On June 09, 2021 a
Answer
was filed
involving a dispute between
Paula A. Karnisky His Spouse,
Paula A. Karnisky
His Spouse,
Robert A. Karnisky,
and
Air & Liquid Systems Corporation As Successor By Merger To Buffalo Pumps, Inc.,
Air & Liquid Systems Corporation
As Successor By Merger To Buffalo Pumps, Inc.,
Alray Construction Corp. F K A Hebert Construction Corp.,
Alray Construction Corp.
F K A Hebert Construction Corp.,
Armstrong International, Inc.,
Armstrong Pumps Inc.,
Aurora Pump Company,
Cleaver-Brooks, Inc. F K A Aqua-Chem, Inc.,
Cleaver-Brooks, Inc.
F K A Aqua-Chem, Inc.,
Clyde Union Inc. F K A Union Pump Company,
Clyde Union Inc.
F K A Union Pump Company,
Crane Co.,
Elmer W. Davis Inc.,
Flowserve Corporation F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Corporation
F K A The Duriron Company, Inc. Sued As Successor By Merger To Durco International,
Flowserve Us, Inc. Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Flowserve Us, Inc.
Solely As Successor To Rockwell Manufacturing Company Edward Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation Individually And As Successor To Northern Pump Company And Coffin,
Fmc Corporation
Individually And As Successor To Northern Pump Company And Coffin,
Foster Wheeler Llc,
Frontier Insulation Contractors, Inc. F K A Frontier Insulation And Asbestos, Inc.,
Frontier Insulation Contractors, Inc.
F K A Frontier Insulation And Asbestos, Inc.,
Gardner Denver, Inc.,
General Electric Company,
Goulds Pumps, Incorporated F K A Goulds Pumps Merger Corporation,
Goulds Pumps, Incorporated
F K A Goulds Pumps Merger Corporation,
Grinnell Llc,
Honeywell International Inc. F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Honeywell International Inc.
F K A Alliedsignal, Inc. And As Successor In Interest To The Bendix Corporation,
Imo Industries Inc. Individually And As Successor In Interest To Imo Delaval,
Imo Industries Inc.
Individually And As Successor In Interest To Imo Delaval,
Industrial Insulation Sales, Inc.,
Insulation Distributors, Inc.,
Itt Corporation F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Itt Corporation
F K A Itt Industries, Inc. Individually And As Successor To Itt Fluid Products Corp. Itt Hoffman Itt Bell & Gossett Company And Itt Marlow,
Mader Capital, Inc.,
Mader Plastering Corp.,
Met-Pro Technologies Llc A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Met-Pro Technologies Llc
A Ceco Environmental Company Successor By Merger To Met-Pro Corporation On Behalf Of Its Dean Pump Division,
Neles-Jamesbury, Inc,
Pfaudler, Inc.,
R.E. Hebert And Company, Inc.,
Riley Power Inc. F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Riley Power Inc.
F K A Babcock Borsig Power, Inc. F K A Db Riley, Inc. F K A Riley Stoker Corporation,
Rochester Acoustical Corp.,
Rochester Industrial Insulation, Inc.,
Spirax Sarco, Inc. Individually And As Successor To Sarco Company, Inc.,
Spirax Sarco, Inc.
Individually And As Successor To Sarco Company, Inc.,
Spx Cooling Technologies, Inc. F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
Spx Cooling Technologies, Inc.
F K A Marley Cooling Technologies, Inc. F K A The Marley Cooling Tower Company,
The Mader Corporation,
The Marley-Wylain Company F K A Weil-Mclain,
The Marley-Wylain Company
F K A Weil-Mclain,
The William Powell Company,
Union Carbide Corporation,
Velan Valve Corp.,
Viacomcbs, Inc.,
Warren Pumps Llc,
Watts Water Technologies, Inc
F K A Watts Industries, Inc, Individually And As Successor To Mueller Steam Specialty Company,
Weir Valves & Controls Usa, Inc. D B A Atwood & Morrill Co., Inc.,
Weir Valves & Controls Usa, Inc.
D B A Atwood & Morrill Co., Inc.,
William Summerhays' Sons Corporation,
Zurn Industries, Llc Individually And As Successor In Interest To Erie City Iron Workers Corporation,
Zurn Industries, Llc
Individually And As Successor In Interest To Erie City Iron Workers Corporation,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM INDEX NO. E2021005118
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2833592
Book Page CIVIL
Return To: No. Pages: 20
CHRISTOPHER PATRICK HANNAN
120 WALL ST FL 21ST Instrument: ANSWER
NEW YORK, NY 10005
Control #: 202109080092
Index #: E2021005118
Date: 09/08/2021
Karnisky, Robert A. Time: 9:38:47 AM
Karnisky, Paula A.
Air & Liquid Systems Corporation
Alray Construction Corp.
