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FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
----------------------------------------------------------- X
PATSY YOUNG,
EIGHTH JUDICIAL DISTRICT
Plaintiff, ASBESTOS LITIGATION
-against- Index No. 815818/2020
DEFENDANT AVON PRODUCTS,
INC.’S VERIFIED ANSWER TO
AVENTIS, INC., et al., PLAINTIFF’S COMPLAINT,
AFFIRMATIVE DEFENSES, CROSS-
Defendants. CLAIMS, AND ANSWERS TO
CROSS-CLAIMS
----------------------------------------------------------- X
Defendant AVON PRODUCTS, INC. (“AVON” or “Defendant”), by its attorneys,
FOLEY & MANSFIELD, PLLP, hereby answers Plaintiff’s Complaint (“Complaint”), filed on
or about December 10, 2020, and alleges, upon information and belief, as follows:
Avon denies each and every allegation contained in Plaintiff’s Complaint. Avon further
denies knowledge or information sufficient to form a belief as to the truth of those allegations
to the extent they pertain to persons or entities other than Avon. Further answering, Avon states
that it is a cosmetics and fragrance company. Avon cosmetic products never included asbestos
as an ingredient. In conducting its business, Avon has never mined, processed, manufactured,
designed, developed, tested, fashioned, packaged, inspected, sold, distributed, supplied,
delivered, installed and/or applied asbestos. Further, Avon never injected an asbestos-
containing material into the stream of commerce. Avon states that numerous epidemiological
studies, both private and those done through various government agencies, have unequivocally
stated that cosmetic products containing pure, cosmetic grade talc, such as that used in Avon
products, do not cause disease. Further, over the course of several decades, multiple statements
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of the U.S. Government, including the FDA, which regulates cosmetic products, have
unequivocally stated that there is no basis or reason to include asbestos-related warnings on
cosmetic talc products as they have not been shown to have any adverse effect on human
health. Accordingly, Avon denies that Plaintiff was ever exposed to any asbestos from a
product manufactured, sold, or distributed by Avon, and it further denies that any Avon product
ever caused or contributed to any illness suffered by Plaintiff.
1. AVON denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 1 of the Complaint.
2. AVON denies the allegations contained in paragraph 2 of the Complaint to the
extent that they apply to AVON, denies knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 2 of the Complaint insofar as this
paragraph is not directed at AVON, and refers all questions of law to the Court
3. AVON denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 4 of the Complaint, and refers all questions of
law to the Court.
4. With respect to paragraph 5 of the Complaint, AVON admits only that it is a
New York corporation which transacted business in the State of New York, with its principal
place of business located at 1 Avon Place, Suffern, New York 10901. AVON denies that it has
ever engaged in the manufacture, sale, or distribution of materials and/or products containing
the substance asbestos.
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5. AVON denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 5 through 25 (inclusive) of the Complaint, and
refers all questions of law to the Court.
6. AVON denies the allegations contained in paragraphs 26 through 32 (inclusive)
of the Complaint to the extent that they apply to AVON, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in paragraph 26 through 32
(inclusive) of the Complaint insofar as those paragraphs are not directed at AVON, and refers
all questions of law to the Court.
ANSWERING PLAINTIFF’S FIRST CAUSE OF ACTION
FOR NEGLIGENT FAILURE TO WARN
7. With regard to paragraph 33 of the Complaint, AVON repeats, reiterates and
realleges each and every response as to paragraphs 1 through 32 (inclusive) of the Complaint as
if more fully set forth herein
8. AVON denies the allegations contained in paragraphs 34 through 48 (inclusive)
of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 34 through 48 (inclusive) of the Complaint, including all subparts therein, insofar
as those paragraphs are not directed at AVON, and refers all questions of law to the Court.
ANSWERING THE SECOND CAUSE OF ACTION
FOR STRICT PRODUCTS LIABILITY
9. With regard to paragraph 49 of the Complaint, AVON repeats, reiterates and
realleges each and every response as to paragraphs 1 through 48 (inclusive) of the Complaint as
if more fully set forth herein.
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10. AVON denies the allegations contained in paragraphs 50 through 53 (inclusive)
of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 50 through 53 (inclusive) of the Complaint, including all subparts therein, insofar
as these paragraphs are not directed at AVON, and refers all questions of law to the Court.
ANSWERING THE THIRD CAUSE OF ACTION
SOUNDING IN STRICT LIABILITY
11. With regard to paragraph 54 of the Complaint, AVON repeats, reiterates and
realleges each and every response as to paragraphs 1 through 53 (inclusive) of the Complaint as
if more fully set forth herein.
