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
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COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------x ASBESTOS MASTER
IN RE: NEW YORK CITY NYCAL
ASBESTOS LITIGATION
-----------------------------------------------------------------x
STEVEN LEROY HALL, Index No. 190012-17
Plaintiff, VERIFIED ANSWER TO
PLAINTIFF’S VERIFIED COMPLAINT,
-against- AFFIRMATIVE DEFENSES
AND CROSS-CLAIMS OF
A.O. SMITH WATER PRODUCTS, et al., DEFENDANT PNEUMO ABEX LLC
Defendants.
-----------------------------------------------------------------x
Defendant, Pneumo Abex LLC, successor in interest to Abex Corporation, incorrectly sued
herein as “PNEUMO ABEX CORPORATION,” (hereinafter “Abex”), by its attorneys, Hawkins
Parnell Thackston & Young LLP, hereby answers Plaintiff’s Verified Complaint (hereinafter
“Complaint”), as follows:
THE PARTIES
1. Abex denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph 1 of the Complaint.
2. Abex denies the allegations contained in Paragraph 2 of the Complaint as they
pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the
allegations as they pertain to any other defendant, and refers all questions of law to the Court.
3. Abex denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph 3 of the Complaint.
4. The allegations contained in Paragraph 4 of the Complaint do not assert facts which
require a response; to the extent a response is required, Abex denies the allegations contained in
Paragraph 4 of the Complaint as they pertain to Abex, denies knowledge or information sufficient
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to form a belief as to the truth of the allegations contained in Paragraph 4 as they pertain to any
other defendant, and refers all questions of law to the Court.
5. Abex denies the allegations contained in Paragraphs 5 through 71 of the Complaint
as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth
of the allegations as they pertain to any other defendant, and refers all questions of law to the
Court.
6. Abex denies the allegations contained in Paragraphs 72 through 73 of the
Complaint, except that Abex admits it is a limited liability corporation organized in the State of
Delaware with its principal place of business in Spring, Texas, and refers all questions of law to the
Court.
7. Abex denies the allegations contained in Paragraphs 74 through 105 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE
8. With respect to the allegations contained in Paragraph 106 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 105 as if fully set forth herein.
9. Abex denies the allegations contained in Paragraphs 107 through 114 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN
BREACH OF WARRANTY
10. With respect to the allegations contained in Paragraph 115 of the Complaint, Abex
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repeats and reiterates its responses to Paragraphs 1 through 114, as if fully set forth herein.
11. Abex denies the allegations contained in Paragraphs 116 through 119 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY
12. With respect to the allegations contained in Paragraph 120 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 119, as if fully set forth herein.
13. Abex denies the allegations contained in Paragraphs 121 through 129 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS
14. With respect to the allegations contained in Paragraph 130 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 129, as if fully set forth herein.
15. Abex denies the allegations contained in Paragraphs 131 through 146 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
16. Abex denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in Paragraph 147 of the Complaint.
17. Abex denies the allegations contained in Paragraph 148 of the Complaint as they
pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the
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allegations as they pertain to any other defendant, and refers all questions of law to the Court.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
METROPOLITAN LIFE INSURANCE COMPANY
18. With respect to the allegations contained in Paragraph 149 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 148, as if fully set forth herein.
19. Abex denies the allegations contained in Paragraphs 150 through 156 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
COLLECTIVE LIABILITY/CONCERT OF ACTION
20. With respect to the allegations contained in Paragraph 157 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 156, as if fully set forth herein.
21. Abex denies the allegations contained in Paragraphs 158 through 172 of the
Complaint, including all subparts, as they pertain to Abex, denies knowledge or information
sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant,
and refers all questions of law to the Court.
AS AND FOR A SEVENTH CAUSE OF ACTION
AGAINST DEFENDANT CONTRACTORS
22. With respect to the allegations contained in Paragraph 173 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 172, as if fully set forth herein.
23. Abex denies the allegations contained in Paragraphs 174 through 186 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
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AS AND FOR AN EIGHTH CAUSE OF ACTION
FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS
24. With respect to the allegations contained in Paragraph 187 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 186, as if fully set forth herein.