Armstrong International, Inc.
Armstrong Pumps Inc.
Aurora Pump Company
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
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ROBERT A. KARNISKY and PAULA A. KARNISKY,
His spouse, Index No.: E2021005118
Plaintiffs,
-against- VERIFIED ANSWER,
AFFIRMATIVE DEFENSES
AND CROSS-CLAIMS
AIR & LIQUID SYSTEMS CORP, et al. OF DEFENDANT FMC
CORPORATION
Defendants.
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Defendant, FMC Corporation, on behalf of its former Coffin and Northern Pump
Businesses (hereinafter “FMC”), by its attorneys, Kelley Jasons, McGowan, Spinelli Hanna &
Reber, LLP, hereby answers Plaintiffs’ Complaint (hereinafter “Complaint”) as follows:
1. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 1 of the Complaint as they pertain to parties other than FMC and
refers all questions of law to the Court.
ARTICLE 16 ALLEGATIONS
2. FMC denies the allegations in paragraph 2 of the Complaint as they pertain to
FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as
they pertain to parties other than FMC and refers all questions of law to the Court.
DEFENDANT ALLEGATIONS
3. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraphs 3 through 13 of the Complaint as they pertain to parties other than
FMC and refers all questions of law to the Court.
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4. In response to the allegations contained in paragraph 14 of the Complaint, FMC
admits only that it is a Delaware corporation. FMC denies the remaining allegations in paragraph
14 of the Complaint and refers all questions of law to the Court.
5. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraphs 15 through 45 of the Complaint as they pertain to parties other than
FMC and refers all questions of law to the Court.
ALLEGATIONS OF FACT
6. FMC denies the allegations in paragraphs 46 through 51 of the Complaint as they
pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of
allegations as they pertain to parties other than FMC and refers all questions of law to the Court.
AS AND FOR A FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN
AGAIST THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, ROBERT A.
KARNISKY, ALLEGES:
7. In response to paragraph 52 of the Complaint, FMC repeats, reiterates and
realleges its responses to paragraphs 1 through 51, as if fully set forth herein.
8. FMC denies the allegations in paragraphs 53 through 64 of the Complaint as they
pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of
allegations as they pertain to parties other than FMC and refers all questions of law to the Court.
9. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 65 of the Complaint as they pertain to parties other than FMC and
refers all questions of law to the Court.
10. FMC denies the allegations in paragraphs 66 through 67 of the Complaint as they
pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of
allegations as they pertain to parties other than FMC and refers all questions of law to the Court.
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AS AND FOR A SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY
AGAINST THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, ROBERT A.
KARINSKY, ALLEGES:
11. In response to paragraph 68 of the Complaint, FMC repeats, reiterates and
realleges its responses to paragraphs 1 through 67, as if fully set forth herein.
12. FMC denies the allegations in paragraphs 69 through 73 of the Complaint as they
pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of
allegations as they pertain to parties other than FMC and refers all questions of law to the Court.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANT, FRONTIER
INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND
ASBESTOS, INC., THE PLAINTIFF, ROBERT A. KARINSKY, ALLEGES:
13. In response to paragraph 74 of the Complaint, FMC repeats, reiterates and
realleges its responses to paragraphs 1 through 73, as if fully set forth herein.
14. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraphs 75 through 79 of the Complaint as they pertain to parties other than
FMC and refers all questions of law to the Court.
AS AND FOR A FOURTH CAUSE OF ACTION FOR NEGLIGENT CONTRACTIING
ACTIVITIES AGAINST DEFENDANTS, ALRAY CONSTRUCTION CORP. f/k/a
HEBERT CONSTRUCTION CORP., ELMER W. DAVIS, INC., FRONTIER
INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND
ASBESTSOS, INC., INDUSTRIAL INSULATION SALES, INC., INSULATION
DISTRIBUTORS, INC., MADER CAPITAL, INC, MADER PLASTERING CORP., R.E.
HEBERT AND COMPANY, INC., ROCHESTER ACOUSTICAL, INC., THE MADER
CORPORATION AND WILLIAM SUMMERHAYS’ SONS CORPORATION, THE
PLAINTIFF, ROBERT A. KARINSKY, ALLEGES:
15. In response to paragraph 80 of the Complaint, FMC repeats, reiterates and
realleges its responses to paragraphs 1 through 79, as if fully set forth herein.
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16. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraphs 81 through 105 of the Complaint as they pertain to parties other
than FMC and refers all questions of law to the Court.
AS AND FOR A FIFTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM AGAINST
THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, PAUL A. KARNISKY,
ALLEGES:
17. In response to paragraph 106 of the Complaint, FMC repeats, reiterates and
realleges its responses to paragraphs 1 through 105, as if fully set forth herein.
