SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EXPERIMENTS" OPINIONS AND OTHER EVIDENCE OF "FIBER RELEASE

--------------------------------------------------------------------------X IN RE: NEW YORK CITY ASBESTOS LITIGATION --------------------------------------------------------------------------X This Document Relates To: MARY MURPHY-CLAGETT, as Temporary Administrator for the Estate of PIETRO MACALUSO, Index No. 190311/2015 Plaintiffs-Respondents, -against- A.O.SMITH CORPORATION, et. al., Defendants, -----------X Dear Justice Mendez: Please accept this letter application, in accordance with your directives in advance of the trial's start, in FURTHER support of Plaintiff's motions in limine to preclude the opinions and other evidence of fiber release experiments executed by experts for Peerless. PLAINTIFFS' SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE EXPERIMENTS" OPINIONS AND OTHER EVIDENCE OF "FIBER RELEASE Since the filing of Plaintiffs' "omnibus" motions in limine new evidence has been produced, namely video tape and photographs of the tests performed on a 1973 Peerless boiler, at the behest and funding by attorneys for Peerless. These tests are the basis of the report filed by Peerless as the basis for their expert's testimony which Plaintiff seeks to preclude. As a matter of background, the Exponent tests and report written primarily by Dr. Delno Malzahn (hereinafter "Mr. Malzahn," who is the witness Peerless seeks to call in the Macaluso case were all performed and written up more than a decade ago in a case unrelated to the Macaluso case. The report, video and photographs, all highlight and depict a potential asbestos exposure setting so distinct from and different than the exposure settings and processes as described by Mr. Macaluso and supported by the evidence that no foundation could possibly be

made to show the jury that the boiler Peerless's expert conducted tests upon was at all similar to the boilers' to which Mr. Macaluso was exposed. These distinct and significant differences between what the defense experts tested and what Mr. Macaluso experienced are so stark that allowing the experts to testify to this test would unduly confuse the jury, call for speculation and ask the jury to take leaps in logic that could not be relied upon. Experiments, such as the one performed by Mr. Malzahn, are incompetent as evidence where they do not duplicate the essential conditions existing at the time of the exposure and all testimony about it must be precluded. The Boiler Which Was the Subject of the Malzhan Test was Too New and "Modern" As an initial matter, the boiler upon which Mr. Malzhan was a 1973 model. Mr. Macaluso only alleges exposures to the removal and cleaning up of significantly older Peerless boilers between the years 1972 and 1982 (see Exhibit 1, deposition of Pietro Macaluso p. 260:19-261:11. There would never be a reason for Mr. Macaluso to remove a Boiler built and sold in 1973, thus any results of testing done from work on such a "modern" model would be irrelevant. Different Asbestos Containing Products Were the Subject of the Malzhan Test Secondly, the testing done on the 1973 boiler focused on the removal of asbestos gaskets form the Peerless Boiler. In fact, Mr. Malzhan's report specifically notes that the external insulation on the boiler on which he conducted his tests was fiberglass (see Exhibit 2- Exposure to Airborne Asbestos Fiber During Installation and Dismantling of a Peerless Residential Boiler, at page 4. Mr. Macaluso testified (in response to Peerless's own attorney's questions that the exposure he had to Peerless boilers was from the external insulation. 11 Q. Where -- and from the dissembling process, 12 where would the dust be coming from? 13 A. The majority would be from the jacket. Well, 14 Um going to call it a jacket, but the stuff around -- 15 stuck to the outside of it. 16 Q. Okay. And that was this white chalky material

you' 17 you've discussed before? 18 A. Yes. 19 Q. Anything else, apart from that, in relation to 20 a Peerless unit that you removed? 21 A. No. 22 Q. So your exposure to asbestos from Peerless 23 would have been solely from the external insulation that 24 surrounded the outside of the unit; is that correct? 25 A. As far as 1 can recall.page363:11-363:25 It is important to note that Mr. Macaluso's description of older Peerless Boilers being insulated externally with asbestos is corroborated by Peerless's own documents and product descriptions. For instance, in their own catalogues for older boilers (like the ones Mr. Macaluso would have to remove, Peerless advises the following i "-".'- ' i '--: I -'.! ',:; t. ', '>:; See Exhibit 3 i cements. Nowhere does Mr. Malzhan test the removal of ANY asbestos containing plastic Different Tools Were Used in the Malzhan Testing Further, as depicted in the video Mr. Malzhan conducted his testing using small, gently used modern tools to disassemble the 1973 boiler which had a metal jacket insulated with fiberglass, not asbestos. Mr. Macaluso routinely used asledgehammer to physically smash apart old sections of Peerless boilers. See Exhibit 1 at 92:7-92:10; 176:7-176:13; 177:14; 177:11-219:17-219:20, 261:12-261:16 and see 19 Once you started to remove one of these 20 boilers, whether it was round, slash, oval or 21 rectangular, what was the first thing that you did? 22 A. What do you mean? What was the first thing I