25. Abex denies the allegations contained in Paragraphs 188 through 202 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY
26. With respect to the allegations contained in Paragraph 203 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 202, as if fully set forth herein.
27. Abex denies the allegations contained in Paragraphs 204 through 215 of the
Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as
to the truth of the allegations as they pertain to any other defendant, and refers all questions of law
to the Court.
AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES
28. With respect to the allegations contained in Paragraph 216 of the Complaint, Abex
repeats and reiterates its responses to Paragraphs 1 through 215, as if fully set forth herein.
29. Abex denies the allegations contained in Paragraph 217 of the Complaint as they
pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the
allegations as they pertain to any other defendant, and refers all questions of law to the Court.
AS AND FOR A
FIRST AFFIRMATIVE DEFENSE
30. All claims are time-barred by the applicable Statute of Limitations.
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AS AND FOR A
SECOND AFFIRMATIVE DEFENSE
31. All causes of action have not been maintained in a timely fashion, and Plaintiff has
neglected the same and should be barred by the doctrine of laches.
AS AND FOR A
THIRD AFFIRMATIVE DEFENSE
32. The Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A
FOURTH AFFIRMATIVE DEFENSE
33. The Complaint, and each and every allegation considered separately, fail to state
any cause of action against Abex upon which relief can be granted.
AS AND FOR A
FIFTH AFFIRMATIVE DEFENSE
34. Since Plaintiff is unable to identify the manufacturers of the substance, product or
equipment which allegedly caused injury to him, Plaintiff’s fails to state a claim upon which relief
may be granted, since if such relief were granted, it would deprive Abex of its constitutional rights
to substantive and procedural due process of law and equal protection under the laws guaranteed
by the Fourteenth Amendment to the Constitution of the United States.
AS AND FOR A
SIXTH AFFIRMATIVE DEFENSE
35. The causes of action asserted herein by Plaintiff, who admittedly is unable to
identify the manufacturer of the alleged injury-causing product, fail to state a claim upon which
relief can be granted, in that Plaintiff has asserted claims for relief which, if granted, would
constitute a taking of private property for public use, without just compensation. Such a taking
would contravene Abex’s constitutional rights as preserved for it by the Fourteenth Amendment of
the Constitution of the United States.
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AS AND FOR A
SEVENTH AFFIRMATIVE DEFENSE
36. To the extent to which Plaintiff seeks punitive damages against Abex, these
damages are improper, unwarranted, not authorized by law and are unconstitutional in the
context of this litigation. The imposition of punitive damages violates the due process, contract,
excessive fines and “double jeopardy” clauses of the Constitution of the United States.
AS AND FOR AN
EIGHTH AFFIRMATIVE DEFENSE
37. Upon information and belief, Abex conformed to the scientific knowledge and data
available to 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
Plaintiff may not recover herein any exemplary or punitive damages against Abex.
AS AND FOR A
NINTH AFFIRMATIVE DEFENSE
38. Plaintiff’s causes of action for exemplary or punitive damages are barred because
such damages are not recoverable or warranted in this action.
AS AND FOR A
TENTH AFFIRMATIVE DEFENSE
39. There is no in personam jurisdiction over Abex in New York.
AS AND FOR A
ELEVENTH AFFIRMATIVE DEFENSE
40. Abex is not a proper party defendant.
AS AND FOR A
TWELFTH AFFIRMATIVE DEFENSE
41. 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,
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the amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to Plaintiff, including contributory negligence and assumption of risk, in the
proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which
caused the damages alleged.
AS AND FOR A
THIRTEENTH AFFIRMATIVE DEFENSE
42. If Plaintiff should prove that injuries and damages were sustained as alleged, such
injuries and damages resulted from acts or omissions on the part of third parties over whom Abex
had neither control nor right of control.
AS AND FOR AN
FOURTEENTH AFFIRMATIVE DEFENSE
43. While Abex denies the allegations of Plaintiff with respect to liability, injury and
damages, to the extent to which Plaintiff may be able to prove the same, they were the result of
intervening and/or interceding acts of superseding negligence on the part of third parties over
whom Abex had neither control nor right of control.
AS AND FOR A
FIFTEENTH AFFIRMATIVE DEFENSE
44. While denying Plaintiff’s allegations with respect to liability, to the extent that
negligence or improper conduct may be proved, the acts of Abex are not a proximate cause of any
injuries to Plaintiff.