12. AVON denies the allegations contained in paragraphs 55 through 61 (inclusive)
of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 55 through 61 (inclusive) of the Complaint, including all subparts therein, insofar
as these paragraphs are not directed at AVON, and refers all questions of law to the Court.
ANSWERING THE FOURTH CAUSE OF ACTION
FOR PUNITIVE DAMAGES
13. With regard to paragraph 62 of the Complaint, AVON repeats, reiterates and
realleges each and every response as to paragraphs 1 through 61 (inclusive) of the Complaint as
if more fully set forth herein.
14. AVON denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 63 through 65 (inclusive) of the Complaint,
including all subparts therein, to the extent that they apply to AVON, denies knowledge or
information sufficient to form a belief as to the truth of the allegations contained in paragraphs
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63 through 65 (inclusive) of the Complaint, including all subparts therein, insofar as these
paragraphs are not directed at AVON, and refers all questions of law to the Court.
FIRST AFFIRMATIVE DEFENSE
Plaintiff’s Complaint and each and every purported cause of action or count thereof
fails to state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Plaintiff’s claims are time barred by reason of the applicable statute(s) of limitations.
THIRD AFFIRMATIVE DEFENSE
In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections 4 and 12 as
grounds for maintaining this action, these sections are unconstitutional and this action is time
barred.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the operation of the doctrine of laches as Plaintiffs
unreasonably delayed in the bringing of this action and thereby prejudiced the rights of
Defendant.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the operation of the doctrine of estoppel.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs have waived all claims against AVON.
SEVENTH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter over each and every Count
contained in Plaintiff’s Complaint.
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EIGHTH AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over AVON with respect to each and every Count
contained in Plaintiff’s Complaint.
NINTH AFFIRMATIVE DEFENSE
The venue of this action is improper.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs lack the capacity, standing or authority to bring this action, in whole or in part.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff’s speculative, uncertain and contingent damages have not accrued and are not
recoverable.
THIRTEENTH AFFIRMATIVE DEFENSE
Joinder of individual Plaintiffs in this action or at trial is improper because they do not
assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same
transaction, occurrence, or series of transactions or occurrences.
FOURTEENTH AFFIRMATIVE DEFENSE
This cause of action must be dismissed in the event Plaintiffs have another action
pending against AVON for the same cause of action in another court.
FIFTEENTH AFFIRMATIVE DEFENSE
In the event Plaintiffs executed a settlement agreement releasing and discharging
AVON from all claims arising out of Plaintiff’s alleged injury, all claims alleged by Plaintiffs
should be dismissed.
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SIXTEENTH AFFIRMATIVE DEFENSE
Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiffs
have given a release or covenant not to sue or not to enforce a judgment to an alleged co-
tortfeasor of AVON, Plaintiff’s claims herein are reduced to the extent of any amount
stipulated by the release or covenant, in the amount of the consideration paid for it, or in the
amount of the released tortfeasor’s equitable share of the damages, whichever is greater.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiffs were not injured by exposure to any AVON products.
EIGHTEENTH AFFIRMATIVE DEFENSE
In the event that Plaintiffs were employed by any of the Defendants, Plaintiff’s sole and
exclusive remedy is under the Workers’ Compensation Law of the State of New York.
NINETEENTH AFFIRMATIVE DEFENSE
Insofar as the Complaint, and each cause of action considered separately, allege a cause
of action accruing on or after September 1, 1975 to recover damages for personal injuries, the
amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to Plaintiffs, including contributory negligence and assumption of risk, in the
proportion which the culpable conduct attributable to Plaintiffs.
TWENTIETH AFFIRMATIVE DEFENSE
Insofar as the Complaint, and each cause of action considered separately, allege a cause
of action accruing on or after September 1, 1975 each such cause of action is barred by reason
of the culpable conduct attributable to Plaintiffs, including contributory negligence and
assumption of risk.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were injured as alleged in the Complaint, which AVON
denies, said injury was proximately caused by the negligence, breach of warranty and strict
liability of persons and entities other than AVON.
TWENTY-SECOND AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were injured as alleged in the Complaint, which AVON
denies, such injury was the result of intervening and superseding acts or omissions of parties or
non-parties over whom AVON had no supervision or control or right to supervise or control.
TWENTY-THIRD AFFIRMATIVE DEFENSE
At all times relevant hereto, the knowledge of Plaintiff’s employer(s) was superior to
that of AVON with respect to possible health hazards associated with Plaintiff’s employment,
and, therefore, if there was any duty to warn or provide protection to Plaintiffs, it was the duty
of said employer, not of AVON, and breach of that duty was an intervening and superseding
cause of the injuries allegedly sustained by Plaintiffs.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
At all times during the conduct of their corporate operations, the agents, servants and
employees of AVON used proper methods in their production activities in conformity to the
available knowledge and research of the scientific and industrial communities.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs sustained injuries from the use of AVON products, which
AVON denies, such injuries resulted from the unforeseeable misuse, abuse, alteration,
modification, and unauthorized handling of the product by Plaintiffs, or by third-parties, over
whom AVON had no control or right to control.
