Preview
FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
HARRY J. HAMPSON, Index No.: 606219/2021
Plaintiff(s),
VERIFIED ANSWER ON
-against- BEHALF OF DEFENDANT
McCORD CORPORATION
AMCHEM PRODUCTS, INC., n/k/a RHONE
POULENC AG COMPANY, n/k/a BAYER
CROPSCIENCE INC., et al.,
Defendant(s).
Defendant, McCORD CORPORATION, by its attorneys, GOLDBERG SEGALLA LLP,
for its verified answer to the summons and verified complaint (“Complaint”) herein states:
1. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations as they pertain to this answering defendant contained in paragraphs 1,
4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22 and 23 of the Complaint.
2. Defendant McCord Corporation denies the allegations contained in paragraphs 2 and
3 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge
or information sufficient to form a belief as to the truth of those allegations insofar as they pertain
to other defendants.
3. Defendant McCord Corporation denies each and every allegation contained in
paragraph 15 of the Complaint insofar as they pertain to McCord Corporation, except avers that
McCord is a duly organized foreign corporation.
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AS AND FOR AN ANSWER TO THE FIRST
CAUSE OF ACTION AGAINST ALL DEFENDANTS
4. Defendant McCord Corporation denies the allegations contained in paragraph 24
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 23
of the Complaint as if fully set forth herein.
5. Defendant McCord Corporation denies the allegations contained in paragraphs 25, 26,
27 and 28 of the Complaint insofar as they relate to Defendant McCord Corporation and denies
knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
they pertain to other defendants.
6. Defendant McCord Corporation denies the allegations contained in paragraphs 29, 30,
31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 of the Complaint insofar as they relate to
Defendant McCord Corporation, denies knowledge or information sufficient to form a belief as to
the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all
questions of law to the Court.
AS AND FOR AN ANSWER TO THE SECOND
CAUSE OF ACTION AGAINST ALL DEFENDANTS
7. Defendant McCord Corporation denies the allegations contained in paragraph 44
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 43
of the Complaint as if fully set forth herein.
8. Defendant McCord Corporation denies the allegations contained in paragraphs 45, 46
and 47 of the Complaint insofar as they relate to Defendant McCord Corporation, denies
knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
they pertain to other defendants, and respectfully refers all questions of law to the Court.
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9. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations as they pertain to this answering defendant contained in paragraph 48
of the Complaint.
10. Defendant McCord Corporation denies the allegations contained in paragraph 49 of
the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or
information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
other defendants.
AS AND FOR AN ANSWER TO THE THIRD
CAUSE OF ACTION AGAINST ALL DEFENDANTS
11. Defendant McCord Corporation denies the allegations contained in paragraph 50
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 49
of the Complaint as if fully set forth herein.
12. Defendant McCord Corporation denies the allegations contained in paragraphs 51, 52,
53, 54, 55, 56, 57 and 59 of the Complaint insofar as they relate to McCord Corporation and denies
knowledge and information sufficient to form a belief as to those allegations of the Complaint
insofar as they relate to other defendants.
13. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations as they pertain to this answering defendant contained in paragraph 58
of the Complaint.
AS AND FOR AN ANSWER TO THE FOURTH
CAUSE OF ACTION AGAINST ALL DEFENDANTS
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14. Defendant McCord Corporation denies the allegations contained in paragraph 60
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 59
of the Complaint as if fully set forth herein.
15. Defendant McCord Corporation denies the allegations contained in paragraphs 61, 62
and 70 of the Complaint insofar as they relate to McCord Corporation and denies knowledge and
information sufficient to form a belief as to those allegations of the Complaint insofar as they relate
to other defendants.
16. Defendant McCord Corporation denies the allegations contained in paragraphs 63, 64,
65, 66, 67 (including subparagraphs 7, 8, 10 and 11) and 68 of the Complaint insofar as they relate
to Defendant McCord Corporation, denies knowledge or information sufficient to form a belief as
to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers
all questions of law to the Court.
17. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations as they pertain to this answering defendant contained in paragraph 69
of the Complaint.
AS AND FOR AN ANSWER TO THE FIFTH
CAUSE OF ACTION AGAINST ALL DEFENDANTS
18. Defendant McCord Corporation denies the allegations contained in paragraph 71
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 70
of the Complaint as if fully set forth herein.
19. Defendant McCord Corporation denies the allegations contained in paragraphs 72, 73,
74, 75, 76, 77, 78, 79, 80, 81 (including subparagraphs a through e), 82, 83, 84, 85, 86 and 87 of
the Complaint insofar as they relate to Defendant McCord Corporation, denies knowledge or
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information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
other defendants, and respectfully refers all questions of law to the Court.
20. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations as they pertain to this answering defendant contained in paragraph 88
of the Complaint.
21. Defendant McCord Corporation denies the allegations contained in paragraph 89 of
the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or
information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
other defendants.
AS AND FOR AN ANSWER TO THE SIXTH
CAUSE OF ACTION AGAINST ALL DEFENDANTS
22. Defendant McCord Corporation denies the allegations contained in paragraph 90
of the Complaint and repeats and realleges each and every response to paragraphs 1 through 89
of the Complaint as if fully set forth herein.
23. Defendant McCord Corporation denies knowledge or information sufficient to form a
belief as to the allegations contained in paragraph 91 of the Complaint.
24. Defendant McCord Corporation denies the allegations contained in paragraph 92 of
the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or
information sufficient to form a belief as to the truth of those allegations insofar as they pertain to
other defendants.