AS AND FOR A
SIXTEENTH AFFIRMATIVE DEFENSE
45. At all times during the conduct of their corporate operations, the agents, servants
and/or employees of Abex complied with all applicable law, regulations, standards and the
available knowledge and technology of the medical, scientific and industrial communities.
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AS AND FOR A
SEVENTEENTH AFFIRMATIVE DEFENSE
46. If it should be proven at the time of trial that any of Abex’s products were furnished
to Plaintiff’s employers or to the United States Government and that Plaintiff came into contact
with these products, which is specifically denied, then any such product was furnished in strict
conformity to the conditions specified or to the specifications furnished by Plaintiff’s employers
and/or the United States Government.
AS AND FOR A
EIGHTEENTH AFFIRMATIVE DEFENSE
47. Plaintiff, Plaintiff’s co-workers and employers, misused, abused, mistreated and
misapplied the products designated as asbestos material as alleged in the Complaint.
AS AND FOR A
NINETEENTH AFFIRMATIVE DEFENSE
48. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the
products caused and/or contributed to the alleged damages or injuries to Plaintiff, then Abex
requests that the amount of damages which might be recovered shall be diminished by the
proportion which the same misuse, abuse, mistreatment and/or misapplication attributed to the
Plaintiff, Plaintiff’s co-workers and/or employers bears to the conduct which caused the alleged
injuries or damages.
AS AND FOR A
TWENTIETH AFFIRMATIVE DEFENSE
49. Abex neither gave, made nor otherwise extended any warranties, whether express
or implied, upon which Plaintiff had a right to rely.
AS AND FOR A
TWENTY-FIRST AFFIRMATIVE DEFENSE
50. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
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unavailable because of the provisions of the applicable Statute of Frauds.
AS AND FOR A
TWENTY-SECOND AFFIRMATIVE DEFENSE
51. As to all the causes of action pleaded in the Complaint which may be based upon
express or implied warranties and/or representations, such causes of action are legally insufficient,
as against Abex, by reason of Plaintiff’s failure to allege privity of contract between the Plaintiff
and Abex, which is specifically denied.
AS AND FOR A
TWENTY-THIRD AFFIRMATIVE DEFENSE
52. In the event that any breach of express or implied warranty is proven, Plaintiff
failed to give proper and prompt notice of any such breach of warranty to Abex.
AS AND FOR A
TWENTY-FOURTH AFFIRMATIVE DEFENSE
53. Plaintiff did not directly or indirectly purchase any asbestos-containing products
from Abex, and Plaintiff neither received nor relied upon any warranty or representation that may
be alleged to have been made by Abex.
AS AND FOR A
TWENTY-FIFTH AFFIRMATIVE DEFENSE
54. To the extent to which the causes of action pleaded by Plaintiff fails to accord with
the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint
is time-barred.
AS AND FOR A
TWENTY-SIXTH AFFIRMATIVE DEFENSE
55. Abex denies that Plaintiff had any exposure to any asbestos-containing product
allegedly processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold, and/or otherwise placed in the stream of commerce by Abex, and more
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particularly, denies, upon information and belief, that Abex processed, manufactured, supplied,
developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the
stream of commerce any asbestos-containing product at the times and upon the dates alleged in the
Complaint.
AS AND FOR A
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
56. Abex denies specifically that, during the periods of exposure alleged in the
Complaint by the Plaintiff, it processed, manufactured, designed, supplied, developed, tested,
fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of
commerce a substantial and/or any percentage of the asbestos-containing products to which
Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale and
digest and which thereby caused the Plaintiff’s injuries and resulting damages alleged in the
Complaint.
AS AND FOR A
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
57. In the event it should be proven at the time of trial that all the defendants are subject
to market share liability, then Abex’s share of such liability would be of such a de minimus amount
as to make its contribution for damages negligible, and Abex would be entitled to contribution,
either in whole or in part, from the co-defendants not represented by this answer.
AS AND FOR A
TWENTY-NINTH AFFIRMATIVE DEFENSE
58. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen
or reduce the injuries and disability alleged in the Complaint.