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TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs voluntarily assumed the risks associated with the use of or exposure to the
products at issue.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AVON had no knowledge or reason to know of any alleged risks associated with
finished asbestos-containing products at any time during the purported peril complained of in
the Complaint.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs contributed to the injuries alleged by the use of other substances, products,
medications and drugs.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiff’s injuries were caused directly, solely and proximately by sensitivities,
idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general public, of
which AVON neither knew, had reason to know, nor could have foreseen.
THIRTIETH AFFIRMATIVE DEFENSE
As to all causes of action pleaded in the Complaint which are based upon expressed or
implied representations, such causes of action are legally insufficient as against AVON as there
was no privity of contract between Plaintiffs and AVON.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs never purchased, directly or indirectly, any asbestos-containing product or
materials from AVON, nor did Plaintiffs ever receive or rely upon any representation allegedly
made by AVON.
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THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs lack capacity and standing to maintain a claim for relief against AVON with
respect to injuries alleged to have been suffered by Plaintiffs.
THIRTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were exposed to any product manufactured by AVON,
which AVON denies, said exposure was de minimis and not a substantial contributing factor to
any asbestos-related disease which Plaintiffs may have developed, thus requiring dismissal of
the Complaint against AVON.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and
indispensable parties.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs are entitled to damages, which AVON denies, AVON is
entitled to a set off for all Workers’ Compensation payments received by Plaintiffs.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
In accordance with CPLR § 1601, AVON’s liability for non-economic loss is limited to
its equitable share of the total liability for non-economic loss.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
In accordance with CPLR § 4545(c), AVON is entitled to a set-off for any past or
future costs or expenses incurred or to be incurred by Plaintiffs for medical care, custodial care
of rehabilitation services, loss of earnings or other economic loss, which has been or will with
reasonable certainty be replaced or indemnified in whole or in part from a collateral source.
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE
At all relevant times, the state of the medical, scientific, and industrial knowledge, the
state of the art, practice, and prevailing industry standards regarding asbestos-containing
products was such that AVON neither knew, had reason to know, nor could have known of any
foreseeable or significant risk or harm to Plaintiffs in the normal or expected use of AVON’s
products, and, accordingly there was no duty of AVON to warn Plaintiff and that, to the extent
such duty arose, adequate warnings were either given or were not necessary under all
circumstances.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Any injuries sustained by Plaintiffs resulted from Plaintiff’s alleged use of or exposure
to asbestos or asbestos-containing products manufactured and sold in strict compliance with
mandatory specifications established by persons or entities other than AVON, including,
without limitation, agencies, agents and departments of the United States, which persons or
entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than
that of AVON concerning the properties and characteristics of asbestos and asbestos-containing
products.
FORTIETH AFFIRMATIVE DEFENSE
Any asbestos-containing products allegedly attributable to AVON were supplied
according to the purchaser’s or user’s specifications and standards.
FORTY-FIRST AFFIRMATIVE DEFENSE
AVON was under no legal duty to warn Plaintiffs of any hazards from the use of any
asbestos-containing products. The actual purchasers and those under the purchasers’ control,
Plaintiff’s employer(s), and the owners and lessors of the properties at which Plaintiffs allege
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exposure to such products, were in a far better position to warn Plaintiffs and, if any such
warning was legally required, which is expressly denied; their failure to do so was a
superseding and proximate cause of Plaintiff’s alleged injuries.
FORTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs were reasonably and adequately warned of any alleged risks associated with
the use of or exposure to asbestos-containing products.
FORTY-THIRD AFFIRMATIVE DEFENSE
Timely and/or proper notice was not given to AVON as to any alleged breach of
warranty.
FORTY-FOURTH AFFIRMATIVE DEFENSE
To the extent Plaintiff’s claims are based on an alleged breach of warranty, Plaintiffs
did not rely on any warranty.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Any oral warranties upon which Plaintiffs allegedly relied are inadmissible under the
Statute of Frauds.
FORTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that the causes of action pleaded by Plaintiffs fail to accord with the
Uniform Commercial Code, including but not limited to Section 2-725 thereof, the Plaintiff’s
Complaint and Standard Complaint are time-barred.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Any claims by Plaintiffs for exemplary and punitive damages are barred because such
damages are not recoverable or warranted.