23 did to remove the units? 24 Q. Yeah. What was the first step that you took? 25 A. We were -- generally scraped the outside, just Page221 1 to see where -- what I'm going to call hinges were, the 2 connecting points. And then you'd whack them to see 3 them pop apart. So we'd use a scraper, a crowbar, and a 4 sledgehammer. 5 Q. What were you scraping? we' 6 A. Well, like I said, on the outside, what re 7 going to call the white stuff -- which is the asbestos 8 or insulation, whatever you guys want to call it -- 9 that's what I did with the scraper. Then we would do 10 further on the -- on the edges with the crowbar to get 11 it to come apart. The crowbar -- I mean, the 12 sledgehammer was usually to make bigger pieces into 13 smaller ones. 14 Q. Okay. So you used the scraper to remove some 15 of this white insulation from the outside. Do you know 16 what that insulation contained? 17 A. Asbestos. Page 220:19-221:17... 16 Q. When you were using the sledgehammer on these 17 boilers, was that -- was there still some white 18 external -- 19 A. Oh, yeah, there was -- 20 Q. -- insulation on them? 21 A. It was covered with insulation, and it would 22 just fly off and create lots of dust. Page 226:16-221:22 It does not take the expertise of an Industrial Hygienist to understand that Mr. Macaluso's violent swinging of heavy sledgehammers, and intense scraping of crowbars on cement would have a significantly different effect on the ambient air environment of a worker, then the deliberate, dainty and gentle use of small hand tools like those wielded by Mr. Malzahn and his colleagues. Considering the long-held principle in New York Law (citations below that experiments are incompetent as evidence where they do not duplicate the essential conditions existing at the time of the exposure, and that the very nature of the work described by Mr. Macaluso being drastically different to that of Mr. Malzahn, this Court should not permit evidence of Mr. Malzahn's tests. The risk would be too great to confuse the jury by allowing the defendant to establish alternative facts that do not relate to the case.

The Boiler Malzhan Tested Was of Different Size and Shape Than the Peerless Boilers to Which Mr. Macaluso was Exposed Not only did Mr. Malzhan's tests, video, pictures and reports not capture exposure to a boiler old enough to fit Mr. Macaluso's exposure setting; contain all the types of asbestos products peerless sold and to which Mr. Macaluso was exposed; and did not utilize the same tools that Mr. Macaluso used routinely in his work; Mr. Malzhan did not even use the correct size or shape of boiler as described by Mr. Macaluso. Peerless made many boilers over the years of various sizes and shapes. It is not anticipated to be disputed that Peerless made round boilers (which Mr. Macaluso described as exposing him to asbestos, rectangular boilers (which Mr. Macaluso also described as exposing him to asbestos, and relatively large boilers (which Mr. Macaluso also described as exposing him to asbestos. See Exhibits 4, and 5. In this case, peerless seeks to introduce the results of testing to infer that Mr. Macaluso couldn't have been exposed to their products based on a modern boiler being dismantled. The boiler tested by Mr. Malzhan is about three feet tall but only two feet or so wide. See Exhibit 6, photograph of Peerless boiler when being tested by Mr. Malzhan. This test addresses an incredibly minute subset of the many different boilers sold by Peerless and that Mr. Macaluso alleged exposure. To permit this test and ask the jury to use information form it to be applied to their vast array of products would be impermissible. Malzhan Never Conducted any testing Regarding Potential Exposure During the Carrying Out of Boiler Pieces, Clean-up of Debris, Or Sweeping Up Described by Mr. Macaluso of Work Space as Pietro Macaluso's primary job between 1972 and 1982 as a Laborer was the cleaning up

