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Full title: Response /Bestwall's Reply in Support of Its Motion Compel the ACC and the FCR to Comply with Paragraph 8 of the Case Management Order Hearing scheduled for 08/31/2021 at 9:30 AM at 3-LTB-Charlotte Courthouse (RE: related document(s)1960 Motion (Other) filed by Debtor Bestwall LLC) Filed by Garland S. Cassada on behalf of Bestwall LLC. (Cassada, Garland) (Entered: 08/26/2021)

Document posted on Aug 25, 2021 in the bankruptcy, 7 pages and 0 tables.

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(the “Objection”), the ACC and the FCR (together, the “Claimant Representatives”) offer no substantive response to the significant concern on which the Debtor’s Motion to Compel Compliance with Paragraph 8 of the Estimation Case Management Order [Dkt. 1960]Because the Claimant Representatives have failed to disclose subjects of expert testimony, the Debtor will not learn the subjects to which its experts must respond until expert reports are served.Delaying subject disclosure until expert reports are served, as the Claimant Representatives have sought to do despite the clear language of the Estimation CMO, could leave Bestwall with insufficient time to find and engage an expert on a potentially unanticipated subject who can prepare a rebuttal report within the timeframe currently required by the Estimation CMO.That is why the CMO requires advance disclosure of the subject matters of anticipated expert testimony; it is also why the Debtor filed this Motion. 3 See Order Approving Application of The Official Committee of Asbestos Claimants Authorizing the Retention and Employment of (A) Kazan, Mcclain, Satterley & Greenwood, A Professional Law Corporation; (B) Maune Raichle Hartley French & Mudd, LLC; (C) Ruckdeschel Law Firm, LLC; and (D) Weitz & Luxenberg PC as Special Litigation Counsel for Any Medical Science Matters Arising in Connection with an Estimation Hearing [Dkt. 426].

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UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION IN RE: Case No. 17-BK-31795 (LTB) BESTWALL LLC,1 Chapter 11 Debtor. BESTWALL’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL THE ACC AND FCR TO COMPLY WITH PARAGRAPH 8 OF THE CASE MANAGEMENT ORDER In their Joint Objection to Debtor’s Motion to Compel Compliance with Paragraph 8 of the Case Management Order [Dkt. 2013] (the “Objection”), the ACC and the FCR (together, the “Claimant Representatives”) offer no substantive response to the significant concern on which the Debtor’s Motion to Compel Compliance with Paragraph 8 of the Estimation Case Management Order [Dkt. 1960] (the “Motion”) is based. The Objection cannot and does not dispute the prejudice that the Claimant Representatives’ noncompliance will cause. Because the Claimant Representatives have failed to disclose subjects of expert testimony, the Debtor will not learn the subjects to which its experts must respond until expert reports are served. CMO compliance would have provided the Debtor with approximately four-months’ notice to adequately prepare to address the subjects contained in the Claimant Representatives’ expert reports. Meaningful compliance with the Estimation CMO’s provision requiring disclosure of the subjects upon which the Claimant Representatives’ experts are expected to opine is required to prevent this harm. The Motion therefore should be granted. 1 The last four digits of the Debtor’s taxpayer identification number are 5815. The Debtor’s address is 133 Peachtree Street, N.E., Atlanta, Georgia 30303.