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AS AND FOR A
THIRTIETH AFFIRMATIVE DEFENSE
59. Abex specifically denies that the asbestos products alleged in the 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.
AS AND FOR A
THIRTY-FIRST AFFIRMATIVE DEFENSE
60. The doctrine of strict liability in tort is inapplicable to this litigation.
AS AND FOR A
THIRTY-SECOND AFFIRMATIVE DEFENSE
61. Plaintiff contributed to his illness by the use, either in whole or in part, of other
substances, products, medications and/or drugs.
AS AND FOR A
THIRTY-THIRD AFFIRMATIVE DEFENSE
62. Plaintiff and/or his employers were sophisticated purchasers/users of the subject
product upon whom devolved all responsibility for the use of the products referred to in the
Complaint.
AS AND FOR A
THIRTY-FOURTH AFFIRMATIVE DEFENSE
63. At all times material hereto, the state of the medical, industrial, and scientific arts,
knowledge and technology was that there was no generally accepted or recognized knowledge of
any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of
asbestos-containing products when used in the manner and for the purposes intended, so that there
was no duty by Abex to know of such character or nature or to warn Plaintiff or others similarly
situated, and that, to the extent such duty arose, adequate warnings either were given or were not
necessary under all circumstances.
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AS AND FOR A
THIRTY-FIFTH AFFIRMATIVE DEFENSE
64. All defenses which have been or will be asserted by other defendants in this action
are adopted and incorporated by reference as if fully set forth at length herein as defenses to the
Complaint.
AS AND FOR A
THIRTY-SIXTH AFFIRMATIVE DEFENSE
65. Abex reserves the right to amend this pleading to assert additional defenses upon
discovery of the specific facts upon which Plaintiff bases his claims for relief, and upon
completion of further discovery.
AS AND FOR A
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
66. Plaintiff’s exclusive remedies are under the applicable federal workers’
compensation laws, including Federal Employees Liability Act.
AS AND FOR A
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
67. Plaintiff’s claims are preempted under the Federal Locomotive Boiler Inspection
Act, Safety Appliances Act and Federal Railroad Safety Act.
AS AND FOR A
THIRTY-NINTH AFFIRMATIVE DEFENSE
68. This action cannot be maintained as there is another action pending for the same
relief.
AS AND FOR A
FORTIETH AFFIRMATIVE DEFENSE
69. Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and
indispensable parties.
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AS AND FOR A
FORTY-FIRST AFFIRMATIVE DEFENSE
70. Plaintiff’s claims should be dismissed on grounds of improper venue and/or forum
non conveniens.
AS AND FOR A
FORTY-SECOND AFFIRMATIVE DEFENSE
71. Plaintiff’s claims should be dismissed on grounds of improper service of process.
AS AND FOR A
FORTY-THIRD AFFIRMATIVE DEFENSE
72. Abex reserves the right to move for a severance of the various allegations in the
Complaint.
AS AND FOR A
FORTY-FOURTH AFFIRMATIVE DEFENSE
73. Any damages which may have been sustained by Plaintiff were caused or
contributed to by reason of the culpable conduct of the Plaintiff.
AS AND FOR A
FORTY-FIFTH AFFIRMATIVE DEFENSE
74. Insofar as the Complaint, and each cause of action considered separately, alleges a
cause of action to recover damages for personal injuries, the amount of damages recoverable thereon
must be diminished by reason of the culpable conduct attributable to the Plaintiff, including
contributory negligence and assumption of risk, in the proportion which the culpable conduct
attributable to Plaintiff bears to the culpable conduct which caused the damages.
AS AND FOR A
FORTY-SIXTH AFFIRMATIVE DEFENSE
75. Insofar as the Complaint, and each cause of action considered separately, alleges a
cause of action, each such cause of action is barred by reason of the culpable conduct attributable to
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the Plaintiff, including contributory negligence and assumption of the risk.
AS AND FOR A
FORTY-SEVENTH AFFIRMATIVE DEFENSE
76. Abex is entitled to the limitation of liability under Article 16 of the Civil Practice
Law and Rules.
AS AND FOR A
FORTY-EIGHTH AFFIRMATIVE DEFENSE
77. The Complaint fails to state in detail the circumstances constituting the alleged
misrepresentation, fraud, concealment, deceit and conspiracy.