25. Defendant McCord Corporation otherwise denies all allegations not previously
admitted or denied.
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AFFIRMATIVE DEFENSES
First Affirmative Defense
26. That defendant, McCord Corporation, denies any negligence, culpable conduct or
liability on its part, but if said defendant is ultimately found to be liable to plaintiff, then, pursuant
to Article 16 of the Civil Practice Law & Rules, it shall only be liable for its equitable share of
plaintiff’s recovery since any liability which will be found against it will be insufficient to impose
joint liability.
Second Affirmative Defense
27. To the extent that the Complaint herein and the claims made by Plaintiffs were not
commenced within the time limited by law, the Complaint is barred by the applicable statute of
limitations.
Third Affirmative Defense
28. That to the extent that plaintiff has failed and neglected to maintain this action in a
swift, diligent and timely fashion, the Plaintiffs’ Complaint is barred by laches.
Fourth Affirmative Defense
29. Plaintiffs have failed to plead the claims of fraud and conspiracy with proper
specificity and, as such, all claims premised on fraud and conspiracy must be dismissed.
Fifth Affirmative Defense
30. The Complaint and each and every allegation considered separately fail to state any
cause of action against this answering defendant upon which relief can be granted.
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Sixth Affirmative Defense
31. That the injuries and/or illnesses to Plaintiff, if any, are governed by the applicable
Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiffs’
exclusive remedy, if any, shall lie within the terms and ambit of said statutes.
Seventh Affirmative Defense
32. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or
contributed by the fault, neglect and want of care on the part of Plaintiff or on the part of others
for whose acts or omissions or breach of legal duty McCord Corporation is not liable.
Eighth Affirmative Defense
33. In the event that Plaintiff used the products(s) designated in the Complaint, said
product(s) was (were) misused or improperly used, which misuse or improper use proximately
caused and contributed, in whole or in part, to the claims alleged by Plaintiffs in the Complaint.
Ninth Affirmative Defense
34. Upon information and belief, that if Plaintiffs sustained any of the injuries, losses and
damages complained of in the Complaint, such injuries, losses and damages were caused or
brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or
other culpable conduct of Plaintiffs. Upon information and belief, that any recovery herein by
Plaintiffs, if any, must be diminished and reduced in the proportion which the said culpable
conduct of Plaintiffs bear to the alleged culpable conduct of the defendant, if any, which allegedly
caused said injuries, losses or damages.
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Tenth Affirmative Defense
35. Insofar as the Complaint and each cause of action considered separately allege a
cause of action accruing on or after September 1, 1975 to recover damages for personal injuries,
the amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to Plaintiffs, including contributory negligence and assumption of risk, in the
proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which
caused the damages.
Eleventh Affirmative Defense
36. Upon information and belief, that insofar as Plaintiffs rely upon allegations of
negligence, breaches of warranties, fraudulent representations and violations of obligations of
strict product liability as against McCord Corporation prior to September, 1975, said causes of
action fail to state facts sufficient to constitute causes of action as against McCord Corporation by
reason of the failure to allege the freedom of Plaintiffs from contributory negligence or fault; and
that if Plaintiffs sustained the injuries, losses and other damages complained of in the Complaint,
they were caused and brought about, in whole or in part, by the negligence, carelessness,
assumption of risk, fault or other culpable conduct of Plaintiffs.
Twelfth Affirmative Defense
37. While this answering defendant denies the allegations of Plaintiffs with respect to
negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiff may
be able to prove the same, they were the result of intervening and/or interceding acts of superseding
negligence on the part of third parties over which this answering defendant had neither control nor
right of control.
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Thirteenth Affirmative Defense
38. That to the extent that plaintiff alleges rights hereunder assertedly derived from oral
warranties or undertakings on the part of McCord Corporation, the Complaint is barred by the
applicable statute of frauds.
Fourteenth Affirmative Defense
39. If Plaintiff used any products of McCord Corporation, the answering defendant
alleges upon information and belief that said products were produced pursuant to government
specifications and as such, McCord Corporation is relieved of any responsibility for the injuries
which Plaintiffs claim.
Fifteenth Affirmative Defense
40. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
product caused and/or contributed to the alleged damages or injuries to plaintiff, then, this
answering defendant requests that the amount of damages which might be recoverable shall be
diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication,
attributed to Plaintiff, his co-workers and/or employers bears to the conduct which caused the
alleged damages or injuries.
Sixteenth Affirmative Defense
41. That the injuries and/or illnesses to Plaintiff, if any, arose in whole or in part, out of
the risks, hazards and dangers incident to the occupation of said Plaintiff, all of which were open,
obvious and well known to Plaintiff, and the action is barred by virtue of Plaintiff’s assumption of
the risks thereof.
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Seventeenth Affirmative Defense
42. That to the extent that McCord Corporation conformed to the scientific knowledge
and research data available throughout the industry and scientific community, McCord
Corporation shall have fulfilled its obligations, if any, herein, and Plaintiffss claims shall be barred,
in whole or in part.
Eighteenth Affirmative Defense
43. Upon information and belief, McCord Corporation conformed to the scientific
knowledge and data available in the industry and fulfilled its obligations, if any, and its activities
and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or
wantonness, and Plaintiffs may not recover herein any exemplary damages or punitive damages
against McCord Corporation.
