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FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
ALL COUNTIES WITHIN THE CITY OF NEW YORK
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IN RE: NEW YORK CITY ASBESTOS LITIGATION
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DAN ALBASRY, as Trustee of the Estate of NEWAL VERIFIED ANSWER OF
AL SAAD, and FIRAS MOHAMMAD, DEFENDANT PORT
JERVIS LABORATORIES
Plaintiffs, INC.
-against- Index No. 190002/2023
BARRETTS MINERALS INC., et al.,
Defendants.
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Defendant Port Jervis Laboratories Inc. f/k/a Kolmar Laboratories, Inc. (“Port Jervis”) by
its attorneys Clyde & Co US LLP, answering the Plaintiffs’ Verified Complaint (“Complaint”)
upon information and belief alleges as follows:
PARTIES
1-16. Defendant Port Jervis denies any knowledge or information sufficient to form a
belief as to the truth of each and every allegation contained in paragraphs 1 through 16 of the
Complaint as it pertains to the remaining defendants in the Complaint.
17. Defendant Port Jervis denies each and every allegation contained in paragraph 17 of
the Complaint insofar as it relates to this Defendant.
18-21. Defendant Port Jervis denies any knowledge or information sufficient to form a
belief as to the truth of each and every allegation contained in paragraphs 18 through 21 of the
Complaint as it pertains to the remaining defendants in the Complaint.
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22-25. Defendant Port Jervis denies each and every allegation contained in paragraphs
22 through 25 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant and refers all questions of law to this Court for determination.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION:
NEGLIGENCE
26. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 25 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 26 of the Complaint.
27-42. Defendant Port Jervis denies each and every allegation contained in paragraphs
27 through 42 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION:
NEGLIGENCE PER SE
43. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 42 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 43 of the Complaint.
44-49. Defendant Port Jervis denies each and every allegation contained in paragraphs
44 through 49 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant and refers all questions of law to this Court for determination.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION:
STRICT LIABILITY – FAILURE TO WARN
50. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 49 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 50 of the Complaint.
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51-59. Defendant Port Jervis denies each and every allegation contained in paragraphs
51 through 59 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION:
STRICT LIABILITY – MANUFACTURING DEFECT
60. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 59 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 60 of the Complaint.
61-67. Defendant Port Jervis denies each and every allegation contained in paragraphs
61 through 67 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION:
STRICT LIABILITY – DESIGN DEFECT
68. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 67 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 68 of the Complaint.
69-75. Defendant Port Jervis denies each and every allegation contained in paragraphs
69 through 75 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION:
MARKET SHARE LIABILITY
76. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 75 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 76 of the Complaint.
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77-93. Defendant Port Jervis denies each and every allegation contained in paragraphs
77 through 93 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION:
ALTERNATIVE/COLLECTIVE LIABILITY
94. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 93 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 94 of the Complaint.
95-100. Defendant Port Jervis denies each and every allegation contained in paragraphs
95 through 100 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE EIGHTH CAUSE OF ACTION:
FRAUDULENT MISREPRESENTATION AND CONSPIRACY/CONCERT
ACTION
101. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 100 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 101 of the Complaint.
102-162. Defendant Port Jervis denies each and every allegation contained in paragraphs
102 through 162 of the Complaint insofar as this Court has no personal jurisdiction over this
Defendant.
AS AND FOR AN ANSWER TO THE NINTH CAUSE OF ACTION:
SPOUSAL LOSS OF CONSORTIUM
163. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 162 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 163 of the Complaint.
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164. Defendant Port Jervis denies each and every allegation contained in paragraph 164
of the Complaint insofar as this Court has no personal jurisdiction over this Defendant.
AS AND FOR AN ANSWER TO THE TENTH CAUSE OF ACTION:
WRONGFUL DEATH
165. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 164 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 165 of the Complaint.
166. Defendant Port Jervis denies each and every allegation contained in paragraph 166
of the Complaint insofar as this Court has no personal jurisdiction over this Defendant.
AS AND FOR AN ANSWER TO THE ELEVENTH CAUSE OF ACTION:
PUNITIVE DAMAGES
167. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer
to each and every allegation contained in paragraphs 1 through 166 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 167 of the Complaint.
168. Defendant Port Jervis denies each and every allegation contained in paragraph 168
of the Complaint insofar as this Court has no personal jurisdiction over this Defendant.
AFFIRMATIVE DEFENSES
FIRST SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that the Plaintiff is entitled to the damages claimed or to the relief
demanded.
SECOND SEPARATE AFFIRMATIVE DEFENSE
Each and every Count of the Complaint fails to state a claim upon which relief can be
granted.
THIRD SEPARATE AFFIRMATIVE DEFENSE
There is an insufficiency of service of process upon this Defendant.
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FOURTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks subject matter jurisdiction over each and every count contained in the
Complaint.
FIFTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over the Defendant with respect to each and every
Count contained in the Complaint.
SIXTH SEPARATE AFFIRMATIVE DEFENSE
This Court lacks venue over the Defendant with respect to each and every Count contained
in the Complaint.
SEVENTH SEPARATE AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for the Defendant with respect to each
and every Count contained in the Complaint.
EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The causes of action alleged in the Complaint are barred by the applicable statutes of
limitation or repose from the jurisdiction or jurisdictions whose limitations or repose provision
govern.
NINTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiff has failed to join a party or parties necessary for a just adjudication of this
matter and have further omitted to state any reasons for such failure.
TENTH SEPARATE AFFIRMATIVE DEFENSE
The claims presented by the Complaint are barred by the contributing fault of Plaintiff
which fault is greater than that of each Defendant or all of the Defendants.
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ELEVENTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiff were caused by the negligence of the
Plaintiff and any recovery therefore is barred.
