Preview
FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
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:
In Re: 8th Judicial District Asbestos Litigation :
:
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This Document Relates To: :
:
PATSY YOUNG, : Index No.: 815818/2020
:
Plaintiffs, : VERIFIED ANSWER TO
: VERIFIED COMPLAINT
-against :
:
AVENTIS, INC., et al. :
:
Defendants. :
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Defendants BLOCK DRUG COMPANY, INC. incorrectly sued as successor-in-
interest to the Gold Bond Sterilizing Powder Company a/k/a The Gold Bond Company)
and BLOCK DRUG CORPORATION incorrectly sued individually and as successor-in-
interest to The Gold Bond Sterilizing Powder Company a/k/a The Gold Bond Company)
(“Block Drug” or “Defendants”) by their attorneys Harris Beach, PLLC, by way of a Verified
Answer to Plaintiff’s Verified Complaint (the “Complaint”) states as follows:
1. Defendants deny any knowledge or information sufficient to form a belief as to
the allegations contained in paragraphs numbered “1”, “2”, “3”, “4”, “7”, “8”, “9”, “10”, “11”,
“12”, “13”, “14”, “15” “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24” and “25” of the
Verified Complaint.
2. Defendants deny each and every allegation contained in paragraph numbered “2”
of the Verified Complaint and refer all questions of law to this Honorable Court.
3. Defendants deny each and every allegation contained in paragraphs numbered “5”
and “6” of the Verified Complaint except admit that Block Drug Company, Inc. and Block Drug
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Corporation are a foreign limited liability companies with principal places of business located
outside of the State of New York.
4. Defendants deny each and every allegation contained in paragraphs numbered
“26”, “27”, “28”, “29”, “30”, “31” and “32” of the Verified Complaint.
AS AND FOR AN ANSWER TO PLAINTIFF’S FIRST CAUSE OF ACTION
5. Defendants repeat and reiterate each and every answer hereinbefore made with
the same force and effect as though set forth at length in answer to the paragraph numbered “33”
of the Verified Complaint
6. Defendants deny each and every allegation contained in paragraphs numbered
“34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47” and “48” of
the Verified Complaint.
AS AND FOR AN ANSWER TO PLAINTIFF’S SECOND CAUSE OF ACTION
7. Defendants repeat and reiterate each and every answer hereinbefore made with
the same force and effect as though set forth at length in answer to the paragraph numbered “49”
of the Verified Complaint.
8. Defendants deny each and every allegation contained in paragraphs numbered
“50”, “51”, “52” and “53” of the Verified Complaint.
AS AND FOR AN ANSWER TO PLAINTIFF’S THIRD CAUSE OF ACTION
9. Defendants repeat and reiterate each and every answer hereinbefore made with
the same force and effect as though were set forth at length in answer to the paragraph numbered
“54” of the Verified Complaint.
10. Defendants deny each and every allegation contained in paragraph numbered
“55”, “56”, “57”, “58”, “59”, “60”, and “61” of the Verified Complaint.
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AS AND FOR AN ANSWER TO PLAINTIFF’S FOURTH CAUSE OF ACTION
11. Defendants repeat and reiterate each and every answer hereinbefore made with
the same force and effect as though set forth at length in answer to the paragraphs numbered
“62” of the Verified Complaint.
