Christine Wiegman v A C & S, Inc.

Matter of New York City Asbestos Litig. 2005 NY Slip Op 10215 [24 AD3d 375] December 29, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of New York City Asbestos Litigation. Christine Wiegman, Individually and as Administratrix of the Estate of Daniel Tucker, Deceased, Respondent,
v
A C & S, Inc., et al., Defendants, and Lincoln Electric Company et al., Appellants. Angel Gomez, Respondent, v A C & S, Inc., et al., Defendants, and Lincoln Electric Company, Appellant.

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Judgment (Gomez) and revised judgment (Wiegman), Supreme Court, New York County (Louis B. York, J.), respectively entered June 15 and August 26, 2004, which awarded plaintiffs damages after a jury trial, unanimously affirmed, without costs.

Defendants-appellants' claim that a Frye hearing should have been held is without merit. The link between asbestos and disease is well documented, and the parties merely differed as to whether the asbestos contained in this particular product could be released in respirable form so as to cause disease. Since the parties argued over causation, no novel scientific technique or application of science was at issue, and a Frye hearing was not warranted (Gayle v Port Auth. of [*2]N.Y. & N.J., 6 AD3d 183 [2004]).

Dr. Victor Roggli was called by defendant Crane to testify in the Perkins case without objection by defendants Hobart and Lincoln. He gave testimony about exposure to asbestos gaskets and materials manufactured by Crane, during a different time period. He gave no testimony regarding the plaintiffs in Gomez and Tucker and did not testify concerning welding rods.

In a joint trial, cross-examination of a witness in a separate case may be precluded. This case does not warrant a deviation from that principle. Here, the court gave limiting instructions, reminding the jury that Dr. Roggli's testimony related only to the Perkins case. Dr. Roggli was not, per se, an adverse witness to defendants, and his testimony was not in direct contravention of defendants' expert. It was not error to preclude cross-examination of him by defendants.

Defendants' remaining contentions are without merit. Concur—Tom, J.P., Marlow, Ellerin, Sweeny and Catterson, JJ.