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I. The Motion Is Not a Retaliatory Filing The Claimant Representatives start their argument by suggesting there is a race to the courthouse that they won by filing their motion on disclosures first. As a result, the Debtor’s motion to compel mandated disclosures must be a “retaliatory filing.” Objection at 1. But casting aspersions on the good faith of the Debtor and its counsel is not a defense to or an explanation for the Claimant Representatives’ failure to comply. The Debtor’s Motion raises substantive concerns; otherwise, it would not have been filed. II. The Claimant Representatives’ Timing Arguments Are Meritless The Objection argues about when the Debtor first raised the issues addressed by this Motion, as if waiver were an issue that prevents consideration of the Motion’s merits. The Claimant Representatives castigate the Debtor for not addressing the noncompliance during the omnibus hearing on July 22, 2021, arguing the “Debtor did not raise any concerns regarding the Claimant Representatives’ expert disclosures.” Objection at 4. Expert disclosures were not on the agenda at that hearing, and the Court sustained the Debtor’s objection when ACC counsel attempted to present argument with respect to the Debtor’s disclosures. See July 22, 2021 H’rg Tr. at 129-31. Waiver requires more than failing to raise concerns during a hearing on different matters. Nor can there be a waiver based on approximately two weeks passing before the Debtor raised its concerns about the Claimant Representatives’ noncompliance in writing. The Debtor addressed the issue in a timely manner, especially in the context of all that was occurring in this case in late July and early August, when the Debtor was dealing with discovery-related litigation not only in this Court, but in other proceedings elsewhere. The Claimant Representatives cite no

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case law, statute, or rule supporting waiver based on the passage of such a brief time before dealing with an opposing party’s non-compliance with a CMO. III. “Meet and Confer” Issues Should Not Delay Consideration of the Motion The Objection raises “meet and confer” issues. See Objection at 5. Yet, it is undisputed that the parties corresponded and that the Debtor filed this Motion only after the Claimant Representatives informed the Debtor they contested the Debtor’s interpretation of the Estimation CMO and it was clear they would oppose the proposed Motion. Although no further discussions occurred before the Motion was filed, it was not from a lack of effort. The Claimant Representatives cast blame for scheduling difficulties solely on the Debtor, incorrectly stating that “there had been no meet and confer due to [the Debtor’s] own unavailability.” Objection at 5. This allegation omits to mention that the Claimant Representatives also had conflicts that delayed scheduling.2 The Debtor filed its Motion when it did because it believed judicial economy would be served by allowing the Court to focus only once on the issues surrounding what the Estimation CMO requires with respect to the preliminary expert disclosures. The Court apparently agreed, setting the Motion for hearing on the same day as the ACC’s motion. See Order Shortening Notice, [Dkt. 1965]. Eventually, additional discussion on the issues in this Motion in fact occurred, in a meet and confer session on August 10. And, as the Court was informed at the hearing on August 19, 2021, the parties have continued to confer in an effort to narrow issues on this and other motions now set for hearing on August 31 and September 1, 2021. 2 As the email correspondence attached to the Objection demonstrates, the Debtor first suggested meeting on August 3, then followed up to suggest August 4. The Claimant Representatives were initially unavailable (or did not respond with their availability). Subsequent scheduling discussions ensued. See Exhibits 3, 4, 5, and 6 attached to the Objection (e-mail correspondence dated August 2-5, 2021).

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IV. The “Preliminary” Nature of the Disclosures Does Not Justify Non-Compliance The Claimant Representatives build an argument focused on the word “preliminary” in Paragraph 8 of the Estimation CMO. The disclosures were “preliminary” only because the “subject” disclosure required by Paragraph 8 would be followed by disclosure of the substance of the experts’ opinions on those subjects approximately four months later when expert reports are due. Paragraph 8 does not provide a mechanism for rolling disclosures of subjects. And the Claimant Representatives do not suggest that they have any obligation (or intention) to provide true subject disclosure at any time before expert reports are produced. Thus, they propose no remedy to the substantive concern of the Motion. Because fields of expertise can be exceptionally broad and can overlap, it is only by meaningfully identifying subjects of an opponent’s expert testimony that each party can determine whether its currently engaged experts will be qualified to cover all subjects disclosed by an opposing party. V. Non-Compliance Is Not Excused Because of Purported Lack of Knowledge In a tacit concession that its disclosures do not provide meaningful subject disclosure, the Claimant Representatives rationalize their conduct by claiming that they “were not parties to any of the proceedings in the tort system.” Objection at 7. They essentially argue that after four years they do not know more than the areas of expertise of their expert witnesses. The ACC’s filing of a lengthy informational brief purporting to inform the Court on a wide of variety of issues (including medical science and litigation history) belies the assertion that they lack sufficient information to disclose the subjects they intend to address in estimation. See Informational Brief of The Official Committee of Asbestos Claimants of Bestwall LLC [Dkt. 939]. Moreover, in addition to what they have learned from four years of extensive formal and informal discovery in

