In this trial ready matter, defendants' Ford Motor Company and General Motors Corporation (hereinafter collectively "defendants")^[FN1] and plaintiff Carlos Cepeda argued various motions in limine before the Court on February 28, 2007 (Court Reporter Aldorine Walker). As set forth below, the motions are denied in part and granted in part.

In these cases, plaintiffs sue a number of companies who either make products which contain asbestos or use products which contain asbestos, which plaintiffs claim caused them injuries. Both plaintiffs claim that they contracted mesothelioma, a particularly virulent form of cancer, related, in the vast majority of cases, to exposure to asbestos, as a result of their exposure either to these companies' products or at these companies' work sites. Mr. Bisman is still living. Mr. Cepeda is deceased. The instant motions revolve around Mr. Cepeda's claims that he contracted mesothelioma as a direct result of his work with brake products. Plaintiff thus seeks to introduce two sets of training materials used to train persons in the automotive business or seeking to work in the automotive business, one authored by a non party to the action, the other authored by Ford Motor Company, a party defendant.

In essence, the dispute between the parties as to the admissibility or non-admissibility of these documents involves a dispute over the issue of causation of plaintiff Cepeda's illness and subsequent death. Defendants have maintained and continue to maintain throughout this litigation, that plaintiff Cepeda's mesothelioma was not caused by his exposure to brake products. Plaintiff seeks the introduction of the disputed documents, as they contain statements which plaintiff argues constitute admissions by defendant Ford that exposure to defendants' products was a cause of plaintiff's illness and death, directly contradicting defendants' claims at trial.

Specifically, defendants seek the exclusion of the training materials prepared by the Coordinated Committee of Automotive Repair ("CCAR"). Defendants argue that such materials should be excluded as they constitute inadmissible hearsay by a party not subject to the litigation and over which defendants had no control. Defendants further request that all information [*2]provided on web sites referenced by CCAR be excluded as such statements contained therein also constitute hearsay. Plaintiff opposes defendants' motion arguing that statements made and documents produced at the deposition of defendant Ford's employee, Albert Rocker, demonstrate that defendants adopted CCAR's program and, in particular, the statements contained therein, as their own, and are thus admissible as adoptive admissions.

Plaintiff in his cross-motion seeks to introduce into evidence defendant Ford's own training manuals and a related deposition testimony by Ford's employee, Albert Rocker ("Rocker"), a field operations manager and former instructor for Ford Motor Company who was deposed on August 10, 2006. According to plaintiff, the statements in Ford's own training manual constitute admissions by Ford and are thus admissible as evidence. Defendant in opposition to plaintiff's cross-motion, argues that because an agency of the federal government, the Occupational Safety and Health Administration ("OSHA"), requires defendants to train their employees as to the dangers of exposure to asbestos when performing work with brake products, and because the information in the training manuals is specifically mandated by OSHA, the statements were made involuntarily and thus cannot be considered admissions by the defendants. These issues raised in the parties' motions are addressed separately below.

CCAR Safety and Pollution Prevention Program ("S/P2")

Defendants move to preclude the admission of training materials created by CCAR as such statements contained therein constitute hearsay.

CCAR, according to the affidavit of Robert G. Stewart, the President of CCAR, is an independent not-for-profit organization that "represents all segments of the automotive industry" and, among other things, "provides training to current and prospective automotive mechanics." To carry out its goals, CCAR created the S/P2 safety and pollution training program for the automotive industry and makes it available to the public through a Web site.^[FN2] Plaintiffs argue that defendants have adopted and recommended the S/P2 program and, therefore, the statements contained therein should be considered adopted admissions by defendants.

Generally, any declaration or conduct of a party that is inconsistent with the party's position at trial may be offered against that party as an admission. (See Prince, Richardson on Evidence § 8-201; Reed v. McCord, 160 NY 330, 341 [1899]). Admissions must be against the party's interests at the time of trial, but need not have been against the party's interests at the time the admission was made. (People v. Swart, 273 AD2d 503 [2000]; see Prince, Richardson on Evidence § 8-203). "Statements made by a person [who is not a party], who is not otherwise an agent or authorized to speak on behalf of a party, may be considered as adoptive admissions if the direct or circumstantial evidence clearly indicates that the party acknowledges and assents to such statements." (Polito v. Anchor Packing Company et al., 2 Misc 2d 518, 524 [Sup.Ct., Monroe Cty 2003], citing People v. Campney, 94 NY2d 307 [1999]. See also Prince, Richardson on Evidence § 8-231).