12. Defendants deny each and every allegation contained in paragraphs numbered
“63”, “64” and “65” of the Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
13. The Verified Complaint fails to state a cause of action against Defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
14. This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
15. The claims of plaintiffs are barred by the doctrine of laches.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
16. The damages allegedly sustained by the plaintiff were caused, in whole or in part,
by the negligence or other culpable conduct of the plaintiff and/or Defendants other than Block
Drug, which conduct constituted a supervening cause of plaintiff’s alleged injuries.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
17. Insofar as the Verified Complaint and each cause of action considered separately
alleges a cause of action occurring before 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 the risk.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
18. Any damages allegedly sustained by the plaintiffs were the proximate result of the
unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or
conduct of intervening third parties or superseding parties.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
19. The damages allegedly sustained by the plaintiffs were caused, in whole or in
part, by the negligence or other culpable conduct of one or more persons or instrumentalities
over which Defendants had no control and with whom they had no legal relationship.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
20. The damages allegedly sustained by the plaintiffs were caused, in whole or in
part, through the operation of nature.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
21. If the plaintiff sustained damages as alleged, such damages occurred while he was
engaged in activities into which he entered knowing the hazard, risk and danger of the activities
and he assumed the risks incidental to and attendant to the activities.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
22. The lawsuit was not commenced by the plaintiffs within the time prescribed by
law and therefore, are barred from recovery pursuant to applicable statutes of limitations.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
23. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July
31, 1986) are time-barred in that said statute is in violation of the Constitution of the United
States and the Constitution of the State of New York.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
24. This action cannot be maintained, as there is another action pending for the same
relief.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
25. To the extent that any injury relating to the plaintiff occurred in the context of an
employer-employee relationship, claims for said injuries are barred by the Workers'
Compensation Act.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
26. No acts or omissions of Defendants proximately caused any damages.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
27. Any product of Defendants that may have been present at plaintiff’s job locations
was placed in any such buildings upon specification, approval or at the instruction of
governmental or legislative agencies or bodies.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
28. The damages allegedly sustained by the plaintiffs which allegedly arose from
Plaintiff’s alleged exposure to asbestos-containing products while plaintiff had an association
with the products allegedly manufactured by Defendants were caused, in whole or in part, by the
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improper use and operation of the products, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
of the products by Defendants.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
29. The damages allegedly sustained by the plaintiffs which allegedly arose from the
product or products at issue with respect to Defendants were caused by the alteration, misuse
and/or improper maintenance of the products by one or more persons or instrumentalities other
than Defendants, rather than any defect in the design, manufacture, production, assemblage,
installation, testing, labeling, marketing, distribution, sale or inspection of the product or
products by Defendants.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
30. Defendants are not liable for the damages allegedly sustained by plaintiff because
plaintiff was not in privity of contract with Defendants at any time and the products were not
inherently dangerous.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
31. The product or products were not defective or dangerous at any time when
Defendants had possession or control of it or them.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
32. All implied warranties, including the warranties of merchantability and fitness for
a particular purpose, were excluded at the time of the sale of the product or products.
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AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
33. No implied warranties, including the warranties of merchantability and fitness for
a particular purpose, became a part of the basis of the bargain in the sale of the product or
products.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
34. Defendants are not liable to plaintiff for the damages alleged in the Complaint
because such damages are excluded and not recoverable under express warranty.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
35. The purchaser of the product or products and all beneficiaries of any warranties,
express or implied, relating to the product or products failed to provide notice of the alleged
breaches of warranty to Defendants pursuant to the applicable provision of the Uniform
Commercial Code.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
36. Oral warranties upon which Plaintiff allegedly relied are unavailable as violative
of the provisions of the applicable Statute of Frauds.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
37. To the extent that Plaintiff sustained injuries from the use of a product alleged to
contain asbestos, which is denied, Plaintiff, other defendants or other parties not under the
control of Defendants misused, abused, misapplied and otherwise mishandled the product or
products alleged to be asbestos material. Therefore, the amount of damages which may be
recoverable must be diminished by the proportion which said misuse, abuse, misapplication and
mishandling bears to the conduct which caused the alleged damage or injury.
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AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
38. In the event it should be proven at the time of trial that all the defendants to this
action are subject to market share liability, which Defendants deny is available in this case, then
Defendant’s share of such liability would be of such a de minimis amount as to make its
contribution for damages negligible and Defendants would be entitled to contribution, either in
whole or in part, from co-defendants.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
39. The products alleged in Plaintiffs’ Verified Complaint are not products within the
meaning and scope of the Restatement of Torts Section 402A and as such the Complaint fails to
state a cause of action in strict liability.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
40. Defendants had no knowledge or reason to know of any alleged risks associated
with asbestos and/or asbestos-containing products at any time during the periods complained of.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
41. Plaintiff did not directly or indirectly purchase any asbestos-containing products
or materials from Defendants and Plaintiff did not either receive or rely upon any representation
or warranty allegedly made by Defendants.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
42. To the extent that Plaintiff was exposed to any product containing asbestos as a
result of conduct by Defendants, which is denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which Plaintiff may have
developed, and not actionable at law or equity.