Nineteenth Affirmative Defense
44. That the cause of action pleaded in the Complaint insofar as it asserts an alleged cause
of action for express and/or implied warranties and the alleged breaches thereof, as against McCord
Corporation, is legally insufficient by reason of the failure to allege privity of contract and/or
privity of warranties between Plaintiffs and McCord Corporation.
Twentieth Affirmative Defense
45. To the extent that any breach of warranty is alleged, Plaintiffs have failed to give
proper and prompt notice of any such breach of warranty to McCord Corporation.
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Twenty-First Affirmative Defense
46. Plaintiffs did not directly or indirectly purchase any asbestos-containing products or
materials from this answering defendant and Plaintiffs neither received nor relied upon any
representation or warranty allegedly made by this answering defendant.
Twenty-Second Affirmative Defense
47. That to the extent that the cause pleaded by Plaintiffs herein fails to accord with the
Uniform Commercial Code, including, but not limited to §2-725 thereof, Plaintiffs’ Complaint is
barred.
Twenty-Third Affirmative Defense
48. That to the extent that any of the products for which liability is charged herein to
McCord Corporation, which is specifically denied, were modified, assembled, altered, quantified
or in any way materially varied, which same may be casually related to the claims of Plaintiffs,
the actions of Plaintiffs are barred herein.
Twenty-Fourth Affirmative Defense
49. Upon information and belief, that insofar as Plaintiffs allege, as against McCord
Corporation, any willful and wanton misconduct, and that if knowingly and intentionally sold a
product or products that it knew to be unreasonably dangerous, all of which McCord Corporation
denies, any such cause of action or causes of action accrued more than one year prior to the
commencement of this lawsuit and are time-barred by the one-year statute of limitations.
Twenty-Fifth Affirmative Defense
50. That to the extent that the use, application, employment, surrounding conditions,
safety precautions and other circumstances attendant upon the material allegedly used by Plaintiff
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were determined, controlled, selected or limited by his employer or by others for whose acts,
omissions or breach McCord Corporation is not liable, the Complaint is barred, in whole or in part.
Twenty-Sixth Affirmative Defense
51. Plaintiffs’ claims are barred by the doctrine of res judicata and/or collateral estoppel.
Twenty-Seventh Affirmative Defense
52. If Plaintiff used any products of McCord Corporation, upon information and belief,
McCord Corporation alleges that said products were used improperly, and without proper safety
protection which was available from Plaintiff’s employer(s).
Twenty-Eighth Affirmative Defense
53. Plaintiff’s employer(s) was a sophisticated purchaser upon which devolved all
responsibility for the use of products referred to in Plaintiffs’ Complaint.
Twenty-Ninth Affirmative Defense
54. At all times material hereto, the state of the medical and industrial art was such that
there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently
dangerous or hazardous character or nature of products containing asbestos when used in the
manner and purpose described by Plaintiff, therefore, there was no duty for McCord Corporation
to know of such character or nature or to warn Plaintiff or others similarly situated.
Thirtieth Affirmative Defense
55. Plaintiffs’ cause of action for exemplary and punitive damages is barred because such
damages are not recoverable or warranted in this action.
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Thirty-First Affirmative Defense
56. The imposition of punitive damages on the facts alleged in the Complaint would
violate the due process clauses of the Constitutions of the United States and the State of New York.
Thirty-Second Affirmative Defense
57. The imposition of punitive damages on the facts alleged in the Complaint would
violate the excessive fines clause of the Constitution of the State of New York.
Thirty-Third Affirmative Defense
58. The imposition of punitive damages on the facts alleged in the Complaint is barred
by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article
1, Section 6 of the New York State Constitution.
Thirty-Fourth Affirmative Defense
59. The imposition of punitive damages on the facts alleged in the Complaint is barred
by the ex post facto clause of the United States Constitution.
Thirty-Fifth Affirmative Defense
60. The imposition of punitive damages on the facts alleged in the Complaint is barred
by the United States Constitution and by the Constitution of the State of New York.
Thirty -Sixth Affirmative Defense
61. The action cannot proceed in the absence of all parties who should be named in
accordance with CPLR §1001.
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Thirty -Seventh Affirmative Defense
62. In the event that Plaintiff(s) recover(s) damages in this action, which have been paid
or are payable by a collateral source, this answering defendant will seek a collateral source offset
pursuant to Article 45 of the CPLR.
Thirty -Eighth Affirmative Defense
63. Plaintiffs contributed to their illnesses by the use, either in whole or in part, of other
substances, products, medications and drugs. To the extent that Plaintiffs used any tobacco
products, any liability should be reduced by the extent of any use and/or injuries related thereto or
caused thereby.
Thirty-Ninth Affirmative Defense
64. Upon information and belief, the incident complained of in the Complaint and the
alleged damages were caused by the culpable conduct of the remaining parties to this action. By
reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR.
Fortieth Affirmative Defense
65. Liability for non-economic loss is limited by the applicable provisions of the Article
16 of the CPLR.
Forty-First Affirmative Defense
66. That in the event there has been a settlement between the plaintiff and any joint
tortfeasor, then defendant hereby pleads and seeks the full benefit of §15-108 of the General
Obligations Law, that Plaintiffs’ claim against this answering defendant be reduced to the fullest
extent permitted by §15-108 of the General Obligations Law.
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Forty-Second Affirmative Defense
67. Plaintiffs do not have the legal capacity to sue and therefore do not have standing to
commence or maintain this action.
