On January 10, 2017 a
Answer
was filed
involving a dispute between
Stacey Lynn Brown As Administratrix Of The Estate Of Steven L. Hall, Deceased,
and
Ace Hardware,
Ace Hardware Corporation,
Air & Liquid Systems Corporation, As Successor By Merger To Buffalo Pumps, Inc.,
Alfa Laval, Inc.,
Allegheny Teledyne Incorporated, Individually And As Successor To Allegheny Technologies Incorporated And Farris Valves And Or Sprague Pumps,
Amec Construction Management, Inc.,
American Biltrite, Inc., Individually And Successor To Amtico Floors,
Amtrol, Inc., Individually And As Successor To Thrush Products, Inc.,
A.O. Smith Water Products,
Armstrong International, Inc.,
Atwood & Morrill Co., Inc. D B A Weir Valves & Controls Usa Inc.,
Auburn Technology, Inc. F K A Alco Power, Inc.,
Aurora Pump Company,
Bechtel Corporation,
Blackmer Pump,
Borgwarner Morse Tec Llc,
Bw Ip International Co., Formerly Known As Borg Warner Industrial Products Inc., A Former Subsidiary Of And Successor To Borg Warner Corp. And Byron Jackson Pumps,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, F K A Viacom Inc, Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,
Certain-Teed Corporation,
Clark-Reliance Corporation, Individually And As Successor To Jerguson,
Cleaver-Brooks Company F K A Aqua-Chem, Inc.,
Courter & Company, Inc.,
Crane Co., Individually And As Successor To Cochrane,
Croll-Reynolds Engineering Company, Inc.,
Crosby Valve And Gage Company,
Crosby Valve, Inc.,
Cytec Engineered Materials, Inc. F K A Fiberite Corporation And A K A Ici Composites, Inc.,
Cytec Industries Inc., Individually And As Successor To American Cyanamid Company,
Dap, Inc. K N A La Mirada Products Co., Inc.,
Dean Pump Division,
Dezurik, Inc.,
Durez Corporation,
Duro Dyne Corporation,
E.I. Team, Inc. F K A J.L. Murphy, Inc.,
Electrolux Home Products, Inc., Individually And As Successor To Tappan And Copes-Vulcan,
Elliott Turbomachinery Co., Inc.,
Fairbanks Company,
Flowserve Us, Inc., Solely As Successor To Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. And Edward Vogt Valve Company,
Fmc Corporation, Individually And As Successor To Northern Pump Company, Coffin And Peerless Pump Company,
Foster Wheeler, Llc,
Gardner Denver, Inc.,
General Electric Company,
Genuine Partscompany,
George A. Fuller Company,
Georgia-Pacific Corporation, Individually And As Successor To Bestwall Gypsum Company,
Gg Of Florida, Inc., F K A Higbee, Inc.,
Goodall Rubber Co.,
Goulds Pumps, Inc.,
Greene, Tweed & Co., Llp, Individually And As Successor To Palmetto Packings,
Grinnell Corporation,
Henry Technologies, Inc.,
Hexion Specialty Chemicals, Inc. F K A Borden Chemical, Inc.,
Honeywell International, Inc., Individually And F K A Alliedsignal, Inc., And As Successor-In-Interest To The Bendix Corp.,
Howden Buffalo, Inc., Individually And As Successor-In-Interest To Fb Sturtevant, The Howden Buffalo Group And Buffalo Fan,
Imo Industries, Inc. F K A Delaval, Inc., Individually And As Successor To Turbine Equipment Company,
I.T.T. Industries, Inc., Individually And As Successor To Bell & Gossett,
I.T.T. Industries, Inc., Individually And As Successor To Hoffman Specialty, Bell & Gossett, And Foster Engineering,
Jenkins Bros.,
John Crane, Inc.,
Kaiser Gypsum Company, Inc.,
Koppers Company, Inc.,
Koppers Industries, Inc.,
Lighttolier Incorporated,
Maremont Corporation, Individually And As Successor To Grizzly,
Metropolitan Life Insurance Co.,
Morse Diesel, Inc.,
Morse Diesel International, Inc.,
Napa Auto Parts A K A National Automotive Parts Association,
Nash Engineering Company,
Northrop Grumman Corporation, Individually And As Successor To George A. Fuller Company,
Occidental Chemical Corporation, Individually And As Successor To Durez Corporation,
Owens-Illinois, Inc.,
Patterson Pump Company, A Subsidiary Of The Gorman-Rupp Company And Individually And As Successor To C.H. Wheeler Manufacturing And Griscom Russell,
Plastics Engineering Company, Individually And As Successor To Plenco,
Pneumo Abex Corporation,
Pneumo-Abex Llc, Individually And As Successor To Abex Corporation, A Delaware Corporation,
Progress Lighting, Inc.,
Research-Cottrell, Inc. N K A Awt Air Company, Inc.,
Riley Power, Inc. F K A Babcock Borsig Power, Inc. And F K A Riley Stoker Corporation D B A Db Riley, Inc.,
Rogers Corporation,
R.T Vanderbilt Company, Inc., Individually And As Successor To International Tale Co., International Pulp Co., And Governeur Tale Co., Inc.,
Sid Harvey Industries, Inc.,
Sid Harvey Supply, Inc.,
Spence Engineering Company, Inc.,
Spirax Sarco, Inc.,
Spx Cooling Technologies, Inc., Individually As Successor To Marley Cooling Technologies And Marley Cooling Towers,
Superior Lidgerwood Mundy Corp., A K A Lidgerwood Manufacturing Co., Individually And As Successor To M.T. Davidson Co.,
Thomas O'Connor & Company, Inc., Currently Known As O'Connor Constructors, Inc.,
Thrush Co., Inc.,
Treadwell Corporation,
Turner Construction Company,
Tuthill Corporation, Individually And As Successor To Kinney Vacuum Pump Company, Kinney Pump Company And Murray Turbine,
Tyco Flow Control, Inc., Individually And As Successor To Keystone And Grinnell Corporation,
Tyco International,
Union Carbide Corporation,
Union Pumps, As A Textron Company,
United Conveyor Corporation,
Velan Valve Corp.,
Warren Pumps, Llc, Individually And As Successor To The Quimby Pump Company,
William Powell Company,
Wolff & Munier, Inc.,
York International Corporation, Individually And As Successor To Frick Company,
Yuba Heat Transfer, A Division Of Connell Limited Partnership N K A Spx Heat Transfer Llc,
Zurn Industries, Inc. A K A And Successor-In-Interest To Erie City Iron Works,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------X
STEVEN LEROY HALL,
Index No.: 190012/17
Plaintiff,
VERIFIED ANSWER TO
- against- PLAINTIFF’S VERIFIED
COMPLAINT
A.O. SMITH WATER PRODUCTS CO., et al.,
Defendants.
