DARGER ERRANTE YAVITZ & BLAU LLP ATTORNEYS AND COUNSELLORS AT LAW

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1 DARGER ERRANTE YAVITZ & BLAU LLP ATTORNEYS AND COUNSELLORS AT LAW 116 EAST 27 TH STREET AT PARK AVENUE NEW YORK, NEW YORK TELEPHONE (212) FAX (212) deybllp.com January 3, 2013 Via Electronic Mail Claire P. Gutekunst, Special Master Re: NYCAL Early & Strauss Applications for April 2013 Accelerated Trial Group Dear Special Master Gutekunst: I am writing as defense liaison counsel to set forth defendants objections to the applications made by plaintiffs represented by Early & Strauss for inclusion in the April 2013 Accelerated Trial Group. Defendants reserve the right to make any additional objections that may appear as supplementary records are provided. Furthermore, defendants reserve the right to assert a forum objection in a number of the cases in this group. Many of these cases appear to have forum objections based upon the discovery responses, but the plaintiffs depositions have not yet been taken. Specifically, no depositions have been taken in Dietz 1, Giachin, Pratt and Rosenthal. Please note that depositions have been taken and concluded in Giammona, Halpern, Hanna 2 and Maestrallis. Giachin Defendants assert a medical objection to the inclusion of this case in the trial group. This case has been submitted for inclusion as a mesothelioma case. Plaintiffs counsel has provided a Pathology Report from Holy Cross Hospital in Fort Lauderdale, Florida dated 10/10/12, but there is no diagnosis of mesothelioma provided in this report. The interpretation of the cytology tested is: Negative for malignant cells. Reactive mesothelial cells. Plaintiff s Response Plaintiff s counsel had provided defendants with a pathology report dated 10/19/12 with an unequivocal diagnosis of diffuse malignant mesothelioma. 1 Application was originally made for this case to be included in the October 2012 Accelerated Trial Group. This case was bumped to this April group due to the lack of a deposition in the case. 2 Application was originally made for this case to be included in the October 2012 Accelerated Trial Group. This case was bumped to this April group when pathology materials were not timely provided in accordance with the Discovery Order applicable to the trial group.

2 Page 2 Defense Reply: OBJECTION WITHDRAWN. Dietz Defendants asserted a forum objection to the inclusion of this case in the trial group when the original application was made (see footnote 1) and reassert this objection. Although the deposition has not yet been taken, the discovery responses set forth that Mr. Dietz has been a lifetime Port Washington resident. His alleged exposure is as a brake mechanic for various employers and if all are located near his home in Port Washington, the proper forum for this case is Nassau County, not New York County. Plaintiff s Response Although a deposition in this case has yet to take place, we expect the testimony to show that Mr. Dietz was primarily exposed to asbestos through his work with automotive brakes that he purchased and handled at Bay Chevrolet in Little Neck, Queens from the 1950s-1970s. Bay Chevrolet is a named defendant in the case. There is a strong New York City connection in this case, making New York City a proper forum for this case. Defense Reply: Defendants reserve this objection until completion of a deposition in this case. Maestrallis Defendants assert a medical objection to the inclusion of this case in the trial group. This case has been submitted for inclusion as a lung cancer case. Plaintiffs counsel has provided a Surgical Pathology Report from Memorial Hospital dated May 23, The report gives a diagnosis of a thyroid malignant neoplasm and small cell carcinoma of the mediastinum, but no diagnosis of lung cancer. Paragraph XIII.A.1 of the CMO explains that the Accelerated Docket is to include cases brought by plaintiffs who are terminally ill from an asbestos-related disease with a life expectancy of less than one year (emphasis added). There is no indication here that Mr. Maestrallis has an asbestos-related disease. Furthermore, there is nothing in the medical report provided to indicate that Mr. Maestrallis has a life expectancy of less than one year as required for inclusion in this trial group. Plaintiff s Response Plaintff s counsel has provided defendants with medical records demonstrating that Mr. Maestrallis has lung cancer, an asbestos-related disease. Unfortunately, Mr. Maestrallis s lung cancer has spread to his liver and to his spleen, making it an extensive stage small cell lung cancer. He is attempting to have his cancer aggressively treated through weekly chemotherapy treatments. According to the National Cancer Institute, the median survival rate for extensive stage small cell lung cancer patients with treatment is only 6 to 12 months, making this case eligible for the in extremis trial group. Defense Reply: OBJECTION WITHDRAWN. Pratt Defendants assert both forum and medical objections to the inclusion of this case in the trial group. Mr. Pratt is currently a Tennessee resident. His

3 Page 3 diagnosis and all of his medical treatment has been in Tennessee. Furthermore, it appears that his alleged exposure was exclusively in Tennessee from July 1978 to August 2002 while working as a fitter helping build presser vessels. He also claims exposure from October 1957 until January 1978 while in the Navy on ships where he worked as a ship fitter. His only potential New York County connection was during a short time when the ship that he was on allegedly went into the Brooklyn Navy Yard for an overhaul. Nevertheless, his deposition has not yet been taken and we will reassert our forum objection at the conclusion of his deposition. Additionally, the medical report provided does not satisfy the medical criteria for inclusion in this trial group. Plaintiffs counsel provided a needle biopsy report for lung tissue from the Baptist Memorial Hospital in Memphis, Tennessee dated May 1, 2012 indicating a diagnosis of well to moderately differentiated adenocarcinoma. There is nothing in the medical report provided to indicate that Mr. Pratt is has a life expectancy of less than one year as required for inclusion in this trial group. 3 Plaintiff s Response The defendants assert a forum objection in this case, pointing to Mr. Pratt s residence in Tennessee and work in Tennessee after However, Mr. Pratt alleges no exposure to asbestos in Tennessee. His only exposure to asbestos occurred during his service in the United States Navy from During that time, Mr. Pratt participated in only one overhaul, which was his most intense period of exposure to asbestos. That overhaul, of the USS Roosevelt, lasted approximately 6 months and took place at the Brooklyn Navy Yard in Given the length of the overhaul and the intensity of exposure, we believe that there is a strong New York City connection and that this is the proper forum for the Pratt case. Regarding the medical objection in this case, we have provided medical records demonstrating that Mr. Pratt has Stage IV adenocarcinoma, a type of non-small cell lung cancer. The median survival rate for patients with this disease under treatment is only 9 months, which is considered in extremis status. Defense Reply: OBJECTIONS WITHDRAWN. Respectfully submitted, Brian Early 3 See Paragraph XIII.A.1 of the CMO: Pursuant to Paragraph XIV of this Order, the Accelerated Docket will be comprised of actions brought by plaintiffs who are terminally ill from an asbestos-related disease with a life expectancy of less than one year. Cases on the Accelerated Docket will be set for trial in accordance with Paragraph XIV ( Accelerated Trial Clusters ).

4 Page 4 We will continue to work with plaintiffs counsel in an attempt to resolve these issues and look forward to discussing them with you during the scheduled conference calls. Respectfully submitted, Jennifer W. Darger, Esq. JWD/pc cc: (via ) Brian Early, Esq. Mr. Ken Purnell

5 Page 5 bcc: Medical Defense Group (via )

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