AS AND FOR A
FORTY-NINTH AFFIRMATIVE DEFENSE
78. The injuries allegedly suffered by the Plaintiff, if any, which injuries are specifically
denied by Abex, were the result of the culpable conduct or fault of third persons for whose conduct
Abex is not legally responsible, and the damages recovered by the Plaintiff, if any, should be
diminished or reduced in proportion to said culpable conduct which caused the damages. Any
liability on the part of Abex, which liability is specifically denied, is fifty percent or less of the
liability of all entities who are the cause of the alleged injuries, if any, and the liability of Abex for
non-economic loss does not exceed Abex equitable share determined in accordance with the relative
culpability of each person causing or contributing to the total liability of non-economic loss pursuant
to Civil Practice Law and Rules Sections 1601 through 1603.
AS AND FOR A
FIFTIETH AFFIRMATIVE DEFENSE
79. Abex denies that the asbestos products alleged in the 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.
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AS AND FOR A
FIFTY-FIRST AFFIRMATIVE DEFENSE
80. In the event that Plaintiff was employed by Abex, Plaintiff’s sole and exclusive
remedy is under the Workers’ Compensation Law of the State of New York.
AS AND FOR A
FIFTY-SECOND AFFIRMATIVE DEFENSE
81. Plaintiff claims that Abex’s products were capable of releasing asbestos fibers into
the air is inconsistent with the science and must be considered speculative as a matter of law.
AS AND FOR A
FIFTY-THIRD AFFIRMATIVE DEFENSE
82. Abex does not admit culpability or liability to Plaintiff, but to the extent permitted,
is entitled to a setoff of damages based on reimbursement to Plaintiff from collateral sources
pursuant to CPLR§ 4545.
AS AND FOR A
FIFTY-FORTH AFFIRMATIVE DEFENSE
83. Any products of Abex that Plaintiff claims exposure to were designed,
manufactured and marketed in accordance with the State of the Art before leaving Abex’s control.
AS AND FOR A CROSS-CLAIM
AGAINST CO-DEFENDANTS
84. If Plaintiff sustained damages at the time and place set forth in the Complaint
through any carelessness, recklessness, and/or negligence other than that of Plaintiff himself,
including, but not limited to, the manufacture and distribution of asbestos products, breach of
warranty or misrepresentations, 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.
85. If the Plaintiff should recover a judgment against Abex, by operation of law or
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otherwise, Abex will be entitled to judgment, contribution and/or indemnity over and against the
co-defendants, 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 principles 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 attorney’s fees.
WHEREFORE, Abex demands judgment dismissing the Complaint with costs and
disbursements, and in the event of any judgment against Abex, it demands judgment, contribution
and/or indemnity over and against the co-defendants for the amount of any such recovery or a
portion thereof, in accordance with the principles of law regarding apportionment of fault and
damages, along with costs and disbursements, including reasonable attorney fees.
Dated: February 17, 2017 HAWKINS PARNELL
New York, New York THACKSTON & YOUNG LLP
By:
Edward P. Abbot
Preview
FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------x ASBESTOS MASTER IN RE: NEW YORK CITY NYCAL ASBESTOS LITIGATION -----------------------------------------------------------------x STEVEN LEROY HALL, Index No. 190012-17 Plaintiff, VERIFIED ANSWER TO PLAINTIFF’S VERIFIED COMPLAINT, -against- AFFIRMATIVE DEFENSES AND CROSS-CLAIMS OF A.O. SMITH WATER PRODUCTS, et al., DEFENDANT PNEUMO ABEX LLC Defendants. -----------------------------------------------------------------x Defendant, Pneumo Abex LLC, successor in interest to Abex Corporation, incorrectly sued herein as “PNEUMO ABEX CORPORATION,” (hereinafter “Abex”), by its attorneys, Hawkins Parnell Thackston & Young LLP, hereby answers Plaintiff’s Verified Complaint (hereinafter “Complaint”), as follows: THE PARTIES 1. Abex denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint. 2. Abex denies the allegations contained in Paragraph 2 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. 3. Abex denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 3 of the Complaint. 4. The allegations contained in Paragraph 4 of the Complaint do not assert facts which require a response; to the extent a response is required, Abex denies the allegations contained in Paragraph 4 of the Complaint as they pertain to Abex, denies knowledge or information sufficient 11480910v.1 1 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 to form a belief as to the truth of the allegations contained in Paragraph 4 as they pertain to any other defendant, and refers all questions of law to the Court. 5. Abex denies the allegations contained in Paragraphs 5 through 71 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. 6. Abex denies the allegations contained in Paragraphs 72 through 73 of the Complaint, except that Abex admits it is a limited liability corporation organized in the State of Delaware with its principal place of business in Spring, Texas, and refers all questions of law to the Court. 7. Abex denies the allegations contained in Paragraphs 74 through 105 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE 8. With respect to the allegations contained in Paragraph 106 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 105 as if fully set forth herein. 9. Abex denies the allegations contained in Paragraphs 107 through 114 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF WARRANTY 10. With respect to the allegations contained in Paragraph 115 of the Complaint, Abex 2 11480910v.1 2 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 repeats and reiterates its responses to Paragraphs 1 through 114, as if fully set forth herein. 