Forty-Third Affirmative Defense
68. This action is barred by the doctrine of judicial estoppel.
Forty-Fourth Affirmative Defense
69. This Court lacks in personam jurisdiction in this matter by reason of improper service of
process of this Defendant.
Forty-Fifth Affirmative Defense
70. This Court lacks subject matter jurisdiction of this Defendant.
Forty-Sixth Affirmative Defense
71. This Court lacks in personam jurisdiction of this Defendant.
Forty-Seventh Affirmative Defense
72. The action should be dismissed because the forum for this matter is improper.
Forty-Eighth Affirmative Defense
73. Pursuant to CPLR 503, the action should be dismissed because of improper venue.
Forty-Ninth Affirmative Defense
74. McCord Corporation did not own, control, manufacture or distribute any alleged
product to which Plaintiff claims he was exposed.
Fiftieth Affirmative Defense
75. McCord Corporation did not assume any liability for any entity that may have
produced products to which Plaintiff claims he was exposed.
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Fifty-First Affirmative Defense
76. McCord Corporation denies that Plaintiff had any exposure to any asbestos product
mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold and/or otherwise placed in the stream of commerce by McCord Corporation, and
more particularly denies upon information and belief that McCord Corporation mined, processed,
manufactured, supplied, developed, tested, fashioned, packaged, delivered, sold and/or otherwise
placed in the stream of commerce any asbestos product at the times and upon the dates alleged in
the Complaint herein.
Fifty-Second Affirmative Defense
77. McCord Corporation denies specifically that, during the periods of exposure
alleged in the Complaint by Plaintiffs, it mined, 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 products to which Plaintiff
was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and
which thereby caused Plaintiffs’ injuries and resulting damages alleged in the Complaint herein.
Fifty-Third Affirmative Defense
78. In the event it should be proven at the time of trial that all the defendants are subject
to market share liability, then, this answering defendant’s share of such liability would be of such
a de minimus amount as to make its contribution for damages negligible, and this answering
defendant would be entitled to contribution, either in whole or in part, from co-defendants.
Fifty-Fourth Affirmative Defense
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79. This answering defendant specifically denies that the asbestos products alleged in
Plaintiffs’ Complaint are products within the meaning and scope of the Restatement of Torts §402A,
and as such, the Complaint fails to state a cause of action in strict liability.
Fifty-Fifth Affirmative Defense
80. To the extent that Plaintiffs rely on the New York Law L. 1986, C. 682, Section 4
as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive
McCord Corporation of its constitutional rights and is wholly void and unenforceable.
Fifty-Sixth Affirmative Defense
81. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-
Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S, A.P.
Green, and all other entities in bankruptcy relating thereto would be in violation of McCord
Corporation’s constitutional rights.
Fifty-Seventh Affirmative Defense
82. If at the time of trial, it is shown that Plaintiff used products manufactured, supplied,
distributed or sold by the answering defendant, said products or a portion thereof were supplied to,
by or on behalf of the United States Government, or if those products were supplied or sold by the
United States Government, the answering defendant raises any immunity from suit or from liability
as conferred by the United States Government, and specifically pleads the government contractor
defense.
Fifty-Eighth Affirmative Defense
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83. The Plaintiff-spouse’s loss of consortium claim is barred as a matter of law to the
extent that the asbestos exposure alleged by the plaintiff predates the date of Plaintiff’s and Plaintiff-
spouse’s marriage.
Fifty-Ninth Affirmative Defense
84. The answering defendant incorporates and adopts by reference any and all other
and/or additional defenses, raised or to be raised by any other party and expressly reserves the right
to amend and supplement its defenses herein to assert additional defenses and to make further
admission upon completion of further investigation and discovery.
CROSS-CLAIM AGAINST CO-DEFENDANTS
85. If Plaintiffs were caused to sustain damage at the time and place set forth in the
Plaintiffs’ Complaint through any carelessness, recklessness and/or negligence other than that of
Plaintiffs, including but not limited to, the manufacture and distribution of the asbestos product,
breaches of warranty, either express or implied, and in strict liability in tort, these damages will
have been caused and brought about by reason of the carelessness, recklessness and/or negligence
of the co-defendants not represented by this answer.
86. If Plaintiffs should recover a judgment against this answering defendant, by
operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over
and against the co-defendants not represented by this answer, their agents, servants and/or
employees, by reason of their carelessness, recklessness and/or negligence for the amount of any
such recovery, or a portion thereof, in accordance with the principals of law regarding
apportionment of fault and damages, along with costs, disbursements and reasonable expenses of
the investigation and defense of this action including reasonable attorneys’ fees.
ANSWER TO ALL CROSS CLAIMS
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87. With respect to any cross-claims for contribution and/or indemnity asserted against
McCord Corporation by any co-defendant(s), McCord Corporation hereby denies all such cross-
claims and demands that they be dismissed.
WHEREFORE, McCord Corporation demands judgment as follows:
A. Dismissing the Complaint, together with the costs and disbursements of this action;
B. Determining the ultimate rights and responsibilities among the defendants;
C. Dismissing all Cross-Claims;
D. Granting judgment in favor of this answering defendant over and against the other
defendants as set forth above for the amount of the recovery against this answering defendant or
such part thereof as may be determined, together with costs and disbursements of this action; and
E. Such other and further relief as the Court may deem just and proper.
Dated: New York, NY
May 3, 2021
GOLDBERG SEGALLA LLP
_______________________________
Andrew J. Scholz, Esq.