The S/P2 program contains several statements which are inconsistent with the defendants' anticipated position at trial. Under the heading "Asbestos Dust and Fibers are Dangerous," the program warns that use of asbestos has its risks:

If asbestos, and particularly the fine dust from wear, is not handled correctly during repair, the tiny asbestos fibers can become airborne and can be inhaled. Inhalation of too much dust and fibers can cause a disease called asbestosis. This disease can lead to other lung diseases, including mesothelioma and cancer."

While it is true that defendants were not involved in the curricula development or implementation of the S/P2 program, it is clear from Rocker's January 5, 2005 memorandum and his deposition testimony that Ford publicly adopted the statements made in the S/P2 program. Specifically, Rocker acknowledges in his testimony that the warning that exposure to asbestos dust can lead to diseases such as mesothelioma (quoted above), was part of the training program when he reviewed it. If Ford did not agree with the statements about the potential hazards of its product, it could have chosen not to endorse the program, to ask CCAR to modify the program, or could have provided some limited form of endorsement noting its strong disagreement with some aspects of it. This is not a circumstance where CCAR used Ford's name without Ford's knowledge or assent. Rather, Ford affirmatively advocated for the program's use to independent car dealers ^[FN3] and to vocational training programs, parties to which it had no affirmative duty regarding training. It did so with no reservations whatsoever.

The court finds defendants' remaining arguments on exclusion of the CCAR documents unavailing. At oral argument, defendants contended that OSHA, in fact, really authored the S/P2 program pursuant to an agreement between OSHA and CCAR.^[FN4] The agreement, submitted by defendants as an exhibit attached to their motion papers, does not support that contention. Moreover, Robert Steward, the president of CCAR, states in his affidavit that it was CCAR who developed the program. Likewise, any assertion that the agreement between CCAR and OSHA mandated CCAR's development of the S/P2 program and its contents is likewise not borne out by the evidence. Defendants further argue that as the insurance industry "essentially" mandated the use of S/P2 by independent dealers in training, any adoption of the statements contained therein was done involuntarily. Defendants, however, failed to produce any evidence that the program was mandated by the insurance companies or that Ford was required to insure persons not [*4]employed by them, i.e. the independent dealers and vocational instructors.

The court thus denies the portion of defendants' motion seeking to preclude plaintiff from offering the S/P2 training materials into evidence at trial.

CCAR Web Site, Videos and Links Not Part of S/P2

Defendants object to any use by plaintiff of information offered on CCAR's Web site that is not part of the S/P2 program, specifically a Web page entitled "Preventing Asbestos Disease Among Auto Workers," a videotape for sale entitled "Help You Control Brake Dust...Don't Blow It!" and links to outside Web sites. No evidence has been produced to indicate that Ford has endorsed or adopted any statements or conduct by CCAR beyond the S/P2 training program. While the videotape appears to be referenced, it is not part of the program itself and therefore cannot be said to have been endorsed by Ford in the Rocker memorandum. Thus, any statements or references to further information found on the CCAR Web site are precluded as they are hearsay statements attributable only to CCAR.

Training Material Created by Ford Motor Company

The Ford training products plaintiff seeks to admit are 1) Motorcraft Web Based Training, Brake Service Procedures ("Motorcraft Web"); 2) Motorcraft Student Guide, Advanced Brake Service and Brake Lathe Training ("Motorcraft Student Guide"); 3) Ford General Brakes Theory and Operation Self-Study Student Reference Book ("Ford Self-Study Book"); 4) Ford General Brake Theory and Operation Interactive Study Guide ("Ford Interactive Guide"); 5) Ford Brake System Diagnosis and Repair Student Guide ("Ford Student Guide"); and 6) Ford Rotunda Catalogue.^[FN5]

Plaintiff argues that the statement contained in the training manuals constitute admissions by Ford. Defendants seek to preclude the use of these training materials arguing that the warnings and statements about the dangers of working with products that contain asbestos are mandated by OSHA regulations and as such were not made voluntary, and, therefore, cannot be imputed to them as statements of the defendants' views. In opposition, Plaintiff argues that the Ford training materials, together with Rocker's deposition testimony, which explains the use of the training materials by Ford, constitute admissions by Ford in that (1) the statements in the materials go beyond the mandates of OSHA (discussed below), and 2) that Ford's wide dissemination of the materials to persons other than their employees contradicts Ford's contention that the materials were created to comply with the requirements of OSHA.