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FORTY-EIGHTH AFFIRMATIVE DEFENSE
AVON’s conduct was not reckless, malicious, willful or grossly negligent, and
consequently, Plaintiffs are not entitled to exemplary and punitive damages.
FORTY-NINTH AFFIRMATIVE DEFENSE
Any claim for punitive damages is barred by the double jeopardy clause of the Fifth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, as Article I, Section 6 of the New York State Constitution.
FIFTIETH AFFIRMATIVE DEFENSE
Any claim for punitive damages is barred by the ex post facto clause of Article I,
Section 10 of the United States Constitution.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Any claim for punitive damages is barred by the proscription of Article I, Section 5 of
the New York State Constitution prohibiting the imposition of excessiveness.
FIFTY-SECOND AFFIRMATIVE DEFENSE
Any claim for punitive damages violates AVON's right to procedural due process as
provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article
I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New
York.
FIFTY-THIRD AFFIRMATIVE DEFENSE
Any claim for punitive damages violates AVON's right to substantive due process as
provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article
I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New
York.
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FIFTY-FOURTH AFFIRMATIVE DEFENSE
Punitive or exemplary damages cannot be awarded against AVON for any of the
alleged actions or omissions of any of AVON's predecessors because there is not a sufficient
degree of identity between this defendant and any of its predecessors to justify such an award.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
To the extent the law of any other jurisdiction is applicable to this action, any demand
for punitive damages is barred by the applicable proscriptions of the constitution of such
jurisdiction.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
AVON denies that Plaintiffs had any exposure to any asbestos product mined,
processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold, and/or otherwise placed in the stream of commerce by AVON, and more
particularly denies upon information and belief that AVON mined, processed, manufactured,
supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise
placed in the stream of commerce any asbestos product at the times and upon the dates alleged
in the Complaint herein.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
AVON denies specifically that, during the periods of exposure alleged in the Complaint
by the Plaintiffs, it mined, processed, manufactured, supplied, developed, tested, fashioned,
packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a
substantial and/or any percentage of the asbestos products to which Plaintiffs were caused to
come into contact and which Plaintiffs were caused to breathe, inhale and digest and which
thereby caused the Plaintiff’s injuries and resulting in damages alleged in the Complaint herein.
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FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiffs failed to mitigate or otherwise act to lessen or
reduce the injuries and disability alleged in the Complaint herein.
FIFTY-NINTH AFFIRMATIVE DEFENSE
AVON denies that the asbestos products alleged in Plaintiff’s Complaint are products
within the meaning and scope of the Restatement of Torts § 402A, and as such the Complaint
fails to state a cause of action in strict liability.
SIXTIETH AFFIRMATIVE DEFENSE
Defendant has been denied due process in being compelled to proceed to trial on an
accelerated basis without opportunity to engage in meaningful discovery and/or to develop its
defenses to liability.
SIXTY-FIRST AFFIRMATIVE DEFENSE
Insofar as Plaintiff’s claims against AVON stem from the alleged misconduct,
negligence or other wrongful act or tort of AVON, or any purported corporate predecessor,
affiliate or entity related to AVON, Plaintiff’s claims are barred because AVON was not
responsible for any such acts and AVON has no successor liability with regard to any such
entity/entities.
SIXTY-SECOND AFFIRMATIVE DEFENSE
All defenses which have been or will be asserted by other Defendants in this action are
adopted and incorporated by reference as if fully set forth herein. In addition, AVON will rely
upon any and all other further defenses which become available or appear during discovery in
this action and hereby specifically reserves its right to amend its answer for the purpose of
asserting any such additional affirmative defenses.
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SIXTY-THIRD AFFIRMATIVE DEFENSE
AVON may have one or more defenses founded upon documentary evidence.
SIXTY-FOURTH AFFIRMATIVE DEFENSE
The cause of action may not be maintained because of arbitration and award, collateral
estoppel, discharge in bankruptcy, infancy, or other disability of the moving party, payment,
release, res judicata, statute of limitations, or statute of frauds.
SIXTY-FIFTH AFFIRMATIVE DEFENSE
The Court may not have jurisdiction in the action, to the extent that service was made
under Section 314 or Section 315 of the CPLR.
SIXTY-SIXTH AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for AVON with respect to each and
every Count contained in Plaintiff’s Complaint.
SIXTY-SEVENTH AFFIRMATIVE DEFENSE
AVON alleges that any sales of asbestos-containing products made by it were made to
sophisticated users of such products, and that sale to a sophisticated user of the products bars
any claim of liability against this defendant.
SIXTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s claim for premises liability is barred because AVON did not exercise control
or supervise Plaintiff’s work at any facility.