of environments so that more skilled (and older contractors could do their work. His work thus entailed the breaking up of boilers as discussed above. Further, however, it was also Mr. Macaluso's primary responsibility to take the broken-up pieces out of the basements and out to be disposed of. After the debris was carried out (usually in wheelbarrows, it was Mr. Macaluso's job to sweep up. See Exhibit 1, supra. Throughout Mr. Macaluso's testimony, he discusses the process of cleaning and describes how the sweeping up of spaces where the boilers were would cause significant amounts of dust. See Exhibit 1 at 228:25-230:19 25 Q. Once you carried all the pieces of the boiler 1 out, did you have to do anything else with respect to 2 finishing that boiler job? 3 A. I was responsible for sweeping everything; so 4 beyond just the normal stuff around the boiler, I took 5 care of sweeping the entire room and getting all the big 6 piece -- parts off of everything that -- I returned -- 7 returned that space swept clean. 8 Q. Okay. What were you sweeping after you 9 removed all the boiler parts? 10 A. I mean, there was that stuff everywhere, which 11 was -- 12 Q. What stuff? 13 A. The white -- it looked like either rope that 14 was the insulation; or it was the white, powdery 15 asbestos which had been sort of put on with a trowel. 16 But all this would sort of fluff off the unit, and it 17 would be all around the room. It was in the air and all 18 around the path that you would take to bring it back and 19 forth from the Dumpster. It was everywhere. 20 Q. That was going to be one of my next questions. 21 What did you do with these pieces after you got them out 22 of the basement? 23 A. Yeah, we -- like I said, we either manually, 24 individually, carried them; or they were carried in a 25 wheelbarrow to the Dumpster. And the Dumpster was as 1 close to the basement as we could get it; you know, 2 usually in front of the house. 3 Q. How did -- what did you use to sweep the 4 basement? 5 A. A regular broom. 6 Q. And then how did you pick up the pieces 7 that -- that you were sweeping? 8 A. Very creatively. With a piece of cardboard. 9 Q. Were any conditions created when you swept the 10 basement and -- 11 A. Well, it got ever more -- 12 Q. Let me just finish. Okay? Were any 13 conditions created when you swept the basement after 14 removing these boilers? 15 A. It became even more dusty. 16 Q. Did you breathe in that dust? 17 A. No, I didn't breathe that in. Yes, of course

can' 18 I did. I breathed in tons and tons of dust. I can't 19 even remember. It was everywhere, all the time. The video and photographs taken during Mr. Malzhan's test of the Peerless Boiler shows plainly how filthy and dusty the dismantling of the boiler is. Throughout the video (available upon request the testers' clohes have dust on them. The floor below the boiler after partial dismantling is covered in debris see Exhibit 7. Curiously, at no time, as described in the report, or shown on video, does Mr. Malzhan and his colleagues clean anything up. Allowing evidence of a test that ignores such a potential source of significant exposure, while concluding that Peerless boilers do not pose a risk would confuse the jury. Authority and Argument (A Admitting Evidence Regarding Mr. Malzahn's Tests In This Case Is Akin to Permitting Defendants' De Experts To Establish the Facts, Rather Than Rely on Them The proponent of experimental evidence must establish a "substantial similarity between the conditions under which the experiments were conducted and the conditions at the time of the event at issue." Styles v. General Motors Corp., 20 A.D.3d 338, 339, 799 N.Y.S.2d 38 (1st Dept. 2005(citations omitted. Experiments are incompetent as evidence where they do not duplicate the essential conditions existing at the time of the exposure. Id; see also Quinn v. Artcraft Const., expert' Inc., 203 A.D.2d 444, 445, 610 N.Y.S. 598 (2d Dept. 1994(internal citations omitted(an expert's opinion must be based on facts on the record; testimony based on speculation is inadmissible. As shown above, there are vast differences to each and every aspect of the tests performed by Mr. Malzahn and the exposures described by Mr. Macaluso. Without at least some evidence on the record that the experimental conditions relied upon by an expert are "substantially similar" to those encountered by Mr. Macaluso, the results any such experimentation are inadmissible. Further, lacking any numerical data based on the actual conditions under which Mr. Macaluso was

exposed to asbestos, any recreation or attempt to assign particular values to that his exposure would be too hypothetical and speculative. The kind of data that Defendant's experts would need to perform such a reconstruction are absent in this case and permitting defendants' witnesses to speculate as to what the missing information may be (or ignore it completely and then present a "conclusion" to the jury would be to allow an expert tell the jury what the facts of the case are, rather than what they mean. (B Expert Testimony Should be Excluded When The Basis for That Testimony is Not "Reasonably Reliable" If the facts upon which an expert opinion is based are unreliable, the opinion is unsound and is inadmissible. See Styles, supra. Stated differently, an expert's opinion itself cannot be invoked as a means to establish the facts. Allowing imprecise dose reconstruction or comparison opinions would, essentially, entail having defendants' experts establish facts, rather than relying upon facts otherwise established-because they would be opining as to values with no foundation in the record. The trial court is granted broad discretion in determining whether the facts underlying an expert's opinion are reliable. As noted above, without reliable numerical data upon which to base a dose reconstruction in this case, it is impossible to assign mathematically precise values or percentages to Mr. Macaluso's asbestos exposure. Defendants' witnesses should not be permitted to discuss dose reconstruction at trial, nor should they be permitted to state a specific percentage or total amount of asbestos to which Defendants' witnesses believe a plaintiff was exposed. For the reasons herein stated, Plaintiff ask this Court to grant their motion in limine to exclude any evidence regarding Mr. Malzahn's opinions and any related testimony and/or evidence.

Date: February 23, 2018 Respectfully Submitted, Sily(nons Hanly Conroy Attorneys for the Plaintiff Daniel P. Blouin, Esq. James Kramer, Esq. 112 Madison Avenue, 7th FlOOr New York, NY 10016 (212 784-6400 dblouin a simmonsf>rm.com