11. Abex denies the allegations contained in Paragraphs 116 through 119 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT LIABILITY 12. With respect to the allegations contained in Paragraph 120 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 119, as if fully set forth herein. 13. Abex denies the allegations contained in Paragraphs 121 through 129 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS 14. With respect to the allegations contained in Paragraph 130 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 129, as if fully set forth herein. 15. Abex denies the allegations contained in Paragraphs 131 through 146 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. 16. Abex denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 147 of the Complaint. 17. Abex denies the allegations contained in Paragraph 148 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the 3 11480910v.1 3 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY 18. With respect to the allegations contained in Paragraph 149 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 148, as if fully set forth herein. 19. Abex denies the allegations contained in Paragraphs 150 through 156 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION 20. With respect to the allegations contained in Paragraph 157 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 156, as if fully set forth herein. 21. Abex denies the allegations contained in Paragraphs 158 through 172 of the Complaint, including all subparts, as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT CONTRACTORS 22. With respect to the allegations contained in Paragraph 173 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 172, as if fully set forth herein. 23. Abex denies the allegations contained in Paragraphs 174 through 186 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. 4 11480910v.1 4 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY AGAINST CERTAIN DEFENDANTS 24. With respect to the allegations contained in Paragraph 187 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 186, as if fully set forth herein. 25. Abex denies the allegations contained in Paragraphs 188 through 202 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A NINTH CAUSE OF ACTION JOINT AND SEVERAL LIABILITY 26. With respect to the allegations contained in Paragraph 203 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 202, as if fully set forth herein. 27. Abex denies the allegations contained in Paragraphs 204 through 215 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A TENTH CAUSE OF ACTION PUNITIVE DAMAGES 28. With respect to the allegations contained in Paragraph 216 of the Complaint, Abex repeats and reiterates its responses to Paragraphs 1 through 215, as if fully set forth herein. 29. Abex denies the allegations contained in Paragraph 217 of the Complaint as they pertain to Abex, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to any other defendant, and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 30. All claims are time-barred by the applicable Statute of Limitations. 5 11480910v.1 5 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 31. All causes of action have not been maintained in a timely fashion, and Plaintiff has neglected the same and should be barred by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 32. The Court lacks jurisdiction over the subject matter of this action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 33. The Complaint, and each and every allegation considered separately, fail to state any cause of action against Abex upon which relief can be granted. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 34. Since Plaintiff is unable to identify the manufacturers of the substance, product or equipment which allegedly caused injury to him, Plaintiff’s fails to state a claim upon which relief may be granted, since if such relief were granted, it would deprive Abex of its constitutional rights to substantive and procedural due process of law and equal protection under the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 35. The causes of action asserted herein by Plaintiff, who admittedly is unable to identify the manufacturer of the alleged injury-causing product, fail to state a claim upon which relief can be granted, in that Plaintiff has asserted claims for relief which, if granted, would constitute a taking of private property for public use, without just compensation. Such a taking would contravene Abex’s constitutional rights as preserved for it by the Fourteenth Amendment of the Constitution of the United States. 6 11480910v.1 6 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 36. To the extent to which Plaintiff seeks punitive damages against Abex, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. The imposition of punitive damages violates the due process, contract, excessive fines and “double jeopardy” clauses of the Constitution of the United States. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 37. Upon information and belief, Abex conformed to the scientific knowledge and data available to 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 Plaintiff may not recover herein any exemplary or punitive damages against Abex. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 38. Plaintiff’s causes of action for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 39. There is no in personam jurisdiction over Abex in New York. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 40. Abex is not a proper party defendant. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 41. 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, 7 11480910v.1 7 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages alleged. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 42. If Plaintiff should prove that injuries and damages were sustained as alleged, such injuries and damages resulted from acts or omissions on the part of third parties over whom Abex had neither control nor right of control. AS AND FOR AN FOURTEENTH AFFIRMATIVE DEFENSE 43. While Abex denies the allegations of Plaintiff with respect to liability, injury and damages, to the extent to which Plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third parties over whom Abex had neither control nor right of control. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 44. While denying Plaintiff’s allegations with respect to liability, to the extent that negligence or improper conduct may be proved, the acts of Abex are not a proximate cause of any injuries to Plaintiff. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 45. At all times during the conduct of their corporate operations, the agents, servants and/or employees of Abex complied with all applicable law, regulations, standards and the available knowledge and technology of the medical, scientific and industrial communities. 8 11480910v.1 8 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 46. If it should be proven at the time of trial that any of Abex’s products were furnished to Plaintiff’s employers or to the United States Government and that Plaintiff came into contact with these products, which is specifically denied, then any such product was furnished in strict conformity to the conditions specified or to the specifications furnished by Plaintiff’s employers and/or the United States Government. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 47. Plaintiff, Plaintiff’s co-workers and employers, misused, abused, mistreated and misapplied the products designated as asbestos material as alleged in the Complaint. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 48. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the products caused and/or contributed to the alleged damages or injuries to Plaintiff, then Abex requests that the amount of damages which might be recovered shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication attributed to the Plaintiff, Plaintiff’s co-workers and/or employers bears to the conduct which caused the alleged injuries or damages. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 49. Abex neither gave, made nor otherwise extended any warranties, whether express or implied, upon which Plaintiff had a right to rely. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 50. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and 9 11480910v.1 9 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 unavailable because of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 51. As to all the causes of action pleaded in the Complaint which may be based upon express or implied warranties and/or representations, such causes of action are legally insufficient, as against Abex, by reason of Plaintiff’s failure to allege privity of contract between the Plaintiff and Abex, which is specifically denied. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 52. In the event that any breach of express or implied warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to Abex. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 53. Plaintiff did not directly or indirectly purchase any asbestos-containing products from Abex, and Plaintiff neither received nor relied upon any warranty or representation that may be alleged to have been made by Abex. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 54. To the extent to which the causes of action pleaded by Plaintiff fails to accord with the Uniform Commercial Code, including, but not limited to Section 2-725 thereof, the Complaint is time-barred. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 55. Abex denies that Plaintiff had any exposure to any asbestos-containing product allegedly processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce by Abex, and more 10 11480910v.1 10 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 particularly, denies, upon information and belief, that Abex processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos-containing product at the times and upon the dates alleged in the Complaint. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 56. Abex denies specifically that, during the periods of exposure alleged in the Complaint by the Plaintiff, it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos-containing products to which Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and which thereby caused the Plaintiff’s injuries and resulting damages alleged in the Complaint. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 57. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then Abex’s share of such liability would be of such a de minimus amount as to make its contribution for damages negligible, and Abex would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this answer. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 58. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in the Complaint. 11 11480910v.1 11 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 59. Abex specifically denies that the asbestos products alleged in the 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. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 60. The doctrine of strict liability in tort is inapplicable to this litigation. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 61. Plaintiff contributed to his illness by the use, either in whole or in part, of other substances, products, medications and/or drugs. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 62. Plaintiff and/or his employers were sophisticated purchasers/users of the subject product upon whom devolved all responsibility for the use of the products referred to in the Complaint. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 63. At all times material hereto, the state of the medical, industrial, and scientific arts, knowledge and technology was that there was no generally accepted or recognized knowledge of any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of asbestos-containing products when used in the manner and for the purposes intended, so that there was no duty by Abex to know of such character or nature or to warn Plaintiff or others similarly situated, and that, to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. 