SIXTY-NINTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs assert a claim under Sections 240 and/or 241 of the Labor Law,
Plaintiff’s claims under Sections 240 and 241 of the Labor Law should be dismissed because
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AVON was not an owner, contractor, or agent of an owner or contractor to which Sections 240
and 241 apply.
SEVENTIETH AFFIRMATIVE DEFENSE
This action is barred under the government contractor's defense theory.
SEVENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred inasmuch as they are preempted by one or more statutes,
rules, standards, and/or regulations of the United States Government including, but not limited
to, the Hazards Communication Standard, 29 C.F.R. §1910.1200.
SEVENTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff’s claim for collective liability is barred because all or a substantial share of the
market of all potential tortfeasors are not before the Court.
SEVENTY-THIRD AFFIRMATIVE DEFENSE
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FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ----------------------------------------------------------- X PATSY YOUNG, EIGHTH JUDICIAL DISTRICT Plaintiff, ASBESTOS LITIGATION -against- Index No. 815818/2020 DEFENDANT AVON PRODUCTS, INC.’S VERIFIED ANSWER TO AVENTIS, INC., et al., PLAINTIFF’S COMPLAINT, AFFIRMATIVE DEFENSES, CROSS- Defendants. CLAIMS, AND ANSWERS TO CROSS-CLAIMS ----------------------------------------------------------- X Defendant AVON PRODUCTS, INC. (“AVON” or “Defendant”), by its attorneys, FOLEY & MANSFIELD, PLLP, hereby answers Plaintiff’s Complaint (“Complaint”), filed on or about December 10, 2020, and alleges, upon information and belief, as follows: Avon denies each and every allegation contained in Plaintiff’s Complaint. Avon further denies knowledge or information sufficient to form a belief as to the truth of those allegations to the extent they pertain to persons or entities other than Avon. Further answering, Avon states that it is a cosmetics and fragrance company. Avon cosmetic products never included asbestos as an ingredient. In conducting its business, Avon has never mined, processed, manufactured, designed, developed, tested, fashioned, packaged, inspected, sold, distributed, supplied, delivered, installed and/or applied asbestos. Further, Avon never injected an asbestos- containing material into the stream of commerce. Avon states that numerous epidemiological studies, both private and those done through various government agencies, have unequivocally stated that cosmetic products containing pure, cosmetic grade talc, such as that used in Avon products, do not cause disease. Further, over the course of several decades, multiple statements 1 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 of the U.S. Government, including the FDA, which regulates cosmetic products, have unequivocally stated that there is no basis or reason to include asbestos-related warnings on cosmetic talc products as they have not been shown to have any adverse effect on human health. Accordingly, Avon denies that Plaintiff was ever exposed to any asbestos from a product manufactured, sold, or distributed by Avon, and it further denies that any Avon product ever caused or contributed to any illness suffered by Plaintiff. 1. AVON denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint. 2. AVON denies the allegations contained in paragraph 2 of the Complaint to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint insofar as this paragraph is not directed at AVON, and refers all questions of law to the Court 3. AVON denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 4 of the Complaint, and refers all questions of law to the Court. 4. With respect to paragraph 5 of the Complaint, AVON admits only that it is a New York corporation which transacted business in the State of New York, with its principal place of business located at 1 Avon Place, Suffern, New York 10901. AVON denies that it has ever engaged in the manufacture, sale, or distribution of materials and/or products containing the substance asbestos. 2 2 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 5. AVON denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 5 through 25 (inclusive) of the Complaint, and refers all questions of law to the Court. 6. AVON denies the allegations contained in paragraphs 26 through 32 (inclusive) of the Complaint to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 26 through 32 (inclusive) of the Complaint insofar as those paragraphs are not directed at AVON, and refers all questions of law to the Court. ANSWERING PLAINTIFF’S FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN 7. With regard to paragraph 33 of the Complaint, AVON repeats, reiterates and realleges each and every response as to paragraphs 1 through 32 (inclusive) of the Complaint as if more fully set forth herein 8. AVON denies the allegations contained in paragraphs 34 through 48 (inclusive) of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 34 through 48 (inclusive) of the Complaint, including all subparts therein, insofar as those paragraphs are not directed at AVON, and refers all questions of law to the Court. ANSWERING THE SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY 9. With regard to paragraph 49 of the Complaint, AVON repeats, reiterates and realleges each and every response as to paragraphs 1 through 48 (inclusive) of the Complaint as if more fully set forth herein. 