18. FMC denies knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 107 of the Complaint as they pertain to parties other than FMC and
refers all questions of law to the Court.
19. FMC denies the allegations in paragraph 108 of the Complaint as they pertain to
FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as
they pertain to parties other than FMC and refers all questions of law to the Court.
AFFIRMATIVE DEFENSES
AS AND FOR A
FIRST AFFIRMATIVE DEFENSE
1. All claims are time-barred by the applicable statute of limitations.
AS AND FOR A
SECOND AFFIRMATIVE DEFENSE
2. All causes of action have not been maintained in a timely fashion and Plaintiff has
neglected the same and should be barred by the doctrine of laches.
AS AND FOR A
THIRD AFFIRMATIVE DEFENSE
3. The Court lacks jurisdiction over the subject matter of this action.
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AS AND FOR A
FOURTH AFFIRMATIVE DEFENSE
4. The Complaint, and each and every allegation considered separately, fails to state
any cause of action against FMC upon which relief can be granted.
AS AND FOR A
FIFTH AFFIRMATIVE DEFENSE
5. Since Plaintiff is unable to identify the manufacturers of the substance, product or
equipment which allegedly caused injury to them, Plaintiff fails to state a claim upon which
relief may be granted, since if such relief were granted, it would deprive FMC of its
constitutional rights to substantive and procedural due process of law and equal protection under
the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States.
AS AND FOR A
SIXTH AFFIRMATIVE DEFENSE
6. In the event that plaintiff was employed by FMC, which is denied, plaintiff’s sole
and exclusive remedy is under the Worker’s Compensation Law of the State of New York.
AS AND FOR A
SEVENTH AFFIRMATIVE DEFENSE
7. To the extent to which Plaintiff seeks punitive damages against FMC, these
damages are improper, unwarranted, not authorized by law and are unconstitutional in the
context of this litigation. The imposition of punitive damages violates the due process, contract,
excessive fines and “double jeopardy” clauses of the Constitution of the United States and
Article 1, Section 6 of the New York State Constitution.
AS AND FOR A
EIGHTH AFFIRMATIVE DEFENSE
8. Upon information and belief, FMC conformed to the scientific knowledge and
data available to the industry and fulfilled its obligations, if any, and its activities and
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undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or
wantonness, and Plaintiff may not recover herein any exemplary or punitive damages against
FMC.
AS AND FOR A
NINTH AFFIRMATIVE DEFENSE
9. Plaintiff was aware of the facts, circumstances and conditions existing at the time
and place set forth in the Complaint and voluntarily assumed all risk arising therefrom.
AS AND FOR A
TENTH AFFIRMATIVE DEFENSE
10. FMC reserves the right to move at any time prior to the trial date of the above
matter to dismiss the Complaint on the following grounds: (a) the court lacks jurisdiction over
the subject matter; (b) the court lacks personal jurisdiction over FMC; (c) the Complaint fails to
state a claim upon which relief can be granted.
AS AND FOR A
ELEVENTH AFFIRMATIVE DEFENSE
11. FMC is not a proper party defendant.
AS AND FOR A
TWELFTH AFFIRMATIVE DEFENSE
12. Insofar as the Complaint and each cause of action considered separately allege a
cause of action accruing before September 1, 1975, each such cause of action is barred by reason
of the culpable conduct attributable to plaintiff, including contributory negligence and
assumption of the risk.
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AS AND FOR A
THIRTEENTH AFFIRMATIVE DEFENSE
13. If Plaintiff should prove that injuries were sustained as alleged, such injuries and
damages resulted from acts or omissions on the part of third parties over whom FMC had neither
control nor right of control.
AS AND FOR A
FOURTEENTH AFFIRMATIVE DEFENSE
14. While FMC denies the allegations of Plaintiff with respect to liability, injury and
damages, to the extent to which Plaintiff may be able to prove the same, they were the result of
intervening an/or interceding acts of superseding negligence on the part of third parties over
whom FMC had neither control nor right of control.
AS AND FOR A
FIFTEENTH AFFIRMATIVE DEFENSE
15. While denying Plaintiff’s allegations with respect to liability, to the extent that
negligence or improper conduct may be proved, the acts of FMC are not a proximate cause of
any injuries to Plaintiff.
AS AND FOR A
SIXTEENTH AFFIRMATIVE DEFENSE
16. At all times during the conduct of their corporate operations, the agents, servants
and/or employees of FMC complied with all applicable law, regulations, standards and the
available knowledge and technology of the medical, scientific and industrial communities.
AS AND FOR A
SEVENTEENTH AFFIRMATIVE DEFENSE
17. If it should be proven at the time of trial that any products sold by FMC were
furnished to Plaintiff’s employers or to the United States Government and that Plaintiff came
into contact with these products, which is specifically denied, then any such product was
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furnished in strict conformity to the conditions specified or to the specifications furnished by
Plaintiff’s employers and/or the United States Government.