A preliminary discussion of OSHA, its mandate, and the applicable regulations is helpful to frame the issues. OSHA, a federal agency charged with regulating the safety of employees in the workplace, promulgates regulations regarding safety precautions, warnings, and training, among other things, which must be implemented by employers in order to reduce illness and accidents in the workplace. ( See 29 USC 651, et seq., Occupational Safety and Health Act of 1970). OSHA does not govern the relationship between employers and the public at large, but rather governs the relationship between an employer and its own employees. (See 29 CFR 1910.1). OSHA has promulgated regulations regarding the appropriate methods by which employers must handle and train employees to handle asbestos in the workplace, generally (29 CFR 1910.1001 et seq. [effective through November 22, 2006]), and specifically with regard to work practices and engineering controls for automotive brake and clutch inspection, disassembly, repair and assembly (Appendix F to 29 CFR 1910.1001 et seq.). The general regulations apply to occupational exposures to asbestos, including those in the automotive industry. (29 CFR 1910.1001(a)(1)). [*5]

Section 1910.1001(j) regulates the communication of asbestos hazards by the employer to the employee, and states that, "[e]mployees who repair and replace automotive brakes and clutches may be exposed to asbestos fibers." This section assigns "specific information conveying and retention duties" to both employers and to building owners. (Id.) In addition to requiring employers and building owners to determine the presence location and quantity of asbestos-containing material at a work site (29 CFR 1910.1001(j)(2)(I)), signs containing specific warnings, including "DANGER," "ASBESTOS," "CANCER AND LUNG DISEASE HAZARD," and "AUTHORIZED PERSONNEL ONLY" must be posted at the site. (29 CFR 1910.1001(j)(3)(ii)(A)). Employers and building owners must also label raw materials, mixtures, scrap, waste, debris and other products or containers containing asbestos fibers. (29 CFR 1910.1001(j)(4)(ii)).

Section 1910.1001(j)(7) governs employee information and training, and mandates a training program "for all employees who are exposed to airborne concentrations of asbestos at or above the PEL [permissible exposure limit] and/or excursion limit and ensure their participation in the program." (29 CFR 1910.1001(j)(7)(I)). Training must be provided prior to or at the time of initial assignment and at least annually thereafter (29 CFR 1910.1001(j)(7)(iii)), and the regulations are specific as to what employers must inform employees. Such items include:

The health effects associated with asbestos exposure;

The relationship between smoking and exposure to asbestos producing lung cancer;

The quantity, location, manner of use, release, and storage of asbestos, and the specific nature of operations which could result in exposure to asbestos;

The engineering controls and work practices associated with the employee's job assignment;

The specific procedures implemented to protect employees from exposure to asbestos, such as appropriate work practices, emergency and clean-up procedures, and personal protective equipment to be used;

The purpose, proper use, and limitations of respirators and protective clothing, if appropriate;

The purpose and a description of the medical surveillance program required by paragraph (l) of this section;

The content of this standard, including appendices;

The names, addresses and phone numbers of public health organizations which provide information, materials, and/or conduct programs concerning smoking cessation. . .;

The requirements for posting signs and affixing labels and the meaning of the required legends for such signs and labels. (29 CFR 1910.1000 (j)(7), et seq.)

According to Rocker, Ford has produced several training programs and employs over one hundred instructors to train individuals at Ford training centers across the country. Many of the statements in the training materials, which plaintiff seeks to admit, contain similar warnings with regard to asbestos (e.g., "Warning. Asbestos fiber dust may be present on brake assemblies and is hazardous to your health if inhaled." [Motorcraft Web]; "Dust and dirt present on car wheel brake and clutch assemblies may contain asbestos fibers that are hazardous to your health when made airborne by cleaning with compressed air or by dry brushing." [Ford Self-Study Book]; "Warning: Do not inhale dust from brakes, clutches, or associated components. Inhalation of dust containing asbestos fibers could cause cancer or asbestosis." [Ford Interactive Guide]).

