d)(1), which provides that a statement is not hearsay if it was made in the past by a testifying witness and is inconsistent with that witnesss trial testimony. As to authentication issues, Rule of Evidence 901(1) provides that one of the ways to authenticate a writing is through eliciting testimony from a witness with knowledge that a matter is what its proponent claims it to be. It was certainly reasonable for Mr. Cottle to expect that Dr. Castleman could provide such testimony with respect to his own memorandum. He did not, but that does not mean that Mr. Cottles efforts to develop such testimony failed to comport with Rule 3.4(e). Indeed, Mr. Cottle was not even the one who first raised the issue of the memorandum with the jury Dr. Castleman did, unsolicited. Dr. Castleman acknowledged having many exchanges with Dr. Selikoff from 1971 through the time of Dr. Selikoffs death in 1992. See Exhibit C, Carlton Transcript, p. 152. However, Dr. Castleman testified, totally unprompted, that he had no memory of the memorandum at issue. See id. Mr. Cottle properly showed him the actual memorandum in question to determine if Dr. Castleman could authenticate it.

Although Dr. Castleman denied any knowledge of this memorandum before the Court here, as discussed above, in the past his position has been quite different he has refused to testify that it was not his work, acknowledged making the statements in it, and gone to great lengths to explain what his state of mind was when he made those statements. See e.g., Exhibit B, Luna Transcript, p. 26 (Dr. Castleman testifying, I was very concerned about what Motley told me, because I thought it would jeopardize Selikoffs ability to do epidemiology studies on workers and identify occupational health hazards. . . .). Mr. Cottle could not have known that Dr. Castleman would so dramatically change his testimony on this subject and refuse to acknowledge a document that he had previously gone to great lengths to explain.

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CONCLUSION Should the Court wish to explore further the prior testimony of Dr. Castleman outlined above and the basis for Mr. Cottles examination, Crane Co. respectfully suggests that the Court order Dr. Castleman to appear and provide testimony on this limited issue. Further, Crane Co. respectfully submits that Mr. Cottles examination of Dr. Castleman fully comported with Rule 3.4(e). That examination sought to develop issues of bias, prejudice, and credibility that were all raised and, indeed, fully established, by Dr. Castlemans own prior testimony, although he dramatically changed that testimony here. Once that occurred and Dr. Castleman denied all knowledge of his own exchange with Dr. Selikoff, Mr. Cottle was entitled to seek the admission of past inconsistent statements.

Respectfully submitted, SWARTZ CAMPBELL LLC /s/ Nicholas E. Skiles Nicholas E. Skiles (DE No. 3777) Francis C. Gondek (DE No. 2313) 300 Delaware Avenue Suite 1410 Wilmington, DE 19801 302-656-5935 K&L Gates LLP Eric R.I. Cottle (admitted pro hac vice) Michael J.R. Schalk (admitted pro hac vice) Dated: June 19, 2012 Attorneys for Crane Co.

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EFiled: Jun 19 2012 12:49PM EDT Transaction ID 44889066 Case No. N10C-08-216 ASB

EFiled: Jun 19 2012 12:49PM EDT Transaction ID 44889066 Case No. N10C-08-216 ASB