Attorneys for Defendant
McCord Corporation
711 3rd Avenue, Suite 1900
New York, NY 10017
(646) 292-8770
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VERIFICATION
Andrew J. Scholz, being duly sworn herein says:
1. That he is one of the attorneys for the defendant, MCCORD CORPORATION, in
this action; that he has read the answer to the Complaint and knows the contents thereof; that the
same is true to his own knowledge except as to the matters therein stated to be alleged upon
information and belief and as to those matters, he believes them to be true.
2. That the reason this verification is made by the deponent and not by defendant,
MCCORD CORPORATION, is that the answering defendant is outside the County of New York
where the deponent maintains his office.
3. That the sources of deponent’s knowledge and the grounds for his belief are from
the correspondence with said defendant, MCCORD CORPORATION, and correspondence and
conversations with the representatives of said defendant, and from reports of investigation of the
said defendant’s representatives, certain of which the correspondence and reports are now in
deponent’s possession.
Dated: New York, NY
May 3, 2021
________________________
Andrew J. Scholz
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021
CERTIFICATION
ANDREW J. SCHOLZ, an attorney admitted to practice law in the Courts of the State
of New York, affirms under the penalties of perjury, that the following statements are true:
That I am the attorney for Defendant, MCCORD CORPORATION.
That I certify to the best of my knowledge, information and belief, formed after an
inquiry reasonable under the circumstances, that presentation of Verified Answer of Defendant,
MCCORD CORPORATION and the contentions therein are not frivolous as defined in 22
NYCRR 130-1.1-a, et seq.
Dated: New York, NY
May 3, 2021
GOLDBERG SEGALLA LLP
_______________________________
Andrew J. Scholz, Esq.
Attorneys for Defendant
MCCORD CORPORATION
711 3rd Avenue, Suite 1900
New York, NY 10017
(646) 292-8770
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29787321.v1
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FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK HARRY J. HAMPSON, Index No.: 606219/2021 Plaintiff(s), VERIFIED ANSWER ON -against- BEHALF OF DEFENDANT McCORD CORPORATION AMCHEM PRODUCTS, INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., et al., Defendant(s). Defendant, McCORD CORPORATION, by its attorneys, GOLDBERG SEGALLA LLP, for its verified answer to the summons and verified complaint (“Complaint”) herein states: 1. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraphs 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22 and 23 of the Complaint. 2. Defendant McCord Corporation denies the allegations contained in paragraphs 2 and 3 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. 3. Defendant McCord Corporation denies each and every allegation contained in paragraph 15 of the Complaint insofar as they pertain to McCord Corporation, except avers that McCord is a duly organized foreign corporation. -1- 29787321.v1 1 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 4. Defendant McCord Corporation denies the allegations contained in paragraph 24 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 23 of the Complaint as if fully set forth herein. 5. Defendant McCord Corporation denies the allegations contained in paragraphs 25, 26, 27 and 28 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. 6. Defendant McCord Corporation denies the allegations contained in paragraphs 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 of the Complaint insofar as they relate to Defendant McCord Corporation, denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS 7. Defendant McCord Corporation denies the allegations contained in paragraph 44 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 43 of the Complaint as if fully set forth herein. 8. Defendant McCord Corporation denies the allegations contained in paragraphs 45, 46 and 47 of the Complaint insofar as they relate to Defendant McCord Corporation, denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. -2- 29787321.v1 2 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 9. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraph 48 of the Complaint. 10. Defendant McCord Corporation denies the allegations contained in paragraph 49 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS 11. Defendant McCord Corporation denies the allegations contained in paragraph 50 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 49 of the Complaint as if fully set forth herein. 12. Defendant McCord Corporation denies the allegations contained in paragraphs 51, 52, 53, 54, 55, 56, 57 and 59 of the Complaint insofar as they relate to McCord Corporation and denies knowledge and information sufficient to form a belief as to those allegations of the Complaint insofar as they relate to other defendants. 13. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraph 58 of the Complaint. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS -3- 29787321.v1 3 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 14. Defendant McCord Corporation denies the allegations contained in paragraph 60 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 59 of the Complaint as if fully set forth herein. 15. Defendant McCord Corporation denies the allegations contained in paragraphs 61, 62 and 70 of the Complaint insofar as they relate to McCord Corporation and denies knowledge and information sufficient to form a belief as to those allegations of the Complaint insofar as they relate to other defendants. 16. Defendant McCord Corporation denies the allegations contained in paragraphs 63, 64, 65, 66, 67 (including subparagraphs 7, 8, 10 and 11) and 68 of the Complaint insofar as they relate to Defendant McCord Corporation, denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 17. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraph 69 of the Complaint. AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 18. Defendant McCord Corporation denies the allegations contained in paragraph 71 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 70 of the Complaint as if fully set forth herein. 19. Defendant McCord Corporation denies the allegations contained in paragraphs 72, 73, 74, 75, 76, 77, 78, 79, 80, 81 (including subparagraphs a through e), 82, 83, 84, 85, 86 and 87 of the Complaint insofar as they relate to Defendant McCord Corporation, denies knowledge or -4- 29787321.v1 4 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 20. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraph 88 of the Complaint. 21. Defendant McCord Corporation denies the allegations contained in paragraph 89 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 22. Defendant McCord Corporation denies the allegations contained in paragraph 90 of the Complaint and repeats and realleges each and every response to paragraphs 1 through 89 of the Complaint as if fully set forth herein. 