-------------------------------------------------------------------X
Defendant, Rogers Corporation (hereinafter “ROGERS” or “Defendant”), by its
attorneys, Segal McCambridge Singer & Mahoney, Ltd., for its Answer to Plaintiff’s Verified
Complaint, alleges the following upon information and belief:
1. Denies all material allegations in Plaintiff’s Verified Complaint as they pertain to
ROGERS.
2. Denies knowledge or information sufficient to form a belief as to the truth of each
and every other allegation contained in Plaintiff’s Verified Complaint.
WHEREFORE, Defendant ROGERS demands dismissal of the Verified Complaint and
any and all Cross-Claims.
AFFIRMATIVE DEFENSES
In the following defenses, the use of the term “Plaintiff” shall be considered to include
both the singular and the plural, the masculine as well as the feminine, and, where appropriate,
the Plaintiff’s Decedent. Also, references to the “Complaint” shall, where applicable, include
any amendments thereto.
AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE
The Complaint fails to state a cause of action against Defendant.
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AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE
This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE
This Court lacks personal jurisdiction over Defendant.
AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE
This Court is not the proper venue for this matter.
AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE
The lawsuit was not commenced by plaintiff within the time prescribed by law and the
plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations.
AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are barred by the doctrine of laches.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE
This action cannot be maintained, as there is another action pending for the same relief.
AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE
To the extent that any injury relating to plaintiff occurred in the context of an employer-
employee relationship, claims for said injuries are preempted by the Workers’ Compensation
Act.
AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE
There is no justiciable issue or controversy.
AS AND FOR A TENTH SEPARATE AND COMPLETE DEFENSE
The claims for damages have not accrued, are purely speculative, uncertain and
contingent.
AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claim is barred under applicable state and federal law.
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AS AND FOR A TWELFTH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said
plaintiff lacks capacity and/or standing to maintain such claim for relief against Defendant.
AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff lacks the necessary standing to maintain this action.
AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff brings suit in a representative capacity, plaintiff has failed to allege
sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and
Trusts Law §5-1.1 to 5-4.6.
AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s injury was not foreseeable.
AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are barred under applicable law pursuant to public policy, since social
utility and benefit of asbestos-containing products outweighed the risk at the time of plaintiff’s
alleged exposure.
AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and
indispensable parties.
AS AND FOR AN EIGHTEENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff may not bring this action as plaintiff has failed to exhaust all of their
administrative remedies.
AS AND FOR A NINETEENTH SEPARATE AND COMPLETE DEFENSE
At all times relevant to this litigation, Defendant complied with all applicable law,
regulations and standards.
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AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE
Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver.
AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of res judicata.
AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff’s action is barred by the doctrine of preclusion.
AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of arbitration and award.
AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of discharge in bankruptcy.
AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of payment.
AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, some or all of the causes of action may not be maintained
because of release.
AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, plaintiff has made claims concerning his alleged injuries in
other matters, including but not limited to claims submitted to various trusts, which claims
foreclose plaintiff’s claims against Defendant.
AS AND FOR A TWENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
This Court lacks jurisdiction over Defendant by reason of improper service of process.
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AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE
The Complaint, and each purported cause of action stated therein, is ambiguous and
uncertain.
AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE
Economic and consequential damages are not properly recoverable in tort actions,
including actions based on negligence or strict liability.
AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE
Defendant asserts the defense of forum non-conveniens and reserves the right to seek
dismissal of the complaint.
AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE
If the plaintiff is barred from recovery, the action of his/her spouse is also barred because
it is a derivative action.
AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE
If it is determined that plaintiff used asbestos containing products or components of these
products and it is determined that said products or components were sold by or on behalf of the
United States of America, then Defendant is entitled to any sovereign or governmental immunity
available to the United States of America.
AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiff voluntarily assumed the risk of injury.
AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE
If plaintiff sustained damages as alleged, such damages occurred while plaintiff engaged
in activities into which plaintiff entered, knowing the hazard, risk and danger of the activities and
they assumed the risks incidental to and attendant to the activities.
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AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Plaintiff was a sophisticated user and was fully aware of any and all potentially
dangerous conditions.
AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
No acts or omissions of Defendant proximately caused plaintiff’s damages.
AS AND FOR A THIRTY- EIGHTH SEPARATE AND COMPLETE DEFENSE
To the extent plaintiff was exposed to any product containing asbestos as a result of
conduct by Defendant, which is denied, said exposure was de minimis and not a substantial
contributing factor to any asbestos-related disease which plaintiff may have developed, such that
plaintiff’s claim is not actionable at law or equity.
AS AND FOR A THIRTY- NINTH SEPARATE AND COMPLETE DEFENSE
Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to
be insufficient as a matter of law to enable plaintiff to establish to 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 FORTIETH SEPARATE AND COMPLETE DEFENSE
Finished or otherwise encapsulated asbestos-containing products are not unreasonably
dangerous as a matter of law.
AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE
At all times, Defendant acted reasonably and with due care toward plaintiff. Defendant
was not negligent, reckless, did not engage in misconduct or willful misconduct and did not act
with wanton disregard for the rights, safety, and position of plaintiff or any other person.
AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff, which Defendant denies, were not caused
by any product manufactured, sold, distributed, supplied or installed by Defendant.
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AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, by the
negligence or other culpable conduct of plaintiff and/or one or more persons or instrumentalities
over which Defendant had no control and with whom it had no legal relationship, which conduct
constituted a supervening cause of plaintiff’s alleged injuries.