3 3 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 10. AVON denies the allegations contained in paragraphs 50 through 53 (inclusive) of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 50 through 53 (inclusive) of the Complaint, including all subparts therein, insofar as these paragraphs are not directed at AVON, and refers all questions of law to the Court. ANSWERING THE THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 11. With regard to paragraph 54 of the Complaint, AVON repeats, reiterates and realleges each and every response as to paragraphs 1 through 53 (inclusive) of the Complaint as if more fully set forth herein. 12. AVON denies the allegations contained in paragraphs 55 through 61 (inclusive) of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 55 through 61 (inclusive) of the Complaint, including all subparts therein, insofar as these paragraphs are not directed at AVON, and refers all questions of law to the Court. ANSWERING THE FOURTH CAUSE OF ACTION FOR PUNITIVE DAMAGES 13. With regard to paragraph 62 of the Complaint, AVON repeats, reiterates and realleges each and every response as to paragraphs 1 through 61 (inclusive) of the Complaint as if more fully set forth herein. 14. AVON denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 63 through 65 (inclusive) of the Complaint, including all subparts therein, to the extent that they apply to AVON, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 4 4 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 63 through 65 (inclusive) of the Complaint, including all subparts therein, insofar as these paragraphs are not directed at AVON, and refers all questions of law to the Court. FIRST AFFIRMATIVE DEFENSE Plaintiff’s Complaint and each and every purported cause of action or count thereof fails to state facts sufficient to constitute a cause or causes of action against Defendant. SECOND AFFIRMATIVE DEFENSE Plaintiff’s claims are time barred by reason of the applicable statute(s) of limitations. THIRD AFFIRMATIVE DEFENSE In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action is time barred. FOURTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the operation of the doctrine of laches as Plaintiffs unreasonably delayed in the bringing of this action and thereby prejudiced the rights of Defendant. FIFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the operation of the doctrine of estoppel. SIXTH AFFIRMATIVE DEFENSE Plaintiffs have waived all claims against AVON. SEVENTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter over each and every Count contained in Plaintiff’s Complaint. 5 5 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 EIGHTH AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over AVON with respect to each and every Count contained in Plaintiff’s Complaint. NINTH AFFIRMATIVE DEFENSE The venue of this action is improper. TENTH AFFIRMATIVE DEFENSE Plaintiffs lack the capacity, standing or authority to bring this action, in whole or in part. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel. TWELFTH AFFIRMATIVE DEFENSE Plaintiff’s speculative, uncertain and contingent damages have not accrued and are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE Joinder of individual Plaintiffs in this action or at trial is improper because they do not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same transaction, occurrence, or series of transactions or occurrences. FOURTEENTH AFFIRMATIVE DEFENSE This cause of action must be dismissed in the event Plaintiffs have another action pending against AVON for the same cause of action in another court. FIFTEENTH AFFIRMATIVE DEFENSE In the event Plaintiffs executed a settlement agreement releasing and discharging AVON from all claims arising out of Plaintiff’s alleged injury, all claims alleged by Plaintiffs should be dismissed. 6 6 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 SIXTEENTH AFFIRMATIVE DEFENSE Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiffs have given a release or covenant not to sue or not to enforce a judgment to an alleged co- tortfeasor of AVON, Plaintiff’s claims herein are reduced to the extent of any amount stipulated by the release or covenant, in the amount of the consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the damages, whichever is greater. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs were not injured by exposure to any AVON products. EIGHTEENTH AFFIRMATIVE DEFENSE In the event that Plaintiffs were employed by any of the Defendants, Plaintiff’s sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York. NINETEENTH AFFIRMATIVE DEFENSE Insofar as the Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs. TWENTIETH AFFIRMATIVE DEFENSE Insofar as the Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 1975 each such cause of action is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk. 7 7 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 TWENTY-FIRST AFFIRMATIVE DEFENSE To the extent that Plaintiffs were injured as alleged in the Complaint, which AVON denies, said injury was proximately caused by the negligence, breach of warranty and strict liability of persons and entities other than AVON. TWENTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs were injured as alleged in the Complaint, which AVON denies, such injury was the result of intervening and superseding acts or omissions of parties or non-parties over whom AVON had no supervision or control or right to supervise or control. TWENTY-THIRD AFFIRMATIVE DEFENSE At all times relevant hereto, the knowledge of Plaintiff’s employer(s) was superior to that of AVON with respect to possible health hazards associated with Plaintiff’s employment, and, therefore, if there was any duty to warn or provide protection to Plaintiffs, it was the duty of said employer, not of AVON, and breach of that duty was an intervening and superseding cause of the injuries allegedly sustained by Plaintiffs. TWENTY-FOURTH AFFIRMATIVE DEFENSE At all times during the conduct of their corporate operations, the agents, servants and employees of AVON used proper methods in their production activities in conformity to the available knowledge and research of the scientific and industrial communities. TWENTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs sustained injuries from the use of AVON products, which AVON denies, such injuries resulted from the unforeseeable misuse, abuse, alteration, modification, and unauthorized handling of the product by Plaintiffs, or by third-parties, over whom AVON had no control or right to control. 