12 11480910v.1 12 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 64. All defenses which have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to the Complaint. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 65. Abex reserves the right to amend this pleading to assert additional defenses upon discovery of the specific facts upon which Plaintiff bases his claims for relief, and upon completion of further discovery. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 66. Plaintiff’s exclusive remedies are under the applicable federal workers’ compensation laws, including Federal Employees Liability Act. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 67. Plaintiff’s claims are preempted under the Federal Locomotive Boiler Inspection Act, Safety Appliances Act and Federal Railroad Safety Act. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 68. This action cannot be maintained as there is another action pending for the same relief. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 69. Plaintiff’s claims are barred because of Plaintiff’s failure to join necessary and indispensable parties. 13 11480910v.1 13 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 70. Plaintiff’s claims should be dismissed on grounds of improper venue and/or forum non conveniens. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 71. Plaintiff’s claims should be dismissed on grounds of improper service of process. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 72. Abex reserves the right to move for a severance of the various allegations in the Complaint. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 73. Any damages which may have been sustained by Plaintiff were caused or contributed to by reason of the culpable conduct of the Plaintiff. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 74. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to the Plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 75. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action, each such cause of action is barred by reason of the culpable conduct attributable to 14 11480910v.1 14 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 the Plaintiff, including contributory negligence and assumption of the risk. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 76. Abex is entitled to the limitation of liability under Article 16 of the Civil Practice Law and Rules. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 77. The Complaint fails to state in detail the circumstances constituting the alleged misrepresentation, fraud, concealment, deceit and conspiracy. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 78. The injuries allegedly suffered by the Plaintiff, if any, which injuries are specifically denied by Abex, were the result of the culpable conduct or fault of third persons for whose conduct Abex is not legally responsible, and the damages recovered by the Plaintiff, if any, should be diminished or reduced in proportion to said culpable conduct which caused the damages. Any liability on the part of Abex, which liability is specifically denied, is fifty percent or less of the liability of all entities who are the cause of the alleged injuries, if any, and the liability of Abex for non-economic loss does not exceed Abex equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability of non-economic loss pursuant to Civil Practice Law and Rules Sections 1601 through 1603. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE 79. Abex denies that the asbestos products alleged in the 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. 15 11480910v.1 15 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 80. In the event that Plaintiff was employed by Abex, Plaintiff’s sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE 81. Plaintiff claims that Abex’s products were capable of releasing asbestos fibers into the air is inconsistent with the science and must be considered speculative as a matter of law. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 82. Abex does not admit culpability or liability to Plaintiff, but to the extent permitted, is entitled to a setoff of damages based on reimbursement to Plaintiff from collateral sources pursuant to CPLR§ 4545. AS AND FOR A FIFTY-FORTH AFFIRMATIVE DEFENSE 83. Any products of Abex that Plaintiff claims exposure to were designed, manufactured and marketed in accordance with the State of the Art before leaving Abex’s control. AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS 84. If Plaintiff sustained damages at the time and place set forth in the Complaint through any carelessness, recklessness, and/or negligence other than that of Plaintiff himself, including, but not limited to, the manufacture and distribution of asbestos products, breach of warranty or misrepresentations, 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. 85. If the Plaintiff should recover a judgment against Abex, by operation of law or 16 11480910v.1 16 of 18 FILED: NEW YORK COUNTY CLERK 02/17/2017 01:12 PM INDEX NO. 190012/2017 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 02/17/2017 otherwise, Abex will be entitled to judgment, contribution and/or indemnity over and against the co-defendants, 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 principles 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 attorney’s fees. WHEREFORE, Abex demands judgment dismissing the Complaint with costs and disbursements, and in the event of any judgment against Abex, it demands judgment, contribution and/or indemnity over and against the co-defendants for the amount of any such recovery or a portion thereof, in accordance with the principles of law regarding apportionment of fault and damages, along with costs and disbursements, including reasonable attorney fees. Dated: February 17, 2017 HAWKINS PARNELL New York, New York THACKSTON & YOUNG LLP By: Edward P. Abbot