TWELFTH SEPARATE AFFIRMATIVE DEFENSE
Any injuries or damages suffered by the Plaintiff were caused by the negligence of the
Plaintiff and any recovery therefore must be proportionately diminished.
THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE
Any negligence on the part of Defendant was superseded by the new and independent
conduct, including negligence of Plaintiff's employer and/or other third parties, who owed a duty
to Plaintiff and over whom Defendant had no control and which conduct Defendant could neither
anticipate nor reasonably foresee and which superseding conduct was not a consequence of
Defendant’s alleged negligence but which was the efficient cause of the injuries allegedly
sustained by Plaintiff.
FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE
The injuries complained of by the Plaintiff are wholly or partially caused by independent
means, including, inter alia, the conduct and habits of Plaintiff and exposure to other particulates
in the environment.
FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff was a habitual smoker, and such smoking caused any lung disease from which
the Plaintiff suffered.
SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant had no duty to give instructions to Plaintiff or to warn Plaintiff of any
hazards attendant to the contact with, use of, or exposure to its products containing talc and/or
asbestos fibers or fragments, whether known or constructively known by Defendant, because those
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hazards were known by Plaintiff and/or other persons who controlled or supervised Plaintiff in the
course of or incidental to his employment.
SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiff’s claims to the extent that they include a prayer for equitable relief are barred
on account of laches in that Plaintiff failed or neglected to maintain this action in a swift, diligent
and timely fashion, all to the detriment of Defendant.
EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE
There was no privity of contract between Defendant and Plaintiff so Plaintiff may not
recover upon any alleged breach of any express or implied warranty.
NINETEENTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff’s claims if based upon the allegations of express or implied warranty are barred
because no sale of goods occurred.
TWENTIETH SEPARATE AFFIRMATIVE 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 law regarding strict liability.
TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, if the Defendant’s products were used,
they were used by the Plaintiff and/or other persons, in an 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 Plaintiff and/or such other parties and
persons.
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TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
An action for breach of warranty was not available to Plaintiff during the period of the
allegedly injurious exposure to, use of, or contact with products allegedly manufactured by
Defendant.
TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
No warranty of any kind was extended to Plaintiff in this matter.
TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
If the Defendant, its servants or agents made any express warranties (allegations which the
Defendant specifically denies) then the Plaintiff did not rely on the express warranties and, further,
there was no such reliance by any person or entity authorized to represent the Plaintiff.
TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant or its agents or servants made any warranties express or implied (allegations
which the Defendant specifically denies) then the Defendant denies that it breached any of said
warranties.
TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
If Defendant was liable, negligent or in breach of warranty, all of which it expressly denies,
the Defendant's liability in any or all of those events has been terminated by the intervening acts,
omissions or negligence of others over whom this Defendant had neither control, nor the right of
control and for whose conduct the Defendant is not legally responsible.
TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
Defendant denies that there was any defect or negligent mining, processing, manufacture,
design, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any talc
product which may or may not have contained asbestos fibers and/or fragments or material referred
to in the Plaintiffs’ Complaint, but if there was any defect or negligence as alleged, then the
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Defendant is not liable as it justifiably relied upon inspection by others in the regular course of
trade and business.
TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The utility of the products manufactured by Defendant outweighs the danger allegedly
involved and, therefore, Plaintiff's claim is barred as a matter of public policy.
TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff’s employer or employees were negligent with respect to the matters set forth in
the Complaint, and such negligence caused in whole or in part whatever disease, injury or
disability, if any, which Plaintiff may have sustained, as set forth in the Complaint. Therefore,
even if Plaintiff is entitled to recover against Defendant, which Defendant specifically denies, they
are not entitled to recover in the amount set forth in the Complaint because Defendant is entitled
to set off any and all workmen's compensation payments against any judgment which might be
rendered in Plaintiff's favor.
THIRTIETH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiff establishes any exposure to Defendant’s products, said exposure would have
been so minimal as to be insufficient to establish to a reasonable degree of probability that its
product caused Plaintiff’s claimed injuries.
THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSES
The Plaintiff has released, settled, entered into an accord and satisfaction or otherwise
compromised his claims herein, and accordingly, said claims arc barred by operation of law.
THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Defendant expressly denies that it manufactured, designed, and/or sold any products
referred to in the Complaint which caused injury to Plaintiff. Notwithstanding, at all times and
places mentioned in the Complaint, Plaintiff and/or other persons without this Defendant’s
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knowledge and approval redesigned, modified, altered, and used this Defendant’s products
contrary to instruction and contrary to the custom and practice of the industry. This redesign,
modification, alteration, and use so substantially changed the product's character that if there was
a defect in the product, which Defendant specifically denies, such defect resulted solely from the
redesign, modification, alteration, or other such treatment or change and not from any act or
omission by this Defendant. Therefore, said defect, if any, was created by Plaintiff and/or other
persons, as the case may be, and was the direct and proximate cause of the injuries and damages,
if any, that Plaintiff allegedly suffered.
THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
Plaintiff is not entitled to punitive, exemplary or enhanced damages for the following
reasons:
(a) Plaintiff’s claim for punitive damages is barred by the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.
(b) Plaintiff’s claim for punitive damages is barred by the proscription of the
Eighth Amendment to the United States Constitution, as supplied to the States through the
Fourteenth Amendment, prohibiting the imposition of excessive fines.
(c) Plaintiff’s claim for punitive damages is barred by the “double jeopardy”
clause of the Fifth Amendment to the United States Constitution, as applied to the States
through the Fourteenth Amendment.
(d) Plaintiff’s claim for punitive damages is otherwise barred by applicable law.
THIRTY-FOURTH SEPARATE AFFIRMATIVE 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.
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THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
At all times and places mentioned in