8 8 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs voluntarily assumed the risks associated with the use of or exposure to the products at issue. TWENTY-SEVENTH AFFIRMATIVE DEFENSE AVON had no knowledge or reason to know of any alleged risks associated with finished asbestos-containing products at any time during the purported peril complained of in the Complaint. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs contributed to the injuries alleged by the use of other substances, products, medications and drugs. TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiff’s injuries were caused directly, solely and proximately by sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general public, of which AVON neither knew, had reason to know, nor could have foreseen. THIRTIETH AFFIRMATIVE DEFENSE As to all causes of action pleaded in the Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against AVON as there was no privity of contract between Plaintiffs and AVON. THIRTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs never purchased, directly or indirectly, any asbestos-containing product or materials from AVON, nor did Plaintiffs ever receive or rely upon any representation allegedly made by AVON. 9 9 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs lack capacity and standing to maintain a claim for relief against AVON with respect to injuries alleged to have been suffered by Plaintiffs. THIRTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiffs were exposed to any product manufactured by AVON, which AVON denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have developed, thus requiring dismissal of the Complaint against AVON. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and indispensable parties. THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs are entitled to damages, which AVON denies, AVON is entitled to a set off for all Workers’ Compensation payments received by Plaintiffs. THIRTY-SIXTH AFFIRMATIVE DEFENSE In accordance with CPLR § 1601, AVON’s liability for non-economic loss is limited to its equitable share of the total liability for non-economic loss. THIRTY-SEVENTH AFFIRMATIVE DEFENSE In accordance with CPLR § 4545(c), AVON is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for medical care, custodial care of rehabilitation services, loss of earnings or other economic loss, which has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source. 10 10 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 THIRTY-EIGHTH AFFIRMATIVE DEFENSE At all relevant times, the state of the medical, scientific, and industrial knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-containing products was such that AVON neither knew, had reason to know, nor could have known of any foreseeable or significant risk or harm to Plaintiffs in the normal or expected use of AVON’s products, and, accordingly there was no duty of AVON to warn Plaintiff and that, to the extent such duty arose, adequate warnings were either given or were not necessary under all circumstances. THIRTY-NINTH AFFIRMATIVE DEFENSE Any injuries sustained by Plaintiffs resulted from Plaintiff’s alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than AVON, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that of AVON concerning the properties and characteristics of asbestos and asbestos-containing products. FORTIETH AFFIRMATIVE DEFENSE Any asbestos-containing products allegedly attributable to AVON were supplied according to the purchaser’s or user’s specifications and standards. FORTY-FIRST AFFIRMATIVE DEFENSE AVON was under no legal duty to warn Plaintiffs of any hazards from the use of any asbestos-containing products. The actual purchasers and those under the purchasers’ control, Plaintiff’s employer(s), and the owners and lessors of the properties at which Plaintiffs allege 11 11 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 exposure to such products, were in a far better position to warn Plaintiffs and, if any such warning was legally required, which is expressly denied; their failure to do so was a superseding and proximate cause of Plaintiff’s alleged injuries. FORTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs were reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. FORTY-THIRD AFFIRMATIVE DEFENSE Timely and/or proper notice was not given to AVON as to any alleged breach of warranty. FORTY-FOURTH AFFIRMATIVE DEFENSE To the extent Plaintiff’s claims are based on an alleged breach of warranty, Plaintiffs did not rely on any warranty. FORTY-FIFTH AFFIRMATIVE DEFENSE Any oral warranties upon which Plaintiffs allegedly relied are inadmissible under the Statute of Frauds. FORTY-SIXTH AFFIRMATIVE DEFENSE To the extent that the causes of action pleaded by Plaintiffs fail to accord with the Uniform Commercial Code, including but not limited to Section 2-725 thereof, the Plaintiff’s Complaint and Standard Complaint are time-barred. FORTY-SEVENTH AFFIRMATIVE DEFENSE Any claims by Plaintiffs for exemplary and punitive damages are barred because such damages are not recoverable or warranted. 