MEMORANDUM OF LAW OF A.O. SMITH WATER PRODUCTS COMPANY

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NYCAL ASBESTOS LITIGATION.. Index No.: 190311/2015 This Document Relates To: I.A.S. Part 13 MARY MURPHY-CLAGETT as Temporary Hon. Manuel J. Mendez, J.S.C. Administrator For the Estate of PIETRO MACALUSO, Plaintiff, -against- A.O. SMITH CORPORATION, et al. Defendants. MEMORANDUM OF LAW OF A.O. SMITH WATER PRODUCTS COMPANY IN SUPPORT OF ITS MOTION FOR MISTRIAL Smith" Defendant, A.O. Smith Water Products Company ("A.O. Smith") submits this Memorandum of Law in support of its Motion for Mistrial pursuant to CPLR 4402. LEGAL STANDARD FOR MISTRIAL CPLR 4402 provides that "[a]t any time during the trial, the court...may order...a new trial in the interest of justice on such terms as may be just." A motion for a mistrial "is granted in the discretion of the Court 'when it appears that owing to some accident or surprise, defect of proof, unexpected and difficult questions of law, or like reason a trial cannot proceed without injustice to a party.' See Weinstein, Korn, Miller, New York Civil Practice, 4402.02 (citing Concord Oil Corp. v. York Heat Serv., Inc., 262 A.D. 758, 27 N.Y.S.2d 738 (2d Dept1941)). "The decision to grant or deny a mistrial is within the sound discretion of the trial court and it is to be made on a case-by-case basis." Chung v. Shakur, 273 A.D.2d 340, 709 N.Y.S.2d 590 (2d Dept 2000) (citing tv0488890.1} 1

Taylor v. Port Auth. Of N.Y. & N.J., 202 A.D.2d 414, 415, 608 N.Y.S.2d 499 (2d Dept 1994)); McNamara v. Hittner, 2 A.D.3d 417, 767 N.Y.S.2d 800 (2d Dept 2003); Torres v. City of New York, 306 A.D.2d 191, 762 N.Y.S.2d 67 (1st Dept 2003). With regard to a motion for a mistrial, the law is clear in New York that "the facts in each case 'must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered'" Taylor v. Port Auth. OfN.Y. & N.J., 202 A.D.2d at 415, (quoting Alford v. Sventek, 53 N.Y.2d 743, 745, 439 N.Y.S.2d 339, 421 N.E.2d 831 (1981)). The denial of a motion for mistrial "may, given the facts of a particular case, constitute reversible error where it appears that the motion should have been granted 'to prevent a substantial possibility of injustice.'" Cohn v. Meyers, 125 A.D.2d 524,527, 509 N.Y.S.2d 603 (2d Dept 1986) (quoting Halstead v. Sanky, 48 Misc.2d 586,588, 265 N.Y.S.2d 426 (1965)). THE EVIDENCE AT TRIAL On Thursday, March 15, 2018, Plaintiff's Exhibit Number 991 99 (Attached hereto as Exhibit B) was moved into evidence over A.O. Smith's counsel's objection. Prior to the use of the the documents, AO Smith objected followed by an off-the-record discussion which took place at sidebar. The documents consists of 57 pages of a 3,117 page document from the Claims Resolution Management Corporation, a subsidiary of the Manville Personal Injury Settlement Trust which was accompanied by a two page certification from the research coordinator, Margaret J. Baumgardner. The certification, dated October 23, 2015 provides that the documents, bates stamped CRMC-SHC-WITax-000001 through CRMC-SHC-WITax-003117 are true and correct copies of documents found at the Trust facility. The documents (or at least some, e.g. Bates 1 A.O. Smith has focused its attention on Plaintiff's Exhibit 99 (Johns-Manville documents). However, all of the arguments in this motion also relate to Plaintiff's Exhibits 100 and 101 (Owens-Corning documents) used during Plaintiff's examination of A.O. Smith's corporate representative, Mr. Bradley Plank. (V0488890.1) 2