AS AND FOR A
EIGHTEENTH AFFIRMATIVE DEFENSE
18. Plaintiff, his coworkers and employers, misused, abused, mistreated and
misapplied the products designated as asbestos material as alleged in the Complaint.
AS AND FOR A
NINETEENTH AFFIRMATIVE DEFENSE
19. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of
the products caused and/or contributed to the alleged damages or injuries to Plaintiff, FMC
requests that the amount of damages which might be recovered shall be diminished by the
proportion which the same misuse, abuse, mistreatment and/or misapplication attributed to the
Plaintiff, his coworkers and/or employers bears to the conduct which caused the alleged injuries
or damages.
AS AND FOR A
TWENTIETH AFFIRMATIVE DEFENSE
20. FMC neither gave, made nor otherwise extended any warranties, whether express
or implied, upon which Plaintiff had a right to rely.
AS AND FOR A
TWENTY-FIRST AFFIRMATIVE DEFENSE
21. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
unavailable because of the provision of the applicable Statute of Frauds.
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AS AND FOR A
TWENTY-SECOND AFFIRMATIVE DEFENSE
22. As to all the causes of action pleaded in the Complaint which may be based upon
express or implied warranties and/or representations, such causes of action are legally
insufficient, as against FMC, by reason of Plaintiff’s failure to allege privity of contract between
the Plaintiff and FMC, which is specifically denied.
AS AND FOR A
TWENTY-THIRD AFFIRMATIVE DEFENSE
23. In the event that any breach of express or implied warranty is proven, Plaintiff
failed to give proper and prompt notice of any such breach of warranty to FMC.
AS AND FOR A
TWENTY-FOURTH AFFIRMATIVE DEFENSE
24. Plaintiff did not directly or indirectly purchase any asbestos-containing products
from FMC, and Plaintiff neither received nor relied upon any warranty or representation that
may be alleged to have been made by FMC.
AS AND FOR A
TWENTY-FIFTH AFFIRMATIVE DEFENSE
25. To the extent to which the causes of action pleaded by Plaintiff fail to accord with
the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, Plaintiff’s
Complaint and Complaint are time-barred.
AS AND FOR A
TWENTY-SIXTH AFFIRMATIVE DEFENSE
26. FMC denies that Plaintiff had any exposure to any asbestos-containing product
allegedly processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold and/or otherwise placed in the stream of commerce by FMC, and more
particularly, denies, upon information and belief that FMC processed, manufactured, supplied,
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developed, tested, fashioned, packaged, distributed, sold and/or otherwise placed in the stream of
commerce any asbestos-containing product at the times and upon the dates alleged in the
Complaint.
AS AND FOR A
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27. FMC denies specifically that, during periods of exposure alleged in the Complaint
by the Plaintiff, it processed, manufactured, designed, 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-containing products to which Plaintiff was
caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and
which thereby caused the Plaintiff’s injuries and resulting damages alleged in the Complaint.
AS AND FOR A
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
28. FMC purchased or obtained a product from a reputable manufacturer, and any
defect therein was latent and not ascertainable by or upon a reasonable inspection.
AS AND FOR A
TWENTY-NINTH AFFIRMATIVE DEFENSE
29. In the event plaintiff recovers a verdict or judgment against FMC, then aid verdict
or judgment must be reduced pursuant to CPLR 4545 (c) by those amounts which have been, or
will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or
future claimed economic loss from any collateral source such as insurance, social security,
workers compensation or employee benefit programs.
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AS AND FOR A
THIRTIETH AFFIRMATIVE DEFENSE
30. FMC specifically 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 fail to state a cause of action in strict liability.
AS AND FOR A
THIRTY FIRST AFFIRMATIVE DEFENSE
31. The doctrine of strict liability is inapplicable to this litigation.
AS AND FOR A
THIRTY-SECOND AFFIRMATIVE DEFENSE
32. Plaintiff contributed to his illness by the use, either in whole or in part, of other
substances, products, medications and/or drugs.
AS AND FOR A
THIRTY-THIRD AFFIRMATIVE DEFENSE
33. The employers of Plaintiff were sophisticated purchasers upon whom devolved all
responsibility for the use of the products referred to in Plaintiff’s Complaint.
AS AND FOR A
THIRTY-FOURTH AFFIRMATIVE DEFENSE
34. At all times material hereto, the state of the medical, industrial, and scientific arts,
knowledge and technology was that there was no generally accepted or recognized knowledge of
any unavoidable unsafe, inherently dangerous, hazardous or defective character or nature of
asbestos-containing products when used in the manner and for the purposes intended, so that
there was no duty to warn by FMC to know of such character or nature or to warn Plaintiff or
others similarly situated, and that, to the extent such duty arose, adequate warning either were
given or were not necessary under all circumstances.