23. Defendant McCord Corporation denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 91 of the Complaint. 24. Defendant McCord Corporation denies the allegations contained in paragraph 92 of the Complaint insofar as they relate to Defendant McCord Corporation and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. 25. Defendant McCord Corporation otherwise denies all allegations not previously admitted or denied. -5- 29787321.v1 5 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 AFFIRMATIVE DEFENSES First Affirmative Defense 26. That defendant, McCord Corporation, denies any negligence, culpable conduct or liability on its part, but if said defendant is ultimately found to be liable to plaintiff, then, pursuant to Article 16 of the Civil Practice Law & Rules, it shall only be liable for its equitable share of plaintiff’s recovery since any liability which will be found against it will be insufficient to impose joint liability. Second Affirmative Defense 27. To the extent that the Complaint herein and the claims made by Plaintiffs were not commenced within the time limited by law, the Complaint is barred by the applicable statute of limitations. Third Affirmative Defense 28. That to the extent that plaintiff has failed and neglected to maintain this action in a swift, diligent and timely fashion, the Plaintiffs’ Complaint is barred by laches. Fourth Affirmative Defense 29. Plaintiffs have failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and conspiracy must be dismissed. Fifth Affirmative Defense 30. The Complaint and each and every allegation considered separately fail to state any cause of action against this answering defendant upon which relief can be granted. -6- 29787321.v1 6 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Sixth Affirmative Defense 31. That the injuries and/or illnesses to Plaintiff, if any, are governed by the applicable Workers’ Compensation statutes and shall have constituted an industrial disability and Plaintiffs’ exclusive remedy, if any, shall lie within the terms and ambit of said statutes. Seventh Affirmative Defense 32. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or contributed by the fault, neglect and want of care on the part of Plaintiff or on the part of others for whose acts or omissions or breach of legal duty McCord Corporation is not liable. Eighth Affirmative Defense 33. In the event that Plaintiff used the products(s) designated in the Complaint, said product(s) was (were) misused or improperly used, which misuse or improper use proximately caused and contributed, in whole or in part, to the claims alleged by Plaintiffs in the Complaint. Ninth Affirmative Defense 34. Upon information and belief, that if Plaintiffs sustained any of the injuries, losses and damages complained of in the Complaint, such injuries, losses and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or other culpable conduct of Plaintiffs. Upon information and belief, that any recovery herein by Plaintiffs, if any, must be diminished and reduced in the proportion which the said culpable conduct of Plaintiffs bear to the alleged culpable conduct of the defendant, if any, which allegedly caused said injuries, losses or damages. -7- 29787321.v1 7 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Tenth Affirmative Defense 35. Insofar as the Complaint and each cause of action considered separately allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. Eleventh Affirmative Defense 36. Upon information and belief, that insofar as Plaintiffs rely upon allegations of negligence, breaches of warranties, fraudulent representations and violations of obligations of strict product liability as against McCord Corporation prior to September, 1975, said causes of action fail to state facts sufficient to constitute causes of action as against McCord Corporation by reason of the failure to allege the freedom of Plaintiffs from contributory negligence or fault; and that if Plaintiffs sustained the injuries, losses and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of Plaintiffs. Twelfth Affirmative Defense 37. While this answering defendant denies the allegations of Plaintiffs with respect to negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third parties over which this answering defendant had neither control nor right of control. -8- 29787321.v1 8 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Thirteenth Affirmative Defense 38. That to the extent that plaintiff alleges rights hereunder assertedly derived from oral warranties or undertakings on the part of McCord Corporation, the Complaint is barred by the applicable statute of frauds. Fourteenth Affirmative Defense 39. If Plaintiff used any products of McCord Corporation, the answering defendant alleges upon information and belief that said products were produced pursuant to government specifications and as such, McCord Corporation is relieved of any responsibility for the injuries which Plaintiffs claim. Fifteenth Affirmative Defense 40. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to plaintiff, then, this answering defendant requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to Plaintiff, his co-workers and/or employers bears to the conduct which caused the alleged damages or injuries. Sixteenth Affirmative Defense 41. That the injuries and/or illnesses to Plaintiff, if any, arose in whole or in part, out of the risks, hazards and dangers incident to the occupation of said Plaintiff, all of which were open, obvious and well known to Plaintiff, and the action is barred by virtue of Plaintiff’s assumption of the risks thereof. -9- 29787321.v1 9 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Seventeenth Affirmative Defense 42. That to the extent that McCord Corporation conformed to the scientific knowledge and research data available throughout the industry and scientific community, McCord Corporation shall have fulfilled its obligations, if any, herein, and Plaintiffss claims shall be barred, in whole or in part. Eighteenth Affirmative Defense 43. Upon information and belief, McCord Corporation conformed to the scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and Plaintiffs may not recover herein any exemplary damages or punitive damages against McCord Corporation. Nineteenth Affirmative Defense 44. That the cause of action pleaded in the Complaint insofar as it asserts an alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as against McCord Corporation, is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between Plaintiffs and McCord Corporation. Twentieth Affirmative Defense 45. To the extent that any breach of warranty is alleged, Plaintiffs have failed to give proper and prompt notice of any such breach of warranty to McCord Corporation. - 10 - 29787321.v1 10 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Twenty-First