12 12 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 FORTY-EIGHTH AFFIRMATIVE DEFENSE AVON’s conduct was not reckless, malicious, willful or grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and punitive damages. FORTY-NINTH AFFIRMATIVE DEFENSE Any claim for punitive damages is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, as Article I, Section 6 of the New York State Constitution. FIFTIETH AFFIRMATIVE DEFENSE Any claim for punitive damages is barred by the ex post facto clause of Article I, Section 10 of the United States Constitution. FIFTY-FIRST AFFIRMATIVE DEFENSE Any claim for punitive damages is barred by the proscription of Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessiveness. FIFTY-SECOND AFFIRMATIVE DEFENSE Any claim for punitive damages violates AVON's right to procedural due process as provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New York. FIFTY-THIRD AFFIRMATIVE DEFENSE Any claim for punitive damages violates AVON's right to substantive due process as provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New York. 13 13 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 FIFTY-FOURTH AFFIRMATIVE DEFENSE Punitive or exemplary damages cannot be awarded against AVON for any of the alleged actions or omissions of any of AVON's predecessors because there is not a sufficient degree of identity between this defendant and any of its predecessors to justify such an award. FIFTY-FIFTH AFFIRMATIVE DEFENSE To the extent the law of any other jurisdiction is applicable to this action, any demand for punitive damages is barred by the applicable proscriptions of the constitution of such jurisdiction. FIFTY-SIXTH AFFIRMATIVE DEFENSE AVON denies that Plaintiffs had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce by AVON, and more particularly denies upon information and belief that AVON mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Complaint herein. FIFTY-SEVENTH AFFIRMATIVE DEFENSE AVON denies specifically that, during the periods of exposure alleged in the Complaint by the Plaintiffs, it mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which Plaintiffs were caused to come into contact and which Plaintiffs were caused to breathe, inhale and digest and which thereby caused the Plaintiff’s injuries and resulting in damages alleged in the Complaint herein. 14 14 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 FIFTY-EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in the Complaint herein. FIFTY-NINTH AFFIRMATIVE DEFENSE AVON denies that the asbestos products alleged in Plaintiff’s Complaint are products within the meaning and scope of the Restatement of Torts § 402A, and as such the Complaint fails to state a cause of action in strict liability. SIXTIETH AFFIRMATIVE DEFENSE Defendant has been denied due process in being compelled to proceed to trial on an accelerated basis without opportunity to engage in meaningful discovery and/or to develop its defenses to liability. SIXTY-FIRST AFFIRMATIVE DEFENSE Insofar as Plaintiff’s claims against AVON stem from the alleged misconduct, negligence or other wrongful act or tort of AVON, or any purported corporate predecessor, affiliate or entity related to AVON, Plaintiff’s claims are barred because AVON was not responsible for any such acts and AVON has no successor liability with regard to any such entity/entities. SIXTY-SECOND AFFIRMATIVE DEFENSE All defenses which have been or will be asserted by other Defendants in this action are adopted and incorporated by reference as if fully set forth herein. In addition, AVON will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional affirmative defenses. 15 15 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 SIXTY-THIRD AFFIRMATIVE DEFENSE AVON may have one or more defenses founded upon documentary evidence. SIXTY-FOURTH AFFIRMATIVE DEFENSE The cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy, or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds. SIXTY-FIFTH AFFIRMATIVE DEFENSE The Court may not have jurisdiction in the action, to the extent that service was made under Section 314 or Section 315 of the CPLR. SIXTY-SIXTH AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for AVON with respect to each and every Count contained in Plaintiff’s Complaint. SIXTY-SEVENTH AFFIRMATIVE DEFENSE AVON alleges that any sales of asbestos-containing products made by it were made to sophisticated users of such products, and that sale to a sophisticated user of the products bars any claim of liability against this defendant. SIXTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff’s claim for premises liability is barred because AVON did not exercise control or supervise Plaintiff’s work at any facility. SIXTY-NINTH AFFIRMATIVE DEFENSE To the extent Plaintiffs assert a claim under Sections 240 and/or 241 of the Labor Law, Plaintiff’s claims under Sections 240 and 241 of the Labor Law should be dismissed because 16 16 of 22 4863330 v1 FILED: ERIE COUNTY CLERK 02/18/2021 03:06 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/18/2021 AVON was not an owner, contractor, or agent of an owner or contractor to which Sections 240 and 241 apply. SEVENTIETH AFFIRMATIVE DEFENSE This action is barred under the government contractor's defense theory. SEVENTY-FIRST AFFIRMATIVE DEFENSE Plaintiff’s claims are barred inasmuch as they are preempted by one or more statutes, rules, standards, and/or regulations of the United States Government including, but not limited to, the Hazards Communication Standard, 29 C.F.R. §1910.1200. SEVENTY-SECOND AFFIRMATIVE DEFENSE Plaintiff’s claim for collective liability is barred because all or a substantial share of the market of all potential tortfeasors are not before the Court. SEVENTY-THIRD AFFIRMATIVE DEFENSE