stamped CRMC-SHC-WITax-000341) of Plaintiff's Exhibit 99 were used to question Mr. Plank and thereafter published to the jury. Mr. Plank could not authenticate the documents as being received by A.O. Smith in its normal course of business, and indicated that he had never seen them before. See Trial Transcript of Mr. Bradley Plank, annexed hereto as Exhibit A at 1672:20 to 1675:16. Plaintiff's counsel then read portions from the document to Mr. Plank while simultaneously publishing them to the jury, including Bates stamp CRMC-SHC-WITax-000343, and Bates stamp CRMC-SHC-WITax-00035) all of which were shipping documents of Johns Manville of components allegedly sold to A.O. Smith's Harvestore division which Mr. Plank testified had nothing to do with boilers. See Exhibit A at 1677:13 to 1677:15. Plaintiff's counsel then published Bates stamped CRMC-SHC-WITax-000357, which purported to show the sale of "asbestos tape" to A.O. Smith's Harvestore division on October 26, 1969. Mr. Plank repeated he had not seen these documents before and that the invoices had nothing to do with boilers. See Exhibit A at 1678:16 to 1678:20. ARGUMENT Mistrial is the only appropriate remedy in this case due to the unfair surprise of Plaintiff's publishing to the jury of undisclosed, inadmissible documents during their direct (" examination of A.O. Smith's corporate representative, Mr. Bradley Plank ("Mr. Plank" Plank"). This inadmissible hearsay was admitted into evidence and concerns products not relevant to this case from years before Mr. Macaluso's alleged exposure, and which were not alleged to be a source of Mr. Macaluso's asbestos exposure. Plaintiff's argued the sales records to the Harvestore Division should be admitted to prove notice when combined with Johns-Manville interrogatories already in evidence as Plaintiff's Exhibit 27. However, only the prejudice of the use of the documents remain because the Johns (V0488890.1) 3

Manville Interrogatories do not state Johns-Manville placed warnings on the packaging for asbestos tape about the hazards of asbestos. Rather, the interrogatories state that Johns-Manville placed warnings on asbestos-containing thermal insulation products. The interrogatories further specify warning labels were placed on pipe covering, block insulation, board products, asbestos cements, asbestos cloth, and asbestos millboard products. None of these aforementioned products were cited in any of the pages of Plaintiff's Exhibit 99 as being sold to A.O. Smith, thus were improperly used to mislead the jury to believe A.O. Smith was warned by Johns Manville by virtue of sales slips. No product warning was shown to have ever been placed on the subject items referenced in Plaintiffs Exhibit 99. The admission of Plaintiff's Exhibit 99 and publication to the jury is so prejudicial to A.O. Smith that cannot be remedied by any means other than mistrial. A. PLAINTIFF'S EXHIBIT 99 WAS NOT DISCLOSED AND THUS PLAINTIFF SHOULD NOT HAVE BEEN PERMITTED TO USE IT AT TRIAL. The CPLR directs that there shall be "full disclosure of all evidence material and necessary in the prosecution or defense of an action." CPLR 3101(a). "This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise." sur Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d 371, 376, (1991) (emphasis added); See 3A Weinstein-Korn-Miller, N.Y. Civ. Prac. 3101.01-3101.03. Plaintiff s failure to disclose this evidence constitutes an ambush on A.O. Smith, as A.O. Smith was not afforded the time or opportunity to review the documents (and full exhibit) prior to the documents being published to the jury, and now the jury is irrevocably tainted with inadmissible hearsay. If Plaintiff had abided by the rules of discovery, A.O. Smith could have challenged the admissibility of the documents prior to Plaintiff publishing them to the jury, saving both this Court and the jury's valuable time and resources. (V0488890.1) 4

As required by the New York City Asbestos Litigation Case Management Order ("CMO"), the duty to disclose their exhibit list falls on the Plaintiff, who must serve their exhibit list one month from the date of trial. See CMO, Section IX (G). Plaintiff served two amended trial-specific exhibit lists on December 7, 2017 and February 13, 2018 (Attached hereto as Exhibits C and D). The documents that comprised Plaintiff's Exhibit 99 were never disclosed to A.O. Smith at any point during pretrial discovery, nor were they ever listed on any exhibit list provided by Plaintiff. In addition, Plaintiff was also required to provide notice thirty days before trial of the intent to use certified business documents. CPLR 3122-a (c). Because Plaintiff did not follow this procedure, A.O. Smith is entitled to challenge the authenticity of these documents. See Karen E.A. v 545 W. 146th St., Inc., 148 A.D.3d 464, 464 (1st Dept 2017). When evidence is not provided during disclosure, but is introduced during trial, a mistrial should be granted. In the case of Bermejo v. N.Y.C. Health & Hosps. Corp., 135 A.D.3d 116, 147 (2d Dept 2015), the Court remarked that "the failure of the plaintiff's attorneys to disclose to defense counsel the [previously undisclosed] videotape...violated CPLR 3101. It also violated the spirit of New York's open disclosure policy, which, to a large extent, 'was intended to mark an end to the presentation of totally unexpected evidence and to substitute honesty and forthrightness for gamesmanship.'" In Bermejo, the Court affirmed the trial Court's decision to grant a mistrial. On March 15, 2018, for the first time in this case, Plaintiff ambushed A.O. Smith while Mr. Plank was on the stand, with a never-before-seen and incomplete set of documents. Plaintiff apparently changed the direction of their case mid-trial upon a new discovery: "[w]hat has come up is the fact that one of the - of the suppliers of asbestos to A.O. Smith is Johns-Manville..." See Exhibit A at 1681:5-7. Plaintiff ignored their ongoing obligation under the discovery rules of the State of New York to disclose all documents they believed were relevant to the prosecution of their (V0488890.1) 5