Warnings such as these, defendants argue, are consistent with OSHA's mandate that employers warn their employees about the health effects associated with asbestos and asbestos-containing products, and therefore plaintiff should not be permitted to introduce these statements as admissions by defendant Ford. Nowhere in the training materials does Ford limit the scope of the warnings by, for instance, providing that they have been issued in accordance with the rules and regulations promulgated by OSHA.

Plaintiff, on the other hand, points out that the warnings in Ford's training materials go beyond that which was required by OSHA. In a video which accompanies the Ford Self-Study Book, entitled "General Brakes Theory and Operation," the following warning is given: "While asbestos works well on brake shoes, it does not work well with the human body." (Emphasis added.). The Ford Self-Study Book itself warns technicians against taking shortcuts, noting that while the technician may save himself a few minutes, "no amount of money will ever buy that technician another set of lungs." (Emphasis added.) Statements such as these, which go well beyond what is mandated by OSHA, belie Ford's claim that the training materials were designed solely in relation to OSHA's mandate. In so doing, Ford has made those statements their own.

As to the dissemination of the training materials to persons other than those mandated by OSHA, Rocker testified that in addition to using the training manual to train its own technicians, the training manual is used at Ford training centers to train non-Ford employees such as dealership technicians, private fleet company technicians and high school and college vocational technical instructors. Rocker also testified that Ford offers training to independent groups made up of individuals training to become technicians in the automotive field in YAATC, ASSET, MLR and FACT programs, a program at the Universal Technical Institute, and the Automotive Youth Educational Systems Program (AYES), for which Ford is a co-sponsor. In addition, as plaintiff pointed out at oral argument, members of the public can purchase the materials from Ford online.

Defendants argue their dissemination of this training material was in keeping with their moral responsibilities to the public, to their consumer, to future technicians, and to the independent dealers and that to allow plaintiff's to introduce such evidence as their admissions would, in effect, be punishing them for being good corporate citizens. While the Court recognizes that employers and industry leaders may have obligations beyond those imposed by the law, and is encouraged by defendants' position in this regard, this decision addresses a very discrete evidentiary issue: can public conduct and statements by defendants outside of court be used to contradict statements by defendants during the course of litigation on the issue of causation? This question must be answered in the affirmative. Defendants remain free to offer evidence at trial that their intent was merely to comply with OSHA regulations and to be good corporate citizens. Contrary to defendants' assertion, allowing the Ford training materials to be used at trial does not "punish" them, but merely allows a jury to determine what weight to give them.

While these statements and others like them may be prejudicial to the defendants, their probative value on the issue of whether defendants' products can be hazardous and lead to cancer, far outweighs any prejudicial effect, particularly where defendants are not precluded from offering evidence and arguing at trial that such statements are not an admission and were merely [*7]made to conform with OSHA's mandates. ^[FN6]

Deposition Testimony of Albert Rocker, Robert Slovey and Chris Wallace

Defendants' argument that the Court should exclude the deposition testimony of Albert Rocker as relates to the training manual or the CCAR S/P2 program, as such documents constitute hearsay evidence, has been rendered academic by this Court's decision that the documents defendants seek to exclude are admissible. As discussed above, Rocker testified to the use and dissemination of Ford's training materials and to the January 2005 memorandum in which Ford endorsed the S/P2 program. The Court need not address at this juncture whether the plaintiff may read at trial from the depositions of Robert Slovey, the national ASEP/AYES manager for General Motors, or Chris Wallace, the technical training integration manager for General Motors, as plaintiff has not sought their admission nor provided any evidence of admissibility for their use against General Motors. As such, the Court declines to rule on their admissibility at this time and grants plaintiff leave to renew this portion of their motion at trial.

Conclusion

For the reasons stated above, the Court denies the portion of defendants' motion seeking to preclude plaintiff from offering into evidence the S/P2 training materials but grants that portion of defendants' motion seeking to preclude any and all materials found on the Web sites, links to Web sites and the videotape offered by CCAR, which are not part of the S/P2 program. The Court grants the portion of plaintiff's motion allowing plaintiff to introduce into evidence at trial the defendant Ford Motor Company's training materials and to read into evidence the relevant sections of the Rocker deposition.

This constitutes the decision and order of the Court.

Dated:March 5, 2007____________________________

New York, New YorkHON. Karen S. Smith, J.S.C.