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AS AND FOR A
THIRTY-FIFTH AFFIRMATIVE DEFENSE
35. 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 for at length herein as defenses to
Plaintiff’s Complaint.
AS AND FOR A
THIRTY-SIXTH AFFIRMATIVE DEFENSE
36. FMC reserves the right to amend this pleading to assert additional defense upon
discovery of the specific facts upon which Plaintiff bases his claims for relief, and upon
completion of further discovery.
AS AND FOR A
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
37. Plaintiff’s exclusive remedies are under the applicable federal workers’
compensation laws, including the Federal Employment Liability Act.
AS AND FOR A
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
38. FMC hereby invokes the provisions of Article 16 of the New York CPLR and
requests that the jury herein be charged accordingly.
AS AND FOR A
THIRTY-NINTH AFFIRMATIVE DEFENSE
39. FMC complied with the state of the art and is, therefore, immune from suit.
AS AND FOR A
FORTIETH AFFIRMATIVE DEFENSE
40. Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and
indispensable parties.
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AS AND FOR A
FORTY-FIRST AFFIRMATIVE DEFENSE
41. Plaintiff’s claims should be dismissed on grounds of improper venue and/or forum
non conveniens.
AS AND FOR A
FORTY-SECOND AFFIRMATIVE DEFENSE
42. Plaintiff’s claims should be dismissed on grounds of improper service of process.
AS AND FOR A
FORTY-THIRD AFFIRMATIVE DEFENSE
43. FMC reserves the right to move for a severance of the various allegations in the
Plaintiff’s Complaint.
AS AND FOR A
FORTY-FOURTH AFFIRMATIVE DEFENSE
44. Plaintiff’s employer and employers of others are primarily, solely and exclusively
liable for the within claims.
AS AND FOR A
FORTY-FIFTH AFFIRMATIVE DEFENSE
45. Any asbestos-containing products which FMC may have supplied were de
minimus in light of the total sales by all sources and, therefore, plaintiff fails to state a claim
against FMC.
AS AND FOR A
FORTY-SIXTH AFFIRMATIVE DEFENSE
46. FMC 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.
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AS AND FOR A
FORTY-SEVENTH AFFIRMATIVE DEFENSE
47. Exposure to asbestos allegedly attributable to FMC is so minimal so as to be
insufficient to establish a reasonable degree of probability that the products are capable of
causing injury or damages and must be considered speculative as a matter of law.
AS AND FOR A
FORTY-EIGHTH AFFIRMATIVE DEFENSE
48. To the extent any plaintiff herein brings suit in a representative capacity, such
plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New
York Estate Powers and Trusts Law § 5-41.
AS AND FOR A
FORTY-NINTH AFFIRMATIVE DEFENSE
49. The purported service upon FMC in this action was not proper, and as a result,
this Court lacks personal jurisdiction over FMC.
AS AND FOR A
FIFTIETH AFFIRMATIVE DEFENSE
50. Upon information and belief, any alleged injuries were caused by a pre-existing or
unrelated medical condition, disease or illness of the plaintiff.
AS AND FOR A
FIFTY-FIRST AFFIRMATIVE DEFENSE
51. Plaintiff’s claims are barred by the doctrines of waiver and/or estoppel.
AS AND FOR A
FIFTY-SECOND AFFIRMATIVE DEFENSE
52. FMC had no legal duty of care to plaintiff.
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AS AND FOR A
FIFTY-THIRD AFFIRMATIVE DEFENSE
53. Plaintiff’s claims are barred, in whole or in part, to the extent that the plaintiff
failed to mitigate damages.
AS AND FOR A
FIFTY-FOURTH AFFIRMATIVE DEFENSE
54. In the event that plaintiff recovers a verdict or judgment against FMC, then said
verdict or judgment must be reduced by those amounts which have been paid or indemnified or
will, with reasonable certainty, be paid or indemnified to any plaintiff, in whole or in part, for
any past or future claimed economic loss, from any collateral source including insurance, social
security, workers compensation or employees benefit programs.
AS AND FOR A
FIFTY-FIFTH AFFIRMATIVE DEFENSE
55. Plaintiff has improperly joined claims of multiple parties in violation of Article 6
and 10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must
be severed and tried separately.
AS AND FOR A
FIFTY-SIXTH AFFIRMATIVE DEFENSE
56. Finished asbestos-containing products are not unreasonably dangerous as a matter
of law.
AS AND FOR A
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
57. None of the alleged injuries or damages were foreseeable at the time of the
Verified Complaint of acts or omissions in plaintiff’s Verified Complaint.
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202109080092 IndexNO.