AS AND FOR AN FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE
The damages allegedly sustained by plaintiff were caused, in whole or in part, through
unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of plaintiff’s
bodily composition and consequential unforeseeable reaction to the product, if any, and/or one or
more of its components, if any.
AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Defendant was under no duty to warn purchasers, their employees, other independent
contractors, or those under their control. If such warning was required, purchaser or plaintiff’s
employer owed a duty to warn and their failure to do so was a superseding proximate cause of
injury.
AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Defendant denies that there was any defect and/or negligence in the mining, processing,
manufacture, designing, testing, investigation, fashioning, packaging, distribution, delivery,
and/or sale, in any asbestos product or material referred to in plaintiff’s Complaint, but if there
was any defect or negligence as alleged, then the Defendant is not liable as it justifiably relied
upon inspection by others in the regular course of trade and business, and their failure constitutes
a superseding proximate cause of any alleged injury suffered by plaintiffs.
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AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims are completely barred or diminished pursuant to the doctrine of
comparative negligence.
AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Any damages which plaintiff sustained resulted solely from plaintiff’s own negligence.
AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiffs rely upon allegations of negligence, breach of warranty,
fraudulent representation and strict products liability as against Defendant prior to September 1,
1975, the Verified Complaint fails to state a cause of action against [Client by reason of its
failure to allege the freedom of plaintiffs from contributory negligence. Insofar as the Verified
Compliant, and each cause of action considered separately, alleges 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 the
plaintiffs, including contributory negligence and assumption of risk, in the proportion which the
culpable conduct attributable to the plaintiffs bears on the culpable conduct which caused the
damages.
AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE
If Defendant was on notice of any hazard or defect for which plaintiff seeks relief, which
Defendant denies, plaintiff also had such notice of the existing hazard at or about the same time
as Defendant, and is thereby is barred from recovery.
AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE
Plaintiff was warned of risk of exposure to use of asbestos-containing materials and
failed to take necessary or recommended precautions to prevent against the risk of injury.
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AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of
tobacco products and/or other substances, products, medications or drugs.
AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE
Plaintiff failed to provide any timely notice to Defendant of any alleged defect in any
product which Defendant allegedly supplied or manufactured.
AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Any product sold, manufactured, marketed or distributed by Defendant was in all respects
fit and suitable for its intended and reasonably foreseeable uses and was not in a defective or
dangerous condition when it left Defendant’s possession and control.
AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Any asbestos products sold or used by Defendant were not inherently defective, unsafe,
ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful and were
not incorrectly packaged.
AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE
At the time any product left Defendant’s control, there was no practical and/or technically
feasible safer alternative design that would have prevented the harm without substantially
impairing the reasonably anticipated and intended function of that product.
AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Defendant did not have a duty to test any asbestos products which it might have sold,
used or received from a third party.
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AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Any asbestos-containing product sold by Defendant or used in conjunction with products
sold by Defendant that may have been present at plaintiff’s job locations were installed or
configured on the basis of the specifications, approval or at the instruction of governmental or
legislative agencies or other regulatory bodies.
AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE
Any asbestos-containing product sold by Defendant or used in conjunction with products
sold by Defendant that may have been present at plaintiff’s job locations were installed or
configured on the basis of the specifications, approval or at the instruction plaintiff’s employers.
AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiff alleges exposure to products manufactured by Defendant for a
government or shipyard contract, the government had a contractual right to specify how the
contract would be complied with, the government exercised that right, and Defendant complied
with those specifications.
AS AND FOR A SIXTY-FIRST SEPARATE AND COMPLETE DEFENSE
The damages sustained by plaintiff arising from his alleged exposure to asbestos-
containing products while working on or near the equipment or other product allegedly
manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the
improper use and operation of the Product, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
of the Product by Defendant.
AS AND FOR A SIXTY-SECOND SEPARATE AND COMPLETE DEFENSE
The damages sustained by the plaintiff which allegedly arose from the product were
caused by its alteration, misuse and/or improper maintenance by one or more persons or
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instrumentalities other than Defendant, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
of the product by Defendant.
AS AND FOR A SIXTY-THIRD SEPARATE AND COMPLETE DEFENSE
At all times and places mentioned in the Complaint, the plaintiff and/or other persons
used this Defendant’s products, if indeed any were used, in any unreasonable manner, not
reasonably foreseeable to this Defendant, and for a purpose for which the products were not
intended, manufactured, or designed; plaintiff’s injuries and damages, if any, were directly and
proximately caused by said misuse and abuse, and plaintiff’s recovery herein, if any is barred or
must be diminished in proportion to the fault attributable to the plaintiffs and/or such other
parties and person.
AS AND FOR A SIXTY-FOURTH SEPARATE AND COMPLETE DEFENSE
“Market share” or “enterprise” liability doctrine does not apply to this action. Defendant
is not liable under any such theory.
AS AND FOR A SIXTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the
Complaint.
AS AND FOR A SIXTY-SIXTH SEPARATE AND COMPETE DEFENSE
Any alleged liability of Defendant must be reduced by operation of GOL § 15-108.
AS AND FOR A SIXTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be found to
be 50% or less of the total liability assigned to all parties liable, then Defendant’s liability to
plaintiff for non-economic loss shall be limited to said Defendant’s equitable share, as
determined in accordance with the relative culpability of each party causing or contributing to
the total liability for non-economic loss of plaintiff.
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AS AND FOR A SIXTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
In the event that plaintiff succeeds in establishing that any conduct of Defendant caused
or contributed to the injuries which plaintiff alleges, any damages awarded against Defendant
must be reduced pro tanto by any workmen’s compensation to which the plaintiff is or may be
entitled under the applicable statutes.
AS AND FOR A SIXTY-NINTH SEPARATE AND COMPLETE DEFENSE
Upon information and belief, plaintiff’s economic loss, if any, as specified in §4545 of
the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral sources,
and the answering Defendant is entitled to have the Court consider the same in determining such
special damages as provided in §4545 of the CPLR.