case before trial. Furthermore, use of an over-broad, catch-all provision in Plaintiff's discovery responses which references any "documents obtained by deposition of a third party or otherwise produced by a third party" should not permit Plaintiff to ambush Defendants at trial with any documents of their choosing from the hundreds of thousands of documents that have been produced by Defendants since the inception of asbestos litigation without providing proper notice of trial exhibits during pre-trial discovery. Plaintiff's failure to do so, when they have had these documents in question for over two and a half years, amounts to unfair surprise, and this type of trial tactic should not be allowed or encouraged by this Court. In light of Plaintiffs counsel's choice to withhold documents, and their candid admission to the Court that they did not disclose documents to Defendants, a mistrial is warranted when a party is surprised or ambushed with new or undisclosed evidence. See 105 N.Y. Jur. 2d Trial 297 "Surprise" (" (Feb. 2018) ("The Civil Practice Law and Rules authorize the court to grant a new trial in the interest ofjustice on the ground that a party has been surprised during the progress of a trial without fault on his or her part."); N.Y. Prac. 9:577 "Unfair Surprise" (Dec. 2017) ("A mistrial can be granted when a party is unfairly surprised and prejudiced by the introduction of evidence that is wrongfully withheld and which the movant could not have anticipated." (citing Hannon v. Dunkirk Motor Inn, Inc., 167 A.D.2d 834, 835 (4th Dept 1990))). Therefore, Plaintiffs conduct warrants a mistrial here. 1. The Documents Were Not Used to Impeach or Refresh the Recollection of Mr. Plank. Under common law, it has long been held that when a party's own witness provides a surprising answer that contradicts previous statements, the witness may be asked questions to refresh his or her recollection - which implicitly impeaches his or her credibility. See Bullard v. Pearsall, 53 N.Y. 230, 231 (1873). However, the admission of these documents does not fit into (V0488890.1) 6

that exception. Indeed, "[t]his practice of so questioning one's own witness for the purpose of refreshing the witness' recollection is permissible only in cases where the party or counsel is honestly surprised by the testimony of the witness." Prince, Richardson, Evidence 6-222 (2017 ed.) (citing People v. Cascia, 191 A.D. 376, 381, 181 N.Y.S. 855 (2d Dept 1920) and People v. Welch, 16 A.D.2d 554, 559, 229 N.Y.S.2d 909, 914 (4th Dept 1962)). First, Mr. Plank admitted some materials were purchased from Johns Manville before the use of these documents. Moreover, Mr. Plank also did not testify to anything contrary that would require his recollection to be refreshed or his credibility impeached. Additionally, there is no indication in the law that extrinsic hearsay evidence can be used to refresh the witness's recollection under such circumstances. Finally, any representation by Plaintiffs counsel that documents used for the crossexamination of a party witness do not need to be disclosed is disingenuous. See Polygram Holding, Inc. v. Cafaro, 42 A.D.3d 339, 341 (1st Dept 2007) ("'[P]retrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof,' including material which might be used in cross-examination"). The use of Plaintiff's Exhibit 99 was on the direct examination of Mr. Plank during Plaintiff's case-in-chief pursuant to Plaintiff s subpoena. While it is undisputed that Mr. Plank is A.O. Smith's corporate witness, Plaintiffs counsel was not engaging in cross-examination of Mr. Plank when the documents were used. To now represent the tactic of withholding documents is appropriate because the witness was being cross examined amounts to nothing more than Plaintiff's attempt to circumvent the rules of New York Courts with gamesmanship. (V0488890.1) 7