Affirmative Defense 46. Plaintiffs did not directly or indirectly purchase any asbestos-containing products or materials from this answering defendant and Plaintiffs neither received nor relied upon any representation or warranty allegedly made by this answering defendant. Twenty-Second Affirmative Defense 47. That to the extent that the cause pleaded by Plaintiffs herein fails to accord with the Uniform Commercial Code, including, but not limited to §2-725 thereof, Plaintiffs’ Complaint is barred. Twenty-Third Affirmative Defense 48. That to the extent that any of the products for which liability is charged herein to McCord Corporation, which is specifically denied, were modified, assembled, altered, quantified or in any way materially varied, which same may be casually related to the claims of Plaintiffs, the actions of Plaintiffs are barred herein. Twenty-Fourth Affirmative Defense 49. Upon information and belief, that insofar as Plaintiffs allege, as against McCord Corporation, any willful and wanton misconduct, and that if knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which McCord Corporation denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred by the one-year statute of limitations. Twenty-Fifth Affirmative Defense 50. That to the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the material allegedly used by Plaintiff - 11 - 29787321.v1 11 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 were determined, controlled, selected or limited by his employer or by others for whose acts, omissions or breach McCord Corporation is not liable, the Complaint is barred, in whole or in part. Twenty-Sixth Affirmative Defense 51. Plaintiffs’ claims are barred by the doctrine of res judicata and/or collateral estoppel. Twenty-Seventh Affirmative Defense 52. If Plaintiff used any products of McCord Corporation, upon information and belief, McCord Corporation alleges that said products were used improperly, and without proper safety protection which was available from Plaintiff’s employer(s). Twenty-Eighth Affirmative Defense 53. Plaintiff’s employer(s) was a sophisticated purchaser upon which devolved all responsibility for the use of products referred to in Plaintiffs’ Complaint. Twenty-Ninth Affirmative Defense 54. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and purpose described by Plaintiff, therefore, there was no duty for McCord Corporation to know of such character or nature or to warn Plaintiff or others similarly situated. Thirtieth Affirmative Defense 55. Plaintiffs’ cause of action for exemplary and punitive damages is barred because such damages are not recoverable or warranted in this action. - 12 - 29787321.v1 12 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Thirty-First Affirmative Defense 56. The imposition of punitive damages on the facts alleged in the Complaint would violate the due process clauses of the Constitutions of the United States and the State of New York. Thirty-Second Affirmative Defense 57. The imposition of punitive damages on the facts alleged in the Complaint would violate the excessive fines clause of the Constitution of the State of New York. Thirty-Third Affirmative Defense 58. The imposition of punitive damages on the facts alleged in the Complaint is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution. Thirty-Fourth Affirmative Defense 59. The imposition of punitive damages on the facts alleged in the Complaint is barred by the ex post facto clause of the United States Constitution. Thirty-Fifth Affirmative Defense 60. The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and by the Constitution of the State of New York. Thirty -Sixth Affirmative Defense 61. The action cannot proceed in the absence of all parties who should be named in accordance with CPLR §1001. - 13 - 29787321.v1 13 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Thirty -Seventh Affirmative Defense 62. In the event that Plaintiff(s) recover(s) damages in this action, which have been paid or are payable by a collateral source, this answering defendant will seek a collateral source offset pursuant to Article 45 of the CPLR. Thirty -Eighth Affirmative Defense 63. Plaintiffs contributed to their illnesses by the use, either in whole or in part, of other substances, products, medications and drugs. To the extent that Plaintiffs used any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby. Thirty-Ninth Affirmative Defense 64. Upon information and belief, the incident complained of in the Complaint and the alleged damages were caused by the culpable conduct of the remaining parties to this action. By reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR. Fortieth Affirmative Defense 65. Liability for non-economic loss is limited by the applicable provisions of the Article 16 of the CPLR. Forty-First Affirmative Defense 66. That in the event there has been a settlement between the plaintiff and any joint tortfeasor, then defendant hereby pleads and seeks the full benefit of §15-108 of the General Obligations Law, that Plaintiffs’ claim against this answering defendant be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. - 14 - 29787321.v1 14 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Forty-Second Affirmative Defense 67. Plaintiffs do not have the legal capacity to sue and therefore do not have standing to commence or maintain this action. Forty-Third Affirmative Defense 68. This action is barred by the doctrine of judicial estoppel. Forty-Fourth Affirmative Defense 69. This Court lacks in personam jurisdiction in this matter by reason of improper service of process of this Defendant. Forty-Fifth Affirmative Defense 70. This Court lacks subject matter jurisdiction of this Defendant. Forty-Sixth Affirmative Defense 71. This Court lacks in personam jurisdiction of this Defendant. Forty-Seventh Affirmative Defense 72. The action should be dismissed because the forum for this matter is improper. Forty-Eighth Affirmative Defense 73. Pursuant to CPLR 503, the action should be dismissed because of improper venue. Forty-Ninth Affirmative Defense 74. McCord Corporation did not own, control, manufacture or distribute any alleged product to which Plaintiff claims he was exposed. Fiftieth Affirmative Defense 75. McCord Corporation did not assume any liability for any entity that may have produced products to which Plaintiff claims he was exposed. - 15 - 29787321.v1 15 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 Fifty-First Affirmative Defense 76. McCord Corporation denies that Plaintiff had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by McCord Corporation, and more particularly denies upon information and belief that McCord Corporation mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Complaint herein. Fifty-Second Affirmative Defense 77. McCord Corporation denies specifically that, during the periods of exposure alleged in the Complaint by Plaintiffs, it mined, 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 products to which Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and which thereby caused Plaintiffs’ injuries and resulting damages alleged in the Complaint herein. Fifty-Third Affirmative Defense 78. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then, this answering defendant’s share of such liability would be of such a de minimus amount as to make its contribution for damages negligible, and this answering defendant would be entitled to contribution, either in whole or in part, from co-defendants. Fifty-Fourth Affirmative Defense - 16 - 29787321.v1 16 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 79. This answering defendant specifically denies that the asbestos products alleged in Plaintiffs’ Complaint are products within the meaning and scope of the Restatement of Torts §402A, and as such, the Complaint fails to state a cause of action in strict liability. Fifty-Fifth Affirmative Defense 80. To the extent that Plaintiffs rely on the New York Law L. 1986, C. 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive McCord Corporation of its constitutional rights and is wholly void and unenforceable. Fifty-Sixth Affirmative Defense 81. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty- Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S, A.P. Green, and all other entities in bankruptcy relating thereto would be in violation of McCord Corporation’s constitutional rights. Fifty-Seventh Affirmative Defense 82. If at the time of trial, it is shown that Plaintiff used products manufactured, supplied, distributed or sold by the answering defendant, said products or a portion thereof were supplied to, by or on behalf of the United States Government, or if those products were supplied or sold by the United States Government, the answering defendant raises any immunity from suit or from liability as conferred by the United States Government, and specifically pleads the government contractor defense. Fifty-Eighth Affirmative Defense - 17 - 29787321.v1 17 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 83. The Plaintiff-spouse’s loss of consortium claim is barred as a matter of law to the extent that the asbestos exposure alleged by the plaintiff predates the date of Plaintiff’s and Plaintiff- spouse’s marriage. Fifty-Ninth Affirmative Defense 84. The answering defendant incorporates and adopts by reference any and all other and/or additional defenses, raised or to be raised by any other party and expressly reserves the right to amend and supplement its defenses herein to assert additional defenses and to make further admission upon completion of further investigation and discovery. CROSS-CLAIM AGAINST CO-DEFENDANTS 85. If Plaintiffs were caused to sustain damage at the time and place set forth in the Plaintiffs’ Complaint through any carelessness, recklessness and/or negligence other than that of Plaintiffs, including but not limited to, the manufacture and distribution of the asbestos product, breaches of warranty, either express or implied, and in strict liability in tort, these damages will have been caused and brought about by reason of the carelessness, recklessness and/or negligence of the co-defendants not represented by this answer. 86. If Plaintiffs should recover a judgment against this answering defendant, by operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over and against the co-defendants not represented by this answer, their agents, servants and/or employees, by reason of their carelessness, recklessness and/or negligence for the amount of any such recovery, or a portion thereof, in accordance with the principals of law regarding apportionment of fault and damages, along with costs, disbursements and reasonable expenses of the investigation and defense of this action including reasonable attorneys’ fees. ANSWER TO ALL CROSS CLAIMS - 18 - 29787321.v1 18 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 87. With respect to any cross-claims for contribution and/or indemnity asserted against McCord Corporation by any co-defendant(s), McCord Corporation hereby denies all such cross- claims and demands that they be dismissed. WHEREFORE, McCord Corporation demands judgment as follows: A. Dismissing the Complaint, together with the costs and disbursements of this action; B. Determining the ultimate rights and responsibilities among the defendants; C. Dismissing all Cross-Claims; D. Granting judgment in favor of this answering defendant over and against the other defendants as set forth above for the amount of the recovery against this answering defendant or such part thereof as may be determined, together with costs and disbursements of this action; and E. Such other and further relief as the Court may deem just and proper. Dated: New York, NY May 3, 2021 GOLDBERG SEGALLA LLP _______________________________ Andrew J. Scholz, Esq. Attorneys for Defendant McCord Corporation 711 3rd Avenue, Suite 1900 New York, NY 10017 (646) 292-8770 - 19 - 29787321.v1 19 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 VERIFICATION Andrew J. Scholz, being duly sworn herein says: 1. That he is one of the attorneys for the defendant, MCCORD CORPORATION, in this action; that he has read the answer to the Complaint and knows the contents thereof; that the same is true to his own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters, he believes them to be true. 2. That the reason this verification is made by the deponent and not by defendant, MCCORD CORPORATION, is that the answering defendant is outside the County of New York where the deponent maintains his office. 3. That the sources of deponent’s knowledge and the grounds for his belief are from the correspondence with said defendant, MCCORD CORPORATION, and correspondence and conversations with the representatives of said defendant, and from reports of investigation of the said defendant’s representatives, certain of which the correspondence and reports are now in deponent’s possession. Dated: New York, NY May 3, 2021 ________________________ Andrew J. Scholz - 20 - 29787321.v1 20 of 21 FILED: SUFFOLK COUNTY CLERK 05/03/2021 05:34 PM INDEX NO. 606219/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/03/2021 CERTIFICATION ANDREW J. SCHOLZ, an attorney admitted to practice law in the Courts of the State of New York, affirms under the penalties of perjury, that the following statements are true: That I am the attorney for Defendant, MCCORD CORPORATION. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that presentation of Verified Answer of Defendant, MCCORD CORPORATION and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq. Dated: New York, NY May 3, 2021 GOLDBERG SEGALLA LLP _______________________________ Andrew J. Scholz, Esq. Attorneys for Defendant MCCORD CORPORATION 711 3rd Avenue, Suite 1900 New York, NY 10017 (646) 292-8770 - 21 - 29787321.v1 21 of 21