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AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
43. Exposure to asbestos fibers attributable to the product or products, which is
denied, is so minimal as to be insufficient to establish to a reasonable degree of probability that
the product or products are capable of causing injury or damages and must be considered
speculative as a matter of law.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
44. Finished asbestos-containing products are not unreasonably dangerous as a matter
of law.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
45. If Defendants were on notice of any hazard or defect for which Plaintiff seeks
relief, which Defendants deny, Plaintiff also had such notice and is thereby barred from
recovery.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
46. Any damages must be reduced by the value of the benefit received by Plaintiff
and Plaintiff from the use of Defendants’ product or products.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
47. There is no justiciable issue or controversy.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
48. The claims for damages have not accrued and are purely speculative, uncertain
and contingent.
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AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
49. Plaintiff acted voluntarily, unnecessarily, prematurely, with no evidence of injury
to anyone at any job locations.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
50. None of the alleged injuries or damages was foreseeable at the time of the
Complaint or at the time of the acts or omissions in Plaintiff’s Verified Complaint.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
51. Defendants were under no duty to warn purchasers, those who performed work or
those under their control were in a better position to warn.
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
52. Plaintiffs were warned of the risks of exposure to and use of asbestos-containing
materials.
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
53. Plaintiff’s claims are barred as a matter of public policies, since social utility and
benefit of asbestos-containing products outweighed the risk.
AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
54. Whatever damages, if any, which Plaintiff sustained as alleged in the Complaint,
if they were not caused in whole or in part or contributed to by reason of Plaintiff’s culpable
conduct, were caused by reason of culpable conduct on the part of others to whom Plaintiffs have
given a release, and, accordingly, Block Drug is entitled to have the claim of the Plaintiff herein,
if any, reduced in accordance with Section 15-108 of the General Obligations Law.
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AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
55. Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
indispensable parties.
AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
DEFEDANTS ALLEGES UPON INFORMATION AND BELIEF
56. Plaintiff may not bring this action as he has failed to exhaust all of her
administrative remedies.
AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
57. Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged
in the Complaint.
AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
58. Plaintiffs’ demands for exemplary or punitive damages are barred because such
damages are not recoverable or warranted in this action.
AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
‘
59. Plaintiffs’ demands for punitive damages are barred by the due process clauses of
the Fourteenth Amendment to the United States Constitution and the New York State
Constitution.
AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
60. Plaintiffs’ demands for punitive damages are barred by the proscription of the
Eighth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting
the imposition of excessive fines.
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AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
61. Plaintiffs’ demands for punitive damages are barred by the "double jeopardy"
clause of the Fifth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
62. If Plaintiffs sustained injuries in the manner alleged, all of which has been denied
by Defendants, the liability of Defendants, if any, shall be limited in accordance with Article 16
of the Civil Practice Law and Rules.
AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
63. At all times relevant to this litigation, Defendants complied with all applicable
laws, regulations and standards.
AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
64. Relief is barred by virtue of the doctrines of estoppel and waiver.
AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
65. At all times relevant to this litigation, the agents, servants and/or employees of
Defendants utilized proper methods in the conduct of their operations in conformity with the
available knowledge and research of the scientific and industrial communities.
AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
66. Plaintiffs contributed to Plaintiff’s injuries, either in whole or in part, by exposure
to or the use of tobacco products and/or other substances, products, medications or drugs.
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AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
67. Some or all of the causes of action may not be maintained because of arbitration
and award.
AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
68. Some or all of the causes of action may not be maintained because of collateral
estoppel.
AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
69. Some or all of the causes of action may not be maintained because of discharge in
bankruptcy.
AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
70. Some or all of the causes of action may not be maintained because of payment.
AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
71. Some or all of the causes of action may not be maintained because of release.
AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
72. Some or all of the causes of action may not be maintained because of res judicata.
AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
73. All defenses which have been or will be asserted by other defendants and/or any
third-party defendants in this action are adopted and incorporated by reference as if fully set
forth at length as defenses to Plaintiff’s Verified Complaint. In addition, Defendants will rely
upon any and all other and further defenses which become available or appear during discovery
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proceedings in this action and hereby specifically reserve the right to amend their answer for the
purposes of asserting any such additional affirmative defenses.
AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
74. To the extent Plaintiff brings suit in her representative capacity, Plaintiff has
failed to ALLEGE sufficient facts to demonstrate legal capacity to sue pursuant to New York
Estate Powers and Trusts Law §5-1.1 to 5-4.6.
AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
75. Defendants owed no duty to Plaintiffs.
AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
76. Defendants did not voluntarily assume a duty to Plaintiffs
AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
77. Defendants had no duty to control the conduct of third-parties, so as to prevent
those third-parties from harming Plaintiffs.
AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
78. Plaintiff cannot impose a duty upon Defendants based upon a statute, regulation
or other law that does not apply to Defendants.
AS AND FOR AN SEVENTIETH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
79. The injuries suffered by Plaintiffs if any, were proximately caused in whole or in
part by sensitivities and idiosyncrasies peculiar to Plaintiffs not found in the general public.
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AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
80. The injuries suffered by Plaintiffs are due to a pre-existing genetic condition and
were not proximately caused in whole or in part by Defendants.
AS AND FOR AN SEVENTY -SECOND AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
81. This Court lacks personal jurisdiction over Defendants based upon improper
service of the Summons and Complaint.
AS AND FOR AN SEVENTY -THIRD AFFIRMATIVE DEFENSE,
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
82. This Court lacks general and specific personal jurisdiction over Defendants
pursuant to the Supreme Court of the United States decisions in Daimler AG v. Bauman, 571
U.S. 117 (2014) and Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773
(2017), as well as other New York State Law and Federal Law.
AS AND FOR A SEVENTY-FOURTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
83. The injuries suffered by Plaintiff are due to a pre-existing genetic condition and
were not proximately caused by any alleged product or act of Defendants.
AS AND FOR A SEVENTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF
90. Defendants do not have successor liability, and Defendants do not otherwise have
liability for the Alleged Gold Bond product line.
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WHEREFORE, Defendants BLOCK DRUG COMPANY INC. and BLOCK DRUG
CORPORATION request judgment in their favor dismissing Plaintiff’s Verified Complaint
together with such other and further relief as the Court may deem just and proper.
Dated: New York, New York
March 19, 2021
Yours, etc.
HARRIS BEACH PLLC
______________________________
Robert A. Schaefer
Attorneys for Defendants
Block Drug Company, Inc. and
Block Drug Corporation
100 Wall Street, 23rd Floor
New York, New York 10005
(212) 687-0100
To:
John P. Comerford, Esq.
LIPSITZ & PONTERIO, LLP
424 Main Street-Suite 1500
Buffalo, NY 14202
(716) 849-0701 - Phone
Attorneys for Plaintiffs
-and-
Sean Kerley, Esq.
SIMON GREENSTONE PANATIER, PC
1201 Elm Street-Suite 3400
Dallas, TX 75270
(214) 276-7680
Attorneys for Plaintiffs
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ATTORNEY’S VERIFICATION
The undersigned affirms the following statement to be true under penalties of perjury
pursuant to Rule 1206 of the Civil Practice Law and Rules.
That he is an attorney at law and member of the firm of HARRIS BEACH PLLC,
attorneys for the Defendants, BLOCK DRUG COMPANY INC. and BLOCK DRUG
CORPORATION
That he has read the foregoing document and knows the contents thereof and that the
same is true to the knowledge of your affirmant except as to the matters therein alleged upon
information and belief and that as to those matters he believes them to be true.
That the reason why this affirmation is being made by your affirmant and not the
Defendants is that Defendants are not New York Corporations and do not maintain offices with
officers having knowledge of the facts in the county where your affirmant’s firm maintains its
offices.