2. Any Argument Claiming that A.O. Smith's Corporate Representative Lacks Personal Knowledge is Insufficient to Warrant Plaintiff's Withholding of Planned Exhibits at Trial from Defendants. An argument that A.O. Smith's corporate representative lacks personal knowledge of A.O. Smith documents, and therefore needed his recollection refreshed should also be rejected. The concept of corporate personhood is well-established legal fiction. See Toren v. Anderson, Kill & Olick, 185 Misc. 2d 23, 26 (Sup. Ct. New York City, 2000). Although a corporation is a person, clearly a corporation cannot take the stand and testify. Accordingly, the collective knowledge of the corporation must be presented through its authorized agents, and in this case, through a designated corporate representative. As recognized in the Court in Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995), the education of a corporate witness is necessary in cases such as this one in which the claims relate to incidents that happened in the distant past and for which there are no current employees of the corporation with knowledge of the relevant information. The corporation is required to prepare its representative based upon information obtained "from document, past employees, or other sources." Tailored Lightning, Inc. v. Osram Sylvania Prod. Inc., 255.F.R.D. 340, 349 (W.D.N.Y. 2009) (quoting United States v. Taylor, 166 F.R.D. 356, 361 affd, 166 F.R.D. 367 (M.D.N.C. 1996). For these reasons, any statement or objection proffered by Plaintiff regarding a lack of personal knowledge of Mr. Plank should be rejected by this Court. In this case, Mr. Plank testified about the documents he reviewed, which were not provided by A.O. Smith's lawyers. See Exhibit A at 1663:17-23. Mr. Plank knew not to destroy any documents that had to do with asbestos, and he retained those documents. Id. at 1663-24 to 1664:21. His testimony was also based upon his years of employment with A.O. Smith starting in 1993, and upon talking to long-term employees of A.O. Smith. Id. at 1666:11-23. Based on Mr. (V0488890.1) 8

Plank's long employment history with A.O. Smith, and the knowledge that he acquired during his employment with A.O. Smith, make it clear Mr. Plank's testimony was not worthy of impeachment. B. PLAINTIFF'S EXHIBIT 99 VIOLATES EVIDENTIARY RULES AND WAS THUS ADMITTED INTO EVIDENCE IN ERROR. It should be noted that had the documents been properly disclosed to A.O. Smith, A.O. Smith would have alerted the Court that the documents were incomplete as well as irrelevant, arguments which might have kept them from being published to the jury. Because the jury has already seen these documents, this prejudicial bell cannot be un-rung. Plaintiffs attempt to mislead the process of this Court by publishing an incomplete, irrelevant, and previously-undisclosed exhibit prejudiced A.O. Smith's right to a fair trial process rights that cannot be remedied. This type of surprise is exactly why New York courts bar "trial by ambush." 1. Plaintiff Failed to Lay a Foundation for the Admission of These Documents. Plaintiffs counsel failed to properly lay a foundation for the admission for these inadmissible documents. Before Plaintiffs Exhibit 99 was admitted into evidence over objection and sidebar discussion, Plaintiffs counsel did not ask a single foundational question to Mr. Plank about the documents he was publishing to the jury. He simply put the document on the screen and asked Mr. Plank to confirm he was reading from it accurately. See Exhibit A at TT 1672:10 to 1690:22. In fact, Mr. Plank testified multiple times he was not familiar with those documents, and that he had never seen them before. Id. at Exhibit A at 1672:20 to 1675:16, 1677:13 to 1677:15, and 1678:16 to 1678:20. Further, as revealed from the certification attached to Plaintiff's Exhibit 99, the full exhibit of documents contains 3,117 pages (Bates stamped CRMC-SHC-WITax-000001 to CRMC-SHC- (V0488890.1) 9

WITax-003117). See Exhibit B. Because A.O. Smith was not afforded an opportunity to review the entire document set during pretrial discovery or even at trial, A.O. Smith has been denied the opportunity to consider the documents that came before and after the 57 pages that were marked into evidence. CONCLUSION Plaintiff has shown a repeated pattern of unfair surprise during this trial through their consistent failure to disclose evidence to Defendants, and their repeated push to publish inadmissible evidence to the jury. Based on the foregoing, it is clear that A.O. Smith suffered both unfair surprise and irreversible prejudice during this trial, and A.O. Smith respectfully requests that this motion for mistrial be granted, and for such other relief that this Court deems proper. Dated: New York, New York March 26, 2018 Respectfully Submitted, ECKERT SEAMANS C ERIN 4 MELLOTT, LLC By: David Katzenstein, Esq. Attorneys for Defendant A.O. Smith Water Products Co. 10 Bank Street, Suite 700 White Plains, New York 10606 tv0488890.1} 10