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this case, the ACC has at its disposal the combined wisdom of the prominent asbestos law firms who compose the Committee and the four law firms retained as special litigation counsel for any medical science matters arising in connection with estimation.3 And the FCR and its counsel have vast experience in similar cases. That new data may be produced in discovery is not a justification for failing to disclose known subjects now. The Claimant Representatives have been working with experts and must know the subjects of their reports. Of course, both sides will attempt to narrow issues as trial approaches. Thus, some preliminarily disclosed subjects may ultimately not require expert testimony. And there is the possibility that discovery may open new subjects and justify a supplement to the preliminary disclosures. But nothing about what may occur in the future excuses ignoring the Estimation CMO’s requirement to disclose now-anticipated subjects. Further, if lack of knowledge was the problem, the remedy was to move for more time, not fail to provide the required disclosure. VI. Conclusion Delaying subject disclosure until expert reports are served, as the Claimant Representatives have sought to do despite the clear language of the Estimation CMO, could leave Bestwall with insufficient time to find and engage an expert on a potentially unanticipated subject who can prepare a rebuttal report within the timeframe currently required by the Estimation CMO. That is why the CMO requires advance disclosure of the subject matters of anticipated expert testimony; it is also why the Debtor filed this Motion. The Debtor respectfully requests that its Motion be granted. 3 See Order Approving Application of The Official Committee of Asbestos Claimants Authorizing the Retention and Employment of (A) Kazan, Mcclain, Satterley & Greenwood, A Professional Law Corporation; (B) Maune Raichle Hartley French & Mudd, LLC; (C) Ruckdeschel Law Firm, LLC; and (D) Weitz & Luxenberg PC as Special Litigation Counsel for Any Medical Science Matters Arising in Connection with an Estimation Hearing [Dkt. 426].

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Dated: August 26, 2021 Respectfully submitted, Charlotte, North Carolina /s/ Garland S. Cassada Garland S. Cassada (NC Bar No. 12352) Richard C. Worf, Jr. (NC Bar No. 37143) Kevin R. Crandall (NC Bar No. 50643) ROBINSON, BRADSHAW & HINSON, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Telephone: (704) 377-2536 Facsimile: (704) 378-4000 E-mail: gcassada@robinsonbradshaw.com rworf@robinsonbradshaw.com kcrandall@robinsonbradshaw.com Gregory M. Gordon (TX Bar No. 08435300) Amanda Rush (TX Bar No. 24079422) JONES DAY 2727 North Harwood Street, Suite 500 Dallas, Texas 75201 Telephone: (214) 220-3939 Facsimile: (214) 969-5100 E-mail: gmgordon@jonesday.com asrush@jonesday.com (Admitted pro hac vice) Jeffrey B. Ellman (GA Bar No. 141828) JONES DAY 1221 Peachtree St. NE, Ste. 400 Atlanta, Georgia 30361 Telephone: (404) 581-3939 Facsimile: (404) 581-8330 E-mail: jbellman@jonesday.com (Admitted pro hac vice) Cary Ira Schachter (TX Bar No. 17719900) Raymond P. Harris, Jr. (TX Bar No. 09088050) Erin A. Therrian (TX Bar No. 24072524) SCHACHTER HARRIS, LLP 909 Lake Carolyn Parkway, Suite 1775 Irving, Texas 75039 (214) 999-5700 Email: cschachter@shtriallaw.com rharris@shtriallaw.com etherrian@shtriallaw.com (Admitted pro hac vice)

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ATTORNEYS FOR DEBTOR AND DEBTOR IN POSSESSION

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