AS AND FOR A SEVENTIETH SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiff sustained injuries from the use of a product sold by Defendant
that is alleged to have contained asbestos, which is denied, plaintiff, plaintiff’s decedents, other
defendants or other parties not under the control of Defendant misused, abused, misapplied and
otherwise mishandled the part of the product alleged to have been asbestos material. Therefore,
the amount of damages must be diminished by the proportion, which said misuse, abuse,
misapplication and mishandling bears to the conduct, which allegedly caused plaintiff’s damage
or injury.
AS AND FOR A SEVENTY-FIRST SEPARATE AND COMPLETE DEFENSE
In the event it should be proven at the time of trial that all defendants are subject to
market share liability, then Defendant’s share of such liability would be of such a de minimis
amount as to make its contribution for damages negligible, and Defendant would be entitled to
contribution, either in whole or in part, and/or indemnification from co-defendants.
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AS AND FOR A SEVENTY-SECOND SEPARATE AND COMPLETE DEFENSE
All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
1986) are time-barred in that said statute is in violation of the Constitution of the United States
and the Constitution of the State of New York.
AS AND FOR A SEVENTY-THIRD SEPARATE AND COMPLETE DEFENSE
To the extent that plaintiff is unable to identify any manufacturer of any product which
allegedly caused his injuries, plaintiff cannot state a claim upon which relief may be granted
because that failure would violate Defendant’s constitutional rights: (1) to substantive and
procedural due process of law and equal protection guaranteed by the Fourteenth Amendment of
the United States Constitution and the New York Constitution; and (2) protection against the
taking of private property for public use without just compensation guaranteed by the Fourteenth
Amendment of the United States Constitution and by the New York Constitution.
AS AND FOR A SEVENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
At all times relevant to this litigation, the agents, servants and/or employees of Defendant
utilized proper methods in the conduct of its operations, in conformity with the available
knowledge and research of the scientific, industrial and medical communities, and thereby
complied with the state of the art existing at all relevant times. In the event that any product
manufactured or supplied by Defendant is determined to have been dangerous, Defendant was
unaware of that danger and discovery of it was beyond the state of the art at that time.
AS AND FOR A SEVENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
Products or materials manufactured, designed, sold, distributed, supplied and/or utilized
by this answering Defendant were accompanied by adequate warnings which were in conformity
with the existing state of the art in regard to the foreseeable use of said products or materials.
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AS AND FOR A SEVENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Defendant is not liable for the damages allegedly sustained by plaintiff because plaintiff
is not in privity of contract with Defendant at any time and the product was not inherently
dangerous.
AS AND FOR A SEVENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
No implied warranties, including the warranties of merchantability and fitness for a
particular purpose, became a part of the basis of the bargain in the sale of the product.
AS AND FOR A SEVENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the
provisions of the applicable Statute of Frauds.
AS AND FOR A SEVENTY-NINTH SEPARATE AND COMPLETE DEFENSE
Plaintiff did not directly or indirectly purchase any asbestos-containing products from
Defendant and, therefore, was not the recipient of an express or implied warranty made by
Defendant.
AS AND FOR AN EIGHTIETH SEPARATE AND COMPLETE DEFENSE
Defendant breached no warranties, express or implied.
AS AND FOR AN EIGHTY-FIRST SEPARATE AND COMPLETE DEFENSE
Any breach of warranty claim is barred by written disclaimers and exclusions on the
labels of the subject products.
AS AND FOR AN EIGHTY-SECOND SEPARATE AND COMPLETE DEFENSE
Plaintiff did not reasonably and justifiably rely on any alleged representations or
warranties – express or implied.
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AS AND FOR AN EIGHTY-THIRD SEPARATE AND COMPLETE DEFENSE
Plaintiff’s claims if based upon the allegations of express or implied warranty are barred
because no sale of goods occurred.
AS AND FOR AN EIGHTY-FOURTH SEPARATE AND COMPLETE DEFENSE
Plaintiff and all third-party beneficiaries of any warranties, express or implied, relating to
Defendant’s product or services failed to provide notice of the alleged breaches of pursuant to
the applicable provision of the Uniform Commercial Code.
AS AND FOR AN EIGHTY-FIFTH SEPARATE AND COMPLETE DEFENSE
The concept of strict liability does not apply to this litigation.
AS AND FOR AN EIGHTY-SIXTH SEPARATE AND COMPLETE DEFENSE
Defendant denies that the asbestos products alleged in plaintiff’s Complaint are products
within the meaning and scope of the Restatement of Torts Section 402A and as such the
Complaint fails to state a cause of action in strict liability.
AS AND FOR AN EIGHTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Defendant cannot be held liable under principles of strict tort liability because products
manufactured and/or products which left Defendant’s possession did so prior to the enactment of
New York’s law regarding strict liability.
AS AND FOR AN EIGHTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s cause of action for exemplary or punitive damages is barred because such
damages are not recoverable under applicable law or otherwise unwarranted in this action.
AS AND FOR AN EIGHTY-NINTH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s demands for punitive damages are barred by the due process clauses of the
Fourteenth Amendment to the United States Constitution and the New York State Constitution.
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AS AND FOR A NINETIETH SEPARATE AND COMPLETE DEFENSE
Plaintiff’s demands for punitive damages are barred by the proscription of the Eighth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the
imposition of excessive fines.
AS AND FOR A NINETY-FIRST SEPARATE AND COMPLETE DEFENSE
Plaintiff’s demands for punitive damages are barred by the “double jeopardy” clause of
the Fifth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
AS AND FOR A NINETY-SECOND SEPARATE AND COMPLETE DEFENSE
Punitive damages cannot be awarded against this Defendant for any of the alleged actions
or omissions of any of this Defendant’s predecessors because there is not a sufficient degree of
identity between this Defendant and any of its predecessors to justify such an award.
AS AND FOR A NINETY-THIRD SEPARATE AND COMPLETE DEFENSE
Defendant did not take part in and was not part of or party to any conspiracy.
AS AND FOR A NINETY-FOURTH SEPARATE AND COMPLETE DEFENSE
Defendant did not make any misrepresentation and/or commit any fraudulent acts.