INDEX #: E2021005118
E2021005118
FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021
AS AND FOR A
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
58. Plaintiff was warned of risk of exposure to use of asbestos-containing materials.
AS AND FOR A
FIFTY-NINTH AFFIRMATIVE DEFENSE
59. The damages allegedly sustained by the plaintiff were caused, in whole or in part,
through the operation of nature.
AS AND FOR A
SIXTIETH AFFIRMATIVE DEFENSE
60. Insofar as plaintiff’s Complaint is premised upon any claims accruing on or after
September 1, 1975, to recover damages for personal injuries, the amount of damages recoverable
thereon must be
Preview
FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM INDEX NO. E2021005118 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2833592 Book Page CIVIL Return To: No. Pages: 20 CHRISTOPHER PATRICK HANNAN 120 WALL ST FL 21ST Instrument: ANSWER NEW YORK, NY 10005 Control #: 202109080092 Index #: E2021005118 Date: 09/08/2021 Karnisky, Robert A. Time: 9:38:47 AM Karnisky, Paula A. Air & Liquid Systems Corporation Alray Construction Corp. Armstrong International, Inc. Armstrong Pumps Inc. Aurora Pump Company Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 20 202109080092 Index # INDEX : E2021005118 NO. E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE -----------------------------------------------------------------------x ROBERT A. KARNISKY and PAULA A. KARNISKY, His spouse, Index No.: E2021005118 Plaintiffs, -against- VERIFIED ANSWER, AFFIRMATIVE DEFENSES AND CROSS-CLAIMS AIR & LIQUID SYSTEMS CORP, et al. OF DEFENDANT FMC CORPORATION Defendants. ---------------------------------------------------------------------x Defendant, FMC Corporation, on behalf of its former Coffin and Northern Pump Businesses (hereinafter “FMC”), by its attorneys, Kelley Jasons, McGowan, Spinelli Hanna & Reber, LLP, hereby answers Plaintiffs’ Complaint (hereinafter “Complaint”) as follows: 1. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 1 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. ARTICLE 16 ALLEGATIONS 2. FMC denies the allegations in paragraph 2 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. DEFENDANT ALLEGATIONS 3. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 3 through 13 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. 2 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 4. In response to the allegations contained in paragraph 14 of the Complaint, FMC admits only that it is a Delaware corporation. FMC denies the remaining allegations in paragraph 14 of the Complaint and refers all questions of law to the Court. 5. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 15 through 45 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. ALLEGATIONS OF FACT 6. FMC denies the allegations in paragraphs 46 through 51 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. AS AND FOR A FIRST CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN AGAIST THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, ROBERT A. KARNISKY, ALLEGES: 7. In response to paragraph 52 of the Complaint, FMC repeats, reiterates and realleges its responses to paragraphs 1 through 51, as if fully set forth herein. 8. FMC denies the allegations in paragraphs 53 through 64 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. 9. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 65 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. 10. FMC denies the allegations in paragraphs 66 through 67 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. 3 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A SECOND CAUSE OF ACTION FOR STRICT PRODUCTS LIABILITY AGAINST THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, ROBERT A. KARINSKY, ALLEGES: 11. In response to paragraph 68 of the Complaint, FMC repeats, reiterates and realleges its responses to paragraphs 1 through 67, as if fully set forth herein. 12. FMC denies the allegations in paragraphs 69 through 73 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANT, FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBESTOS, INC., THE PLAINTIFF, ROBERT A. KARINSKY, ALLEGES: 13. In response to paragraph 74 of the Complaint, FMC repeats, reiterates and realleges its responses to paragraphs 1 through 73, as if fully set forth herein. 14. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 75 through 79 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. AS AND FOR A FOURTH CAUSE OF ACTION FOR NEGLIGENT CONTRACTIING ACTIVITIES AGAINST DEFENDANTS, ALRAY CONSTRUCTION CORP. f/k/a HEBERT CONSTRUCTION CORP., ELMER W. DAVIS, INC., FRONTIER INSULATION CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBESTSOS, INC., INDUSTRIAL INSULATION SALES, INC., INSULATION DISTRIBUTORS, INC., MADER CAPITAL, INC, MADER PLASTERING CORP., R.E. HEBERT AND COMPANY, INC., ROCHESTER ACOUSTICAL, INC., THE MADER CORPORATION AND WILLIAM SUMMERHAYS’ SONS CORPORATION, THE PLAINTIFF, ROBERT A. KARINSKY, ALLEGES: 15. In response to paragraph 80 of the Complaint, FMC repeats, reiterates and realleges its responses to paragraphs 1 through 79, as if fully set forth herein. 4 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 16. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 81 through 105 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. AS AND FOR A FIFTH CAUSE OF ACTION FOR LOSS OF CONSORTIUM AGAINST THE DEFENDANTS NAMED HEREIN, THE PLAINTIFF, PAUL A. KARNISKY, ALLEGES: 17. In response to paragraph 106 of the Complaint, FMC repeats, reiterates and realleges its responses to paragraphs 1 through 105, as if fully set forth herein. 18. FMC denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 107 of the Complaint as they pertain to parties other than FMC and refers all questions of law to the Court. 19. FMC denies the allegations in paragraph 108 of the Complaint as they pertain to FMC, denies knowledge or information sufficient to form a belief as to the truth of allegations as they pertain to parties other than FMC and refers all questions of law to the Court. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE 1. All claims are time-barred by the applicable statute of limitations. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 2. All causes of action have not been maintained in a timely fashion and Plaintiff has neglected the same and should be barred by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 3. The Court lacks jurisdiction over the subject matter of this action. 5 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 4. The Complaint, and each and every allegation considered separately, fails to state any cause of action against FMC upon which relief can be granted. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 5. Since Plaintiff is unable to identify the manufacturers of the substance, product or equipment which allegedly caused injury to them, Plaintiff fails to state a claim upon which relief may be granted, since if such relief were granted, it would deprive FMC of its constitutional rights to substantive and procedural due process of law and equal protection under the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 6. In the event that plaintiff was employed by FMC, which is denied, plaintiff’s sole and exclusive remedy is under the Worker’s Compensation Law of the State of New York. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 7. To the extent to which Plaintiff seeks punitive damages against FMC, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. The imposition of punitive damages violates the due process, contract, excessive fines and “double jeopardy” clauses of the Constitution of the United States and Article 1, Section 6 of the New York State Constitution. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 8. Upon information and belief, FMC conformed to the scientific knowledge and data available to the industry and fulfilled its obligations, if any, and its activities and 6 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and Plaintiff may not recover herein any exemplary or punitive damages against FMC. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 9. Plaintiff was aware of the facts, circumstances and conditions existing at the time and place set forth in the Complaint and voluntarily assumed all risk arising therefrom. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 10. FMC reserves the right to move at any time prior to the trial date of the above matter to dismiss the Complaint on the following grounds: (a) the court lacks jurisdiction over the subject matter; (b) the court lacks personal jurisdiction over FMC; (c) the Complaint fails to state a claim upon which relief can be granted. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 11. FMC is not a proper party defendant. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 12. Insofar as the Complaint and each cause of action considered separately allege a cause of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. 7 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 13. If Plaintiff should prove that injuries were sustained as alleged, such injuries and damages resulted from acts or omissions on the part of third parties over whom FMC had neither control nor right of control. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 14. While FMC denies the allegations of Plaintiff with respect to liability, injury and damages, to the extent to which Plaintiff may be able to prove the same, they were the result of intervening an/or interceding acts of superseding negligence on the part of third parties over whom FMC had neither control nor right of control. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 15. While denying Plaintiff’s allegations with respect to liability, to the extent that negligence or improper conduct may be proved, the acts of FMC are not a proximate cause of any injuries to Plaintiff. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 16. At all times during the conduct of their corporate operations, the agents, servants and/or employees of FMC complied with all applicable law, regulations, standards and the available knowledge and technology of the medical, scientific and industrial communities. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 17. If it should be proven at the time of trial that any products sold by FMC were furnished to Plaintiff’s employers or to the United States Government and that Plaintiff came into contact with these products, which is specifically denied, then any such product was 8 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 furnished in strict conformity to the conditions specified or to the specifications furnished by Plaintiff’s employers and/or the United States Government. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff, his coworkers and employers, misused, abused, mistreated and misapplied the products designated as asbestos material as alleged in the Complaint. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 19. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the products caused and/or contributed to the alleged damages or injuries to Plaintiff, FMC requests that the amount of damages which might be recovered shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication attributed to the Plaintiff, his coworkers and/or employers bears to the conduct which caused the alleged injuries or damages. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 20. FMC neither gave, made nor otherwise extended any warranties, whether express or implied, upon which Plaintiff had a right to rely. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and unavailable because of the provision of the applicable Statute of Frauds. 9 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 22. As to all the causes of action pleaded in the Complaint which may be based upon express or implied warranties and/or representations, such causes of action are legally insufficient, as against FMC, by reason of Plaintiff’s failure to allege privity of contract between the Plaintiff and FMC, which is specifically denied. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 23. In the event that any breach of express or implied warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to FMC. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. Plaintiff did not directly or indirectly purchase any asbestos-containing products from FMC, and Plaintiff neither received nor relied upon any warranty or representation that may be alleged to have been made by FMC. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. To the extent to which the causes of action pleaded by Plaintiff fail to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, Plaintiff’s Complaint and Complaint are time-barred. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. FMC denies that Plaintiff had any exposure to any asbestos-containing product allegedly processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by FMC, and more particularly, denies, upon information and belief that FMC processed, manufactured, supplied, 10 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 developed, tested, fashioned, packaged, distributed, sold and/or otherwise placed in the stream of commerce any asbestos-containing product at the times and upon the dates alleged in the Complaint. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. FMC denies specifically that, during periods of exposure alleged in the Complaint by the Plaintiff, it processed, manufactured, designed, 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-containing products to which Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and which thereby caused the Plaintiff’s injuries and resulting damages alleged in the Complaint. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. FMC purchased or obtained a product from a reputable manufacturer, and any defect therein was latent and not ascertainable by or upon a reasonable inspection. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 29. In the event plaintiff recovers a verdict or judgment against FMC, then aid verdict or judgment must be reduced pursuant to CPLR 4545 (c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or future claimed economic loss from any collateral source such as insurance, social security, workers compensation or employee benefit programs. 11 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 30. FMC specifically 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 fail to state a cause of action in strict liability. AS AND FOR A THIRTY FIRST AFFIRMATIVE DEFENSE 31. The doctrine of strict liability is inapplicable to this litigation. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 32. Plaintiff contributed to his illness by the use, either in whole or in part, of other substances, products, medications and/or drugs. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 33. The employers of Plaintiff were sophisticated purchasers upon whom devolved all responsibility for the use of the products referred to in Plaintiff’s Complaint. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. At all times material hereto, the state of the medical, industrial, and scientific arts, knowledge and technology was that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous, hazardous or defective character or nature of asbestos-containing products when used in the manner and for the purposes intended, so that there was no duty to warn by FMC to know of such character or nature or to warn Plaintiff or others similarly situated, and that, to the extent such duty arose, adequate warning either were given or were not necessary under all circumstances. 12 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. 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 for at length herein as defenses to Plaintiff’s Complaint. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. FMC reserves the right to amend this pleading to assert additional defense upon discovery of the specific facts upon which Plaintiff bases his claims for relief, and upon completion of further discovery. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. Plaintiff’s exclusive remedies are under the applicable federal workers’ compensation laws, including the Federal Employment Liability Act. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 38. FMC hereby invokes the provisions of Article 16 of the New York CPLR and requests that the jury herein be charged accordingly. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 39. FMC complied with the state of the art and is, therefore, immune from suit. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 40. Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and indispensable parties. 13 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 41. Plaintiff’s claims should be dismissed on grounds of improper venue and/or forum non conveniens. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 42. Plaintiff’s claims should be dismissed on grounds of improper service of process. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 43. FMC reserves the right to move for a severance of the various allegations in the Plaintiff’s Complaint. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 44. Plaintiff’s employer and employers of others are primarily, solely and exclusively liable for the within claims. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 45. Any asbestos-containing products which FMC may have supplied were de minimus in light of the total sales by all sources and, therefore, plaintiff fails to state a claim against FMC. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 46. FMC 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. 14 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 47. Exposure to asbestos allegedly attributable to FMC is so minimal so as to be insufficient to establish a reasonable degree of probability that the products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 48. To the extent any plaintiff herein brings suit in a representative capacity, such plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law § 5-41. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 49. The purported service upon FMC in this action was not proper, and as a result, this Court lacks personal jurisdiction over FMC. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE 50. Upon information and belief, any alleged injuries were caused by a pre-existing or unrelated medical condition, disease or illness of the plaintiff. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 51. Plaintiff’s claims are barred by the doctrines of waiver and/or estoppel. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE 52. FMC had no legal duty of care to plaintiff. 15 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 53. Plaintiff’s claims are barred, in whole or in part, to the extent that the plaintiff failed to mitigate damages. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE 54. In the event that plaintiff recovers a verdict or judgment against FMC, then said verdict or judgment must be reduced by those amounts which have been paid or indemnified or will, with reasonable certainty, be paid or indemnified to any plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source including insurance, social security, workers compensation or employees benefit programs. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 55. Plaintiff has improperly joined claims of multiple parties in violation of Article 6 and 10 of the New York CPLR and all improperly joined or misjoined parties and/or claims must be severed and tried separately. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE 56. Finished asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE 57. None of the alleged injuries or damages were foreseeable at the time of the Verified Complaint of acts or omissions in plaintiff’s Verified Complaint. 16 of 20 202109080092 IndexNO. INDEX #: E2021005118 E2021005118 FILED: MONROE COUNTY CLERK 09/08/2021 09:38 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/08/2021 AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE 58. Plaintiff was warned of risk of exposure to use of asbestos-containing materials. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE 59. The damages allegedly sustained by the plaintiff were caused, in whole or in part, through the operation of nature. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE 60. Insofar as plaintiff’s Complaint is premised upon any claims accruing on or after September 1, 1975, to recover damages for personal injuries, the amount of damages recoverable thereon must be