That the sources of your affirmant’s information, and the grounds of his beliefs as to all
the matters therein Alleged upon information and belief, are from Defendants and based on
communications with Defendants.
Dated: New York, New York
March 19, 2021
_____________________________
Robert A. Schaefer, Jr.
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AFFIRMATION OF SERVICE
I hereby affirm that Defendants BLOCK DRUG COMPANY INC. and BLOCK DRUG
CORPORATION’s Verified Answer to Verified Complaint in the case of Young v. Aventis, Inc.,
et al. (Index No. 815818/2020), filed through the NYSCEF system, will be sent electronically to
the registered participants as identified on the Confirmation Notice and paper copies will be sent
to those indicated as non-registered participants on this 19th day of March, 2021.
________________________________
Robert A. Schaefer, Jr.
HARRIS BEACH PLL
Preview
FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE - --------------------------------------------------------------------X : In Re: 8th Judicial District Asbestos Litigation : : - --------------------------------------------------------------------X This Document Relates To: : : PATSY YOUNG, : Index No.: 815818/2020 : Plaintiffs, : VERIFIED ANSWER TO : VERIFIED COMPLAINT -against : : AVENTIS, INC., et al. : : Defendants. : -- -------------------------------------------------------------------X Defendants BLOCK DRUG COMPANY, INC. incorrectly sued as successor-in- interest to the Gold Bond Sterilizing Powder Company a/k/a The Gold Bond Company) and BLOCK DRUG CORPORATION incorrectly sued individually and as successor-in- interest to The Gold Bond Sterilizing Powder Company a/k/a The Gold Bond Company) (“Block Drug” or “Defendants”) by their attorneys Harris Beach, PLLC, by way of a Verified Answer to Plaintiff’s Verified Complaint (the “Complaint”) states as follows: 1. Defendants deny any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered “1”, “2”, “3”, “4”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15” “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24” and “25” of the Verified Complaint. 2. Defendants deny each and every allegation contained in paragraph numbered “2” of the Verified Complaint and refer all questions of law to this Honorable Court. 3. Defendants deny each and every allegation contained in paragraphs numbered “5” and “6” of the Verified Complaint except admit that Block Drug Company, Inc. and Block Drug 1 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 Corporation are a foreign limited liability companies with principal places of business located outside of the State of New York. 4. Defendants deny each and every allegation contained in paragraphs numbered “26”, “27”, “28”, “29”, “30”, “31” and “32” of the Verified Complaint. AS AND FOR AN ANSWER TO PLAINTIFF’S FIRST CAUSE OF ACTION 5. Defendants repeat and reiterate each and every answer hereinbefore made with the same force and effect as though set forth at length in answer to the paragraph numbered “33” of the Verified Complaint 6. Defendants deny each and every allegation contained in paragraphs numbered “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47” and “48” of the Verified Complaint. AS AND FOR AN ANSWER TO PLAINTIFF’S SECOND CAUSE OF ACTION 7. Defendants repeat and reiterate each and every answer hereinbefore made with the same force and effect as though set forth at length in answer to the paragraph numbered “49” of the Verified Complaint. 8. Defendants deny each and every allegation contained in paragraphs numbered “50”, “51”, “52” and “53” of the Verified Complaint. AS AND FOR AN ANSWER TO PLAINTIFF’S THIRD CAUSE OF ACTION 9. Defendants repeat and reiterate each and every answer hereinbefore made with the same force and effect as though were set forth at length in answer to the paragraph numbered “54” of the Verified Complaint. 10. Defendants deny each and every allegation contained in paragraph numbered “55”, “56”, “57”, “58”, “59”, “60”, and “61” of the Verified Complaint. 2 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR AN ANSWER TO PLAINTIFF’S FOURTH CAUSE OF ACTION 11. Defendants repeat and reiterate each and every answer hereinbefore made with the same force and effect as though set forth at length in answer to the paragraphs numbered “62” of the Verified Complaint. 12. Defendants deny each and every allegation contained in paragraphs numbered “63”, “64” and “65” of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 13. The Verified Complaint fails to state a cause of action against Defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 14. This Court lacks jurisdiction over the subject matter of this action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 15. The claims of plaintiffs are barred by the doctrine of laches. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 16. The damages allegedly sustained by the plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of the plaintiff and/or Defendants other than Block Drug, which conduct constituted a supervening cause of plaintiff’s alleged injuries. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 17. Insofar as the Verified Complaint and each cause of action considered separately alleges a cause of action occurring before 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 the risk. 3 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 18. Any damages allegedly sustained by the plaintiffs were the proximate result of the unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or conduct of intervening third parties or superseding parties. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 19. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which Defendants had no control and with whom they had no legal relationship. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 20. The damages allegedly sustained by the plaintiffs were caused, in whole or in part, through the operation of nature. AS AND FOR A NINTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 21. If the plaintiff sustained damages as alleged, such damages occurred while he was engaged in activities into which he entered knowing the hazard, risk and danger of the activities and he assumed the risks incidental to and attendant to the activities. AS AND FOR A TENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 22. The lawsuit was not commenced by the plaintiffs within the time prescribed by law and therefore, are barred from recovery pursuant to applicable statutes of limitations. 4 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 23. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 24. This action cannot be maintained, as there is another action pending for the same relief. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 25. To the extent that any injury relating to the plaintiff occurred in the context of an employer-employee relationship, claims for said injuries are barred by the Workers' Compensation Act. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 26. No acts or omissions of Defendants proximately caused any damages. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 27. Any product of Defendants that may have been present at plaintiff’s job locations was placed in any such buildings upon specification, approval or at the instruction of governmental or legislative agencies or bodies. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 28. The damages allegedly sustained by the plaintiffs which allegedly arose from Plaintiff’s alleged exposure to asbestos-containing products while plaintiff had an association with the products allegedly manufactured by Defendants were caused, in whole or in part, by the 5 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 improper use and operation of the products, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the products by Defendants. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 29. The damages allegedly sustained by the plaintiffs which allegedly arose from the product or products at issue with respect to Defendants were caused by the alteration, misuse and/or improper maintenance of the products by one or more persons or instrumentalities other than Defendants, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the product or products by Defendants. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 30. Defendants are not liable for the damages allegedly sustained by plaintiff because plaintiff was not in privity of contract with Defendants at any time and the products were not inherently dangerous. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 31. The product or products were not defective or dangerous at any time when Defendants had possession or control of it or them. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 32. All implied warranties, including the warranties of merchantability and fitness for a particular purpose, were excluded at the time of the sale of the product or products. 6 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 33. No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the product or products. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 34. Defendants are not liable to plaintiff for the damages alleged in the Complaint because such damages are excluded and not recoverable under express warranty. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 35. The purchaser of the product or products and all beneficiaries of any warranties, express or implied, relating to the product or products failed to provide notice of the alleged breaches of warranty to Defendants pursuant to the applicable provision of the Uniform Commercial Code. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 36. Oral warranties upon which Plaintiff allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 37. To the extent that Plaintiff sustained injuries from the use of a product alleged to contain asbestos, which is denied, Plaintiff, other defendants or other parties not under the control of Defendants misused, abused, misapplied and otherwise mishandled the product or products alleged to be asbestos material. Therefore, the amount of damages which may be recoverable must be diminished by the proportion which said misuse, abuse, misapplication and mishandling bears to the conduct which caused the alleged damage or injury. 7 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 38. In the event it should be proven at the time of trial that all the defendants to this action are subject to market share liability, which Defendants deny is available in this case, then Defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible and Defendants would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 39. The products alleged in Plaintiffs’ Verified Complaint are not products within the meaning and scope of the Restatement of Torts Section 402A and as such the Complaint fails to state a cause of action in strict liability. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 40. Defendants had no knowledge or reason to know of any alleged risks associated with asbestos and/or asbestos-containing products at any time during the periods complained of. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 41. Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from Defendants and Plaintiff did not either receive or rely upon any representation or warranty allegedly made by Defendants. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 42. To the extent that Plaintiff was exposed to any product containing asbestos as a result of conduct by Defendants, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, and not actionable at law or equity. 8 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 43. Exposure to asbestos fibers attributable to the product or products, which is denied, is so minimal as to be insufficient to establish to a reasonable degree of probability that the product or products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 44. Finished asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 45. If Defendants were on notice of any hazard or defect for which Plaintiff seeks relief, which Defendants deny, Plaintiff also had such notice and is thereby barred from recovery. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 46. Any damages must be reduced by the value of the benefit received by Plaintiff and Plaintiff from the use of Defendants’ product or products. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 47. There is no justiciable issue or controversy. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 48. The claims for damages have not accrued and are purely speculative, uncertain and contingent. 9 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 49. Plaintiff acted voluntarily, unnecessarily, prematurely, with no evidence of injury to anyone at any job locations. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 50. None of the alleged injuries or damages was foreseeable at the time of the Complaint or at the time of the acts or omissions in Plaintiff’s Verified Complaint. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 51. Defendants were under no duty to warn purchasers, those who performed work or those under their control were in a better position to warn. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 52. Plaintiffs were warned of the risks of exposure to and use of asbestos-containing materials. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 53. Plaintiff’s claims are barred as a matter of public policies, since social utility and benefit of asbestos-containing products outweighed the risk. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 54. Whatever damages, if any, which Plaintiff sustained as alleged in the Complaint, if they were not caused in whole or in part or contributed to by reason of Plaintiff’s culpable conduct, were caused by reason of culpable conduct on the part of others to whom Plaintiffs have given a release, and, accordingly, Block Drug is entitled to have the claim of the Plaintiff herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law. 10 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 55. Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable parties. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE DEFEDANTS ALLEGES UPON INFORMATION AND BELIEF 56. Plaintiff may not bring this action as he has failed to exhaust all of her administrative remedies. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 57. Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Complaint. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 58. Plaintiffs’ demands for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF ‘ 59. Plaintiffs’ demands for punitive damages are barred by the due process clauses of the Fourteenth Amendment to the United States Constitution and the New York State Constitution. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 60. Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. 11 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 61. Plaintiffs’ demands for punitive damages are barred by the "double jeopardy" clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 62. If Plaintiffs sustained injuries in the manner alleged, all of which has been denied by Defendants, the liability of Defendants, if any, shall be limited in accordance with Article 16 of the Civil Practice Law and Rules. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 63. At all times relevant to this litigation, Defendants complied with all applicable laws, regulations and standards. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 64. Relief is barred by virtue of the doctrines of estoppel and waiver. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 65. At all times relevant to this litigation, the agents, servants and/or employees of Defendants utilized proper methods in the conduct of their operations in conformity with the available knowledge and research of the scientific and industrial communities. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 66. Plaintiffs contributed to Plaintiff’s injuries, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. 12 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 67. Some or all of the causes of action may not be maintained because of arbitration and award. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 68. Some or all of the causes of action may not be maintained because of collateral estoppel. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 69. Some or all of the causes of action may not be maintained because of discharge in bankruptcy. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 70. Some or all of the causes of action may not be maintained because of payment. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 71. Some or all of the causes of action may not be maintained because of release. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 72. Some or all of the causes of action may not be maintained because of res judicata. AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 73. All defenses which have been or will be asserted by other defendants and/or any third-party defendants in this action are adopted and incorporated by reference as if fully set forth at length as defenses to Plaintiff’s Verified Complaint. In addition, Defendants will rely upon any and all other and further defenses which become available or appear during discovery 13 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 proceedings in this action and hereby specifically reserve the right to amend their answer for the purposes of asserting any such additional affirmative defenses. AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 74. To the extent Plaintiff brings suit in her representative capacity, Plaintiff has failed to ALLEGE sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law §5-1.1 to 5-4.6. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 75. Defendants owed no duty to Plaintiffs. AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 76. Defendants did not voluntarily assume a duty to Plaintiffs AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 77. Defendants had no duty to control the conduct of third-parties, so as to prevent those third-parties from harming Plaintiffs. AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 78. Plaintiff cannot impose a duty upon Defendants based upon a statute, regulation or other law that does not apply to Defendants. AS AND FOR AN SEVENTIETH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 79. The injuries suffered by Plaintiffs if any, were proximately caused in whole or in part by sensitivities and idiosyncrasies peculiar to Plaintiffs not found in the general public. 14 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 80. The injuries suffered by Plaintiffs are due to a pre-existing genetic condition and were not proximately caused in whole or in part by Defendants. AS AND FOR AN SEVENTY -SECOND AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 81. This Court lacks personal jurisdiction over Defendants based upon improper service of the Summons and Complaint. AS AND FOR AN SEVENTY -THIRD AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 82. This Court lacks general and specific personal jurisdiction over Defendants pursuant to the Supreme Court of the United States decisions in Daimler AG v. Bauman, 571 U.S. 117 (2014) and Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), as well as other New York State Law and Federal Law. AS AND FOR A SEVENTY-FOURTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 83. The injuries suffered by Plaintiff are due to a pre-existing genetic condition and were not proximately caused by any alleged product or act of Defendants. AS AND FOR A SEVENTY-FIFTH AFFIRMATIVE DEFENSE DEFENDANTS ALLEGES UPON INFORMATION AND BELIEF 90. Defendants do not have successor liability, and Defendants do not otherwise have liability for the Alleged Gold Bond product line. 15 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 WHEREFORE, Defendants BLOCK DRUG COMPANY INC. and BLOCK DRUG CORPORATION request judgment in their favor dismissing Plaintiff’s Verified Complaint together with such other and further relief as the Court may deem just and proper. Dated: New York, New York March 19, 2021 Yours, etc. HARRIS BEACH PLLC ______________________________ Robert A. Schaefer Attorneys for Defendants Block Drug Company, Inc. and Block Drug Corporation 100 Wall Street, 23rd Floor New York, New York 10005 (212) 687-0100 To: John P. Comerford, Esq. LIPSITZ & PONTERIO, LLP 424 Main Street-Suite 1500 Buffalo, NY 14202 (716) 849-0701 - Phone Attorneys for Plaintiffs -and- Sean Kerley, Esq. SIMON GREENSTONE PANATIER, PC 1201 Elm Street-Suite 3400 Dallas, TX 75270 (214) 276-7680 Attorneys for Plaintiffs 16 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 ATTORNEY’S VERIFICATION The undersigned affirms the following statement to be true under penalties of perjury pursuant to Rule 1206 of the Civil Practice Law and Rules. That he is an attorney at law and member of the firm of HARRIS BEACH PLLC, attorneys for the Defendants, BLOCK DRUG COMPANY INC. and BLOCK DRUG CORPORATION That he has read the foregoing document and knows the contents thereof and that the same is true to the knowledge of your affirmant except as to the matters therein alleged upon information and belief and that as to those matters he believes them to be true. That the reason why this affirmation is being made by your affirmant and not the Defendants is that Defendants are not New York Corporations and do not maintain offices with officers having knowledge of the facts in the county where your affirmant’s firm maintains its offices. That the sources of your affirmant’s information, and the grounds of his beliefs as to all the matters therein Alleged upon information and belief, are from Defendants and based on communications with Defendants. Dated: New York, New York March 19, 2021 _____________________________ Robert A. Schaefer, Jr. 17 of 19 FILED: ERIE COUNTY CLERK 03/19/2021 10:21 AM INDEX NO. 815818/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/19/2021 AFFIRMATION OF SERVICE I hereby affirm that Defendants BLOCK DRUG COMPANY INC. and BLOCK DRUG CORPORATION’s Verified Answer to Verified Complaint in the case of Young v. Aventis, Inc., et al. (Index No. 815818/2020), filed through the NYSCEF system, will be sent electronically to the registered participants as identified on the Confirmation Notice and paper copies will be sent to those indicated as non-registered participants on this 19th day of March, 2021. ________________________________ Robert A. Schaefer, Jr. HARRIS BEACH PLL