AS AND FOR A NINETY-FIFTH SEPARATE AND COMPLETE DEFENSE
Defendant did not distort or cause to be distorted any medical examinations, results or
data, did not edit or alter medical literature, did not attempt to prevent the publication of medical
literature and did not distort or cause to be distorted medical information.
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AS AND FOR A NINETY-SIXTH SEPARATE AND COMPLETE DEFENSE
If plaintiffs have received, or are now or subsequently become entitled to recover, any
compensation or benefits from any source in connection with the harm alleged in the Complaint,
including economic and non-economic loss, the amount of damages, if any, that may be
recoverable in this civil action must be diminished by the amount of such recovery,
compensation and/or benefits.
AS AND FOR A NINETY-SEVENTH SEPARATE AND COMPLETE DEFENSE
Defendant alleges that plaintiff and/or his agents negligently or intentionally failed to
preserve and permitted the spoliation of material evidence including but not limited to the
products which plaintiff alleges give rise to his complaint. Such conduct bars plaintiff’s action
and/or gives rise to evidentiary sanctions against plaintiff and/or other remedies for this
defendant.
AS AND FOR A NINETY-EIGHTH SEPARATE AND COMPLETE DEFENSE
The Order of the Bankruptcy Court, which prevents Defendant from joining
indispensable parties who have declared bankruptcy, has the effect of requiring this defendant to
defend this action without those other parties as co-defendants and prevents the Court from being
able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore denies
this defendant its constitutional right to due process under the Fourteenth Amendment of the
United States Constitution.
AS AND FOR A NINETY-NINTH SEPARATE AND COMPLETE DEFENSE
Plaintiffs may not pursue the claim for loss of consortium pursuant to the matter of
Consorti v. Owens-Corning, 86 N.Y.2d 449 (1995).
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AS AND FOR A ONE-HUNDREDTH SEPARATE AND COMPLETE DEFENSE
All defenses which have been or will be asserted by other defendants and/or any third-
party defendants in this action are adopted and incorporated by reference as if fully set forth at
length herein as defenses to plaintiff’s Complaint. In addition, Defendant will rely upon any and
all other further defenses which become available or appear during discovery proceedings in this
action and hereby specifically reserves the right to amend its answer for the purposes of asserting
any such additional defenses.
AS AND FOR A ONE HUNDREDTH AND FIRST
SEPARATE AND COMPLETE DEFENSE
Defendant denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in any subsequent pleading as to parties other than Defendant, and denies
the truth of each and every allegation contained therein as they purport to pertain to Defendant.
AS AND FOR A ONE HUNDREDTH AND SECOND
SEPARATE AND COMPLETE DEFENSE
If plaintiff sustained injuries in the manner alleged, all of which is denied by this
Defendant, the liability of Defendant, if any, shall be limited in accordance with Article 14-A of
the Civil Practice Law and Rules.
AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS FOR
INDEMNIFICATION
1. ROGERS alleges that if Plaintiffs are able to prove the existence and cause of any
injuries as alleged in Plaintiffs’ Verified Complaint, such injuries were caused solely as a result
of the negligence, carelessness, recklessness, strict liability, breach of warranty, breach of
contract or other agreements and/or affirmative acts of one or more of the Co-Defendants in this
matter and was not due to any culpable conduct by ROGERS.
2. If Plaintiffs recover judgment and/or verdict against Defendant, ROGERS, such
recovery will have come about solely due to the negligence, carelessness, recklessness, strict
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liability, breach of contract or other agreements and/or affirmative acts of the Co-Defendants, as
stated above, and not due to any culpable conduct on the part of ROGERS.
3. Co-Defendants are liable to Defendant, ROGERS for indemnification under
common law and/or contract or other agreements for any and all of the judgment and/or verdict
that the Plaintiffs may recover from this Defendant, ROGERS.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS FOR
CONTRIBUTION
If Plaintiffs r
Preview
FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X STEVEN LEROY HALL, Index No.: 190012/17 Plaintiff, VERIFIED ANSWER TO - against- PLAINTIFF’S VERIFIED COMPLAINT A.O. SMITH WATER PRODUCTS CO., et al., Defendants. -------------------------------------------------------------------X Defendant, Rogers Corporation (hereinafter “ROGERS” or “Defendant”), by its attorneys, Segal McCambridge Singer & Mahoney, Ltd., for its Answer to Plaintiff’s Verified Complaint, alleges the following upon information and belief: 1. Denies all material allegations in Plaintiff’s Verified Complaint as they pertain to ROGERS. 2. Denies knowledge or information sufficient to form a belief as to the truth of each and every other allegation contained in Plaintiff’s Verified Complaint. WHEREFORE, Defendant ROGERS demands dismissal of the Verified Complaint and any and all Cross-Claims. AFFIRMATIVE DEFENSES In the following defenses, the use of the term “Plaintiff” shall be considered to include both the singular and the plural, the masculine as well as the feminine, and, where appropriate, the Plaintiff’s Decedent. Also, references to the “Complaint” shall, where applicable, include any amendments thereto. AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE The Complaint fails to state a cause of action against Defendant. 1 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE This Court lacks jurisdiction over the subject matter of this action. AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE This Court lacks personal jurisdiction over Defendant. AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE This Court is not the proper venue for this matter. AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE The lawsuit was not commenced by plaintiff within the time prescribed by law and the plaintiff, therefore, is barred from recovery pursuant to applicable statutes of limitations. AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s claims are barred by the doctrine of laches. AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE This action cannot be maintained, as there is another action pending for the same relief. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE To the extent that any injury relating to plaintiff occurred in the context of an employer- employee relationship, claims for said injuries are preempted by the Workers’ Compensation Act. AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE There is no justiciable issue or controversy. AS AND FOR A TENTH SEPARATE AND COMPLETE DEFENSE The claims for damages have not accrued, are purely speculative, uncertain and contingent. AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s claim is barred under applicable state and federal law. 2 2 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A TWELFTH SEPARATE AND COMPLETE DEFENSE To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said plaintiff lacks capacity and/or standing to maintain such claim for relief against Defendant. AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE Plaintiff lacks the necessary standing to maintain this action. AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE To the extent plaintiff brings suit in a representative capacity, plaintiff has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law §5-1.1 to 5-4.6. AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s injury was not foreseeable. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s claims are barred under applicable law pursuant to public policy, since social utility and benefit of asbestos-containing products outweighed the risk at the time of plaintiff’s alleged exposure. AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s claims are barred because of plaintiff’s failure to join necessary and indispensable parties. AS AND FOR AN EIGHTEENTH SEPARATE AND COMPLETE DEFENSE Plaintiff may not bring this action as plaintiff has failed to exhaust all of their administrative remedies. AS AND FOR A NINETEENTH SEPARATE AND COMPLETE DEFENSE At all times relevant to this litigation, Defendant complied with all applicable law, regulations and standards. 3 3 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver. AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE Plaintiff’s action is barred by the doctrine of preclusion. AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of arbitration and award. AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of discharge in bankruptcy. AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of payment. AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, some or all of the causes of action may not be maintained because of release. AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, plaintiff has made claims concerning his alleged injuries in other matters, including but not limited to claims submitted to various trusts, which claims foreclose plaintiff’s claims against Defendant. AS AND FOR A TWENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE This Court lacks jurisdiction over Defendant by reason of improper service of process. 4 4 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE The Complaint, and each purported cause of action stated therein, is ambiguous and uncertain. AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE Economic and consequential damages are not properly recoverable in tort actions, including actions based on negligence or strict liability. AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE Defendant asserts the defense of forum non-conveniens and reserves the right to seek dismissal of the complaint. AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE If the plaintiff is barred from recovery, the action of his/her spouse is also barred because it is a derivative action. AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE If it is determined that plaintiff used asbestos containing products or components of these products and it is determined that said products or components were sold by or on behalf of the United States of America, then Defendant is entitled to any sovereign or governmental immunity available to the United States of America. AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE Plaintiff voluntarily assumed the risk of injury. AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE If plaintiff sustained damages as alleged, such damages occurred while plaintiff engaged in activities into which plaintiff entered, knowing the hazard, risk and danger of the activities and they assumed the risks incidental to and attendant to the activities. 5 5 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE Plaintiff was a sophisticated user and was fully aware of any and all potentially dangerous conditions. AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE No acts or omissions of Defendant proximately caused plaintiff’s damages. AS AND FOR A THIRTY- EIGHTH SEPARATE AND COMPLETE DEFENSE To the extent plaintiff was exposed to any product containing asbestos as a result of conduct by Defendant, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which plaintiff may have developed, such that plaintiff’s claim is not actionable at law or equity. AS AND FOR A THIRTY- NINTH SEPARATE AND COMPLETE DEFENSE Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to be insufficient as a matter of law to enable plaintiff to establish to 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 FORTIETH SEPARATE AND COMPLETE DEFENSE Finished or otherwise encapsulated asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE At all times, Defendant acted reasonably and with due care toward plaintiff. Defendant was not negligent, reckless, did not engage in misconduct or willful misconduct and did not act with wanton disregard for the rights, safety, and position of plaintiff or any other person. AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff, which Defendant denies, were not caused by any product manufactured, sold, distributed, supplied or installed by Defendant. 6 6 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of plaintiff and/or one or more persons or instrumentalities over which Defendant had no control and with whom it had no legal relationship, which conduct constituted a supervening cause of plaintiff’s alleged injuries. AS AND FOR AN FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE The damages allegedly sustained by plaintiff were caused, in whole or in part, through unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of plaintiff’s bodily composition and consequential unforeseeable reaction to the product, if any, and/or one or more of its components, if any. AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE Defendant was under no duty to warn purchasers, their employees, other independent contractors, or those under their control. If such warning was required, purchaser or plaintiff’s employer owed a duty to warn and their failure to do so was a superseding proximate cause of injury. AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE Defendant denies that there was any defect and/or negligence in the mining, processing, manufacture, designing, testing, investigation, fashioning, packaging, distribution, delivery, and/or sale, in any asbestos product or material referred to in plaintiff’s Complaint, but if there was any defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by others in the regular course of trade and business, and their failure constitutes a superseding proximate cause of any alleged injury suffered by plaintiffs. 7 7 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s claims are completely barred or diminished pursuant to the doctrine of comparative negligence. AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE Any damages which plaintiff sustained resulted solely from plaintiff’s own negligence. AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE To the extent that plaintiffs rely upon allegations of negligence, breach of warranty, fraudulent representation and strict products liability as against Defendant prior to September 1, 1975, the Verified Complaint fails to state a cause of action against [Client by reason of its failure to allege the freedom of plaintiffs from contributory negligence. Insofar as the Verified Compliant, and each cause of action considered separately, alleges 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 the plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to the plaintiffs bears on the culpable conduct which caused the damages. AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE If Defendant was on notice of any hazard or defect for which plaintiff seeks relief, which Defendant denies, plaintiff also had such notice of the existing hazard at or about the same time as Defendant, and is thereby is barred from recovery. AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE Plaintiff was warned of risk of exposure to use of asbestos-containing materials and failed to take necessary or recommended precautions to prevent against the risk of injury. 8 8 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE Plaintiff contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE Plaintiff failed to provide any timely notice to Defendant of any alleged defect in any product which Defendant allegedly supplied or manufactured. AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE Any product sold, manufactured, marketed or distributed by Defendant was in all respects fit and suitable for its intended and reasonably foreseeable uses and was not in a defective or dangerous condition when it left Defendant’s possession and control. AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE Any asbestos products sold or used by Defendant were not inherently defective, unsafe, ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful and were not incorrectly packaged. AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE At the time any product left Defendant’s control, there was no practical and/or technically feasible safer alternative design that would have prevented the harm without substantially impairing the reasonably anticipated and intended function of that product. AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Defendant did not have a duty to test any asbestos products which it might have sold, used or received from a third party. 9 9 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE Any asbestos-containing product sold by Defendant or used in conjunction with products sold by Defendant that may have been present at plaintiff’s job locations were installed or configured on the basis of the specifications, approval or at the instruction of governmental or legislative agencies or other regulatory bodies. AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE Any asbestos-containing product sold by Defendant or used in conjunction with products sold by Defendant that may have been present at plaintiff’s job locations were installed or configured on the basis of the specifications, approval or at the instruction plaintiff’s employers. AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE To the extent that plaintiff alleges exposure to products manufactured by Defendant for a government or shipyard contract, the government had a contractual right to specify how the contract would be complied with, the government exercised that right, and Defendant complied with those specifications. AS AND FOR A SIXTY-FIRST SEPARATE AND COMPLETE DEFENSE The damages sustained by plaintiff arising from his alleged exposure to asbestos- containing products while working on or near the equipment or other product allegedly manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the improper use and operation of the Product, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Product by Defendant. AS AND FOR A SIXTY-SECOND SEPARATE AND COMPLETE DEFENSE The damages sustained by the plaintiff which allegedly arose from the product were caused by its alteration, misuse and/or improper maintenance by one or more persons or 10 10 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 instrumentalities other than Defendant, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the product by Defendant. AS AND FOR A SIXTY-THIRD SEPARATE AND COMPLETE DEFENSE At all times and places mentioned in the Complaint, the plaintiff and/or other persons used this Defendant’s products, if indeed any were used, in any unreasonable manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended, manufactured, or designed; plaintiff’s injuries and damages, if any, were directly and proximately caused by said misuse and abuse, and plaintiff’s recovery herein, if any is barred or must be diminished in proportion to the fault attributable to the plaintiffs and/or such other parties and person. AS AND FOR A SIXTY-FOURTH SEPARATE AND COMPLETE DEFENSE “Market share” or “enterprise” liability doctrine does not apply to this action. Defendant is not liable under any such theory. AS AND FOR A SIXTY-FIFTH SEPARATE AND COMPLETE DEFENSE Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Complaint. AS AND FOR A SIXTY-SIXTH SEPARATE AND COMPETE DEFENSE Any alleged liability of Defendant must be reduced by operation of GOL § 15-108. AS AND FOR A SIXTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be found to be 50% or less of the total liability assigned to all parties liable, then Defendant’s liability to plaintiff for non-economic loss shall be limited to said Defendant’s equitable share, as determined in accordance with the relative culpability of each party causing or contributing to the total liability for non-economic loss of plaintiff. 11 11 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A SIXTY-EIGHTH SEPARATE AND COMPLETE DEFENSE In the event that plaintiff succeeds in establishing that any conduct of Defendant caused or contributed to the injuries which plaintiff alleges, any damages awarded against Defendant must be reduced pro tanto by any workmen’s compensation to which the plaintiff is or may be entitled under the applicable statutes. AS AND FOR A SIXTY-NINTH SEPARATE AND COMPLETE DEFENSE Upon information and belief, plaintiff’s economic loss, if any, as specified in §4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral sources, and the answering Defendant is entitled to have the Court consider the same in determining such special damages as provided in §4545 of the CPLR. AS AND FOR A SEVENTIETH SEPARATE AND COMPLETE DEFENSE To the extent that plaintiff sustained injuries from the use of a product sold by Defendant that is alleged to have contained asbestos, which is denied, plaintiff, plaintiff’s decedents, other defendants or other parties not under the control of Defendant misused, abused, misapplied and otherwise mishandled the part of the product alleged to have been asbestos material. Therefore, the amount of damages must be diminished by the proportion, which said misuse, abuse, misapplication and mishandling bears to the conduct, which allegedly caused plaintiff’s damage or injury. AS AND FOR A SEVENTY-FIRST SEPARATE AND COMPLETE DEFENSE In the event it should be proven at the time of trial that all defendants are subject to market share liability, then Defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and Defendant would be entitled to contribution, either in whole or in part, and/or indemnification from co-defendants. 12 12 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A SEVENTY-SECOND SEPARATE AND COMPLETE DEFENSE All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A SEVENTY-THIRD SEPARATE AND COMPLETE DEFENSE To the extent that plaintiff is unable to identify any manufacturer of any product which allegedly caused his injuries, plaintiff cannot state a claim upon which relief may be granted because that failure would violate Defendant’s constitutional rights: (1) to substantive and procedural due process of law and equal protection guaranteed by the Fourteenth Amendment of the United States Constitution and the New York Constitution; and (2) protection against the taking of private property for public use without just compensation guaranteed by the Fourteenth Amendment of the United States Constitution and by the New York Constitution. AS AND FOR A SEVENTY-FOURTH SEPARATE AND COMPLETE DEFENSE At all times relevant to this litigation, the agents, servants and/or employees of Defendant utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific, industrial and medical communities, and thereby complied with the state of the art existing at all relevant times. In the event that any product manufactured or supplied by Defendant is determined to have been dangerous, Defendant was unaware of that danger and discovery of it was beyond the state of the art at that time. AS AND FOR A SEVENTY-FIFTH SEPARATE AND COMPLETE DEFENSE Products or materials manufactured, designed, sold, distributed, supplied and/or utilized by this answering Defendant were accompanied by adequate warnings which were in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. 13 13 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A SEVENTY-SIXTH SEPARATE AND COMPLETE DEFENSE Defendant is not liable for the damages allegedly sustained by plaintiff because plaintiff is not in privity of contract with Defendant at any time and the product was not inherently dangerous. AS AND FOR A SEVENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the product. AS AND FOR A SEVENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE Oral warranties upon which plaintiff allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A SEVENTY-NINTH SEPARATE AND COMPLETE DEFENSE Plaintiff did not directly or indirectly purchase any asbestos-containing products from Defendant and, therefore, was not the recipient of an express or implied warranty made by Defendant. AS AND FOR AN EIGHTIETH SEPARATE AND COMPLETE DEFENSE Defendant breached no warranties, express or implied. AS AND FOR AN EIGHTY-FIRST SEPARATE AND COMPLETE DEFENSE Any breach of warranty claim is barred by written disclaimers and exclusions on the labels of the subject products. AS AND FOR AN EIGHTY-SECOND SEPARATE AND COMPLETE DEFENSE Plaintiff did not reasonably and justifiably rely on any alleged representations or warranties – express or implied. 14 14 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR AN EIGHTY-THIRD SEPARATE AND COMPLETE DEFENSE Plaintiff’s claims if based upon the allegations of express or implied warranty are barred because no sale of goods occurred. AS AND FOR AN EIGHTY-FOURTH SEPARATE AND COMPLETE DEFENSE Plaintiff and all third-party beneficiaries of any warranties, express or implied, relating to Defendant’s product or services failed to provide notice of the alleged breaches of pursuant to the applicable provision of the Uniform Commercial Code. AS AND FOR AN EIGHTY-FIFTH SEPARATE AND COMPLETE DEFENSE The concept of strict liability does not apply to this litigation. AS AND FOR AN EIGHTY-SIXTH SEPARATE AND COMPLETE DEFENSE Defendant denies that the asbestos products alleged in plaintiff’s Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and as such the Complaint fails to state a cause of action in strict liability. AS AND FOR AN EIGHTY-SEVENTH SEPARATE AND COMPLETE DEFENSE Defendant cannot be held liable under principles of strict tort liability because products manufactured and/or products which left Defendant’s possession did so prior to the enactment of New York’s law regarding strict liability. AS AND FOR AN EIGHTY-EIGHTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s cause of action for exemplary or punitive damages is barred because such damages are not recoverable under applicable law or otherwise unwarranted in this action. AS AND FOR AN EIGHTY-NINTH SEPARATE AND COMPLETE DEFENSE Plaintiff’s demands for punitive damages are barred by the due process clauses of the Fourteenth Amendment to the United States Constitution and the New York State Constitution. 15 15 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A NINETIETH SEPARATE AND COMPLETE DEFENSE Plaintiff’s demands for punitive damages are barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A NINETY-FIRST SEPARATE AND COMPLETE DEFENSE Plaintiff’s demands for punitive damages are barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. AS AND FOR A NINETY-SECOND SEPARATE AND COMPLETE DEFENSE Punitive damages cannot be awarded against this Defendant for any of the alleged actions or omissions of any of this Defendant’s predecessors because there is not a sufficient degree of identity between this Defendant and any of its predecessors to justify such an award. AS AND FOR A NINETY-THIRD SEPARATE AND COMPLETE DEFENSE Defendant did not take part in and was not part of or party to any conspiracy. AS AND FOR A NINETY-FOURTH SEPARATE AND COMPLETE DEFENSE Defendant did not make any misrepresentation and/or commit any fraudulent acts. AS AND FOR A NINETY-FIFTH SEPARATE AND COMPLETE DEFENSE Defendant did not distort or cause to be distorted any medical examinations, results or data, did not edit or alter medical literature, did not attempt to prevent the publication of medical literature and did not distort or cause to be distorted medical information. 16 16 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A NINETY-SIXTH SEPARATE AND COMPLETE DEFENSE If plaintiffs have received, or are now or subsequently become entitled to recover, any compensation or benefits from any source in connection with the harm alleged in the Complaint, including economic and non-economic loss, the amount of damages, if any, that may be recoverable in this civil action must be diminished by the amount of such recovery, compensation and/or benefits. AS AND FOR A NINETY-SEVENTH SEPARATE AND COMPLETE DEFENSE Defendant alleges that plaintiff and/or his agents negligently or intentionally failed to preserve and permitted the spoliation of material evidence including but not limited to the products which plaintiff alleges give rise to his complaint. Such conduct bars plaintiff’s action and/or gives rise to evidentiary sanctions against plaintiff and/or other remedies for this defendant. AS AND FOR A NINETY-EIGHTH SEPARATE AND COMPLETE DEFENSE The Order of the Bankruptcy Court, which prevents Defendant from joining indispensable parties who have declared bankruptcy, has the effect of requiring this defendant to defend this action without those other parties as co-defendants and prevents the Court from being able to hear and adjudge all relevant evidence in regard to plaintiffs’ claims and therefore denies this defendant its constitutional right to due process under the Fourteenth Amendment of the United States Constitution. AS AND FOR A NINETY-NINTH SEPARATE AND COMPLETE DEFENSE Plaintiffs may not pursue the claim for loss of consortium pursuant to the matter of Consorti v. Owens-Corning, 86 N.Y.2d 449 (1995). 17 17 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 AS AND FOR A ONE-HUNDREDTH SEPARATE AND COMPLETE DEFENSE All defenses which have been or will be asserted by other defendants and/or any third- party defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to plaintiff’s Complaint. In addition, Defendant will rely upon any and all other further defenses which become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend its answer for the purposes of asserting any such additional defenses. AS AND FOR A ONE HUNDREDTH AND FIRST SEPARATE AND COMPLETE DEFENSE Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in any subsequent pleading as to parties other than Defendant, and denies the truth of each and every allegation contained therein as they purport to pertain to Defendant. AS AND FOR A ONE HUNDREDTH AND SECOND SEPARATE AND COMPLETE DEFENSE If plaintiff sustained injuries in the manner alleged, all of which is denied by this Defendant, the liability of Defendant, if any, shall be limited in accordance with Article 14-A of the Civil Practice Law and Rules. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS FOR INDEMNIFICATION 1. ROGERS alleges that if Plaintiffs are able to prove the existence and cause of any injuries as alleged in Plaintiffs’ Verified Complaint, such injuries were caused solely as a result of the negligence, carelessness, recklessness, strict liability, breach of warranty, breach of contract or other agreements and/or affirmative acts of one or more of the Co-Defendants in this matter and was not due to any culpable conduct by ROGERS. 2. If Plaintiffs recover judgment and/or verdict against Defendant, ROGERS, such recovery will have come about solely due to the negligence, carelessness, recklessness, strict 18 18 of 20 FILED: NEW YORK COUNTY CLERK 02/07/2017 10:23 AM INDEX NO. 190012/2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2017 liability, breach of contract or other agreements and/or affirmative acts of the Co-Defendants, as stated above, and not due to any culpable conduct on the part of ROGERS. 3. Co-Defendants are liable to Defendant, ROGERS for indemnification under common law and/or contract or other agreements for any and all of the judgment and/or verdict that the Plaintiffs may recover from this Defendant, ROGERS. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS FOR CONTRIBUTION If Plaintiffs r