FILED: NEW YORK COUNTY CLERK 01/26/ :49 PM INDEX NO /2015 NYSCEF DOC. NO. 245 RECEIVED NYSCEF: 01/26/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK COUNTY Index No.: 40000/1988 ASBESTOS LITIGATION THIS DOCUMENT RELATES TO: KELLY O' O'CONNOR, Personal Representative of the Estate of RAYMOND FLOOD, deceased, Mex No.: W0M205 Plaintiff, ANTHONY & SYLVAN CORP., et al., Defendants. MARY MURPHY-CLAGETT, as Temporary ; Administrator for the Estate of PIETRO MACALUSO, Index No.: /2015 Plaintiff, -against- -against- A. O. SMITH CORPORATION, et. al., Defendants. PRE-ARGUMENT STATEMENT 1. Title of Action: The actions at issue is that which is captioned above at New York County Clerk Index No /2015and190311/2015, in which the Defendant-Appellant Pentair Water Pool and Spa, Inc., f/k/a Pentair Pool Products, Inc., improperly named as Pentair Aquatic Eco- Pool" Systems, Inc. and Pentair Water Group, Inc. (hereinafter "Pentair and/or "Defendant- Appellant" Appellant") is a defendant only in the Flood case (Index No /2015). 2. Full Names of Original Parties and Any Change in Parties: The names of the current O' plaintiff-respondents are Kelly O'Connor, Personal Representative of the Estate of Raymond Flood, deceased, and Mary Murphy-Clagett as Temporary Administrator for the Estate of Pietro ffs-respondents" Macaluso ("Plaintiffs-Respondents"). in Rider A. The full name of the other named defendants in the above-captioned actions are set forth I S of 5

2 3. Counsel for Defendant-Appellant: Counsel for Defendant-Appellant has the following name, address, and telephone number: Michelle Grady, Esq., Eckert Seamans Cherin & Mellott, LLC 10 Bank Street, Suite 700 White Plains, New York (914) Attorneys for Defendant-Appellant Pentair Water Pool and Spa, Inc. 4. Counsel for Plaintiff: Counsel for Plaintiffs-Respondents have the following name, address, and telephone number: Daniel Blouin, Esq., Simmons Hanly Conroy 112 Madison Avenue New York, NY (212) Court and County from Which This Appeal Is Taken: This appeal is taken from the New (" Denial" York State Supreme Court's January 17, 2018 decision ("Renewal Defendant- Denial") denying Appellant's motion to renew and reargue the Court's Consolidation Decision of May 17, On January 22, 2018, Defendant-Appellant served notice of entry of the Renewal Denial in the Flood action under Index No / Nature and Object of the Actions: These actions all involve alleged personal injuries relating to alleged exposures to asbestos or asbestos-containing materials. Plaintiffs-Respondents allege that such injuries resulted from exposures to asbestos or asbestos-containing materials allegedly associated with Defendant-Appellant, among other entities. 7. Result in Lower Court: On March 16, 2017, counsel for Plaintiffs-Respondents in the above-captioned actions moved to join the Macaluso, Fleigner, Story, and Flood cases for trial. Plaintiffs-Respondents' Defendant-Appellant opposed joint trial application. The Consolidation Decision dated May 17, 2017 joined the Flood and Macaluso matters. On November 1, 207, the Supreme Court declined to sign Pentair Pool's order to show cause seeking renewal and reargument of the May 17, 2017 Consolidation Decision. Pentair filed a Motion to Renew and Re- Argue on November 6, On January 18, 2018, Supreme Court issued an order denying Pentair Pool's motion to renew and reargue the Consolidation Decision in accordance with the Court of Appeals' decision in Matter ofnew York City Asbestos Litigation (Konstantin v. 630 Third Avenue Associates), 27 N.Y.3d 1172 (2016). This appeal followed. 8. Grounds for Reversal: Supreme Court should have granted Defendant-Appellant's motion to renew and reargue to sever the Flood and Macaulso cases on, inter alia, the following grounds: a) Supreme Court should not have joined cases where Plaintiffs-Respondents differed as to their occupations, worksites, types of exposure, time periods of exposure, the nature of the [S ) 2 2 of 5

3 state of the art evidence to be presented at trial, and their diseases. Under the factors delineated in Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir. 1993) (the "Malcolm Test" Test"), joinder was inappropriate as common questions of law or fact do not predominate. In deciding whether different asbestos cases have sufficient commonalities to overcome the inherent risk of prejudice and jury confusion in joint trials, a court must consider the following factors: (a) common worksite; (b) similar occupation; (c) similar time of exposure; (d) type of disease; (e) whether plaintiffs are living or deceased; (f) status of discovery in each case; (g) whether all plaintiffs are represented by the same counsel; and (h) type of cancer alleged. S_ee Malcolm, 995 F.2d at 346. In applying the Malcolm evaluation, a New York court has supplemented additional factors that must be considered; (i) whether the defendants are the same and represented by the same counsel; and (ii) whether the type and manner of the alleged exposures are similar. S_ee Ballard v. Armstrong World Indus., 191 Misc.2d 625, 744 N.Y.S.2d 304 (Sup. Ct. Monroe County 2002); see also Ambruso v. A.O. Smith Water Prods. Co. (In re NYCAL), No /2005 (Sup. Ct. New York County, May 1, 2013) (Jaffe, J.) (considering, in addition to the eight Malcolm factors, an additional factor that compares the number of defendants in each case.) Mr. Macaluso alleged exposure to asbestos when he performed home renovations from joint compound, sheetrock, floor tiles, and electrical equipment during the period of 1972 to Additionally, from approximately 1972 to 1982, Mr. Macaluso worked as a plumber's helper. As a plumber's helper he alleged exposure to asbestos at unrecalled residential locations when he replaced walls, replaced electrical wiring, applied joint compound to walls, and removed boilers. He alleged exposure to asbestos when removing the boilers from external insulation and from rope in between the boiler sections Mr. Flood alleged exposure to asbestos when engaging in home renovations at two of his personal residences in the 1960s, and from 1971 to During these renovations he alleged exposure to asbestos from sheetrock, spackle, tape, flooring, roofing shingles and felt. From 1963 to 1969, plaintiff alleged bystander exposure to asbestos when mechanics changed brakes on airplanes. Plaintiff also worked in the pool industry, along with his son Daniel, and alleged exposure to asbestos from 1983 to 1994, when he repaired pumps, filters, and heaters associated with pools. Pentair Pool will suffer prejudice and irreparable harm if the Flood and Macaluso matters are tried jointly because two (2) of the remaining defendants in the Flood matter are pool equipment manufacturers and one (1) flooring manufacturer. By contrast, there are four (4) remaining defendants in the Macaluso who are all boiler defendants. In a consolidated trial, the jury will be forced to parse through, keep track of, and differentiate between testimony and exposure evidence in one matter which has nothing in common with the other matter because there are no common products, worksites or other, occupational exposures to asbestos. Additionally, the jury will hear potentially prejudicially different state of the art evidence based on the different time periods of alleged exposures to asbestos. Finally, the jury will also hear different expert medical evidence based on the different types of cancer contracted by Mr. Macaluso and Mr. Flood; as well S I t 3 3 of 5

4 as different industrial hygiene evidence pertaining to the different products at issue - boilers (Macaluso) and pool equipment (Flood). b) Supreme Court's reliance upon this Court's consolidation opinion in Matter of New York City Asbestos Litigation (Konstantin) was misplaced. The Court of Appeals decided that this Court should not have reached the issue of consolidation in Konstantin. In fact, the Supreme Court's Renewal Decision acknowledged that this Court's opinion in Konstantin held that only because an objection was not renewed after the settlement of various codefendants, the objection to consolidation was not preserved for appellate review. 9. Related Actions and Appeals: The appeal of the Renewal Denial is not related to any other pending appeal. Dated: Newark, New Jersey January 26, 2018 Very truly yours, ~,r Midhael A. Poiav sq. ECKERT SEA.. S CHERIN 4 MELLOTT, LLC, Attorneys for Defendant Pentair Water Pool and Spa, Inc. Four Gateway Center Suite Mulberry Street Newark, New Jersey (973) To: The Clerk of Court Supreme Court of the State of New York New York County 60 Centre Street New York, New York Honorable Manuel Mendez Supreme Court of the State of New York New York County 71 Thomas Street New York, New York SIMMONS HANLY CONROY Daniel Patrick Blouin, Esq. 112 Madison Avenue New York, NY (212) (S ) 4 4 of 5

5 DEFENDANT-APPELLANT'S RIDER A. Other Defendants in the Above-Captioned Action Index No.: /2015 Index No.: /2015 Hawkins Parnell Thackston & Young, LLP McElroy Deutsch Mulvaney & Carpenter LLP 8ti) 600 Lexington Ave. Floor Wall Street Plaza New York, NY Pine Street, 24t11 Floor Attorneys for Anthony & Sylvan Corp.; New York, NY Anthony & Sylvan Holding Corp.; Anthony Attorneys for Burnham LLC & Sylvan Pools LP: Anthony and Sylvan Pools Corporation Segal McCambridge Singer & Mahoney, Hoagland Longo Moran Dunst & Doukas, LLP Ltd. 40 Paterson Street 850 Third Avenue, 11th Floor New Brunswick, NJ New York, NY Attorneys for Kohler Company Attorneys for Mannington Mills, Inc. Lewis Brisbois Bisgaard & Smith, LLP 77 Water Street New York, NY Attorneys for Peerless Industries, Inc. ECKERT SEAMANS CHERIN & MELLOTT, LLC Four Gateway Center Suite Mulberry Street Newark, New Jersey Attorneys for Defendant A.O. Smith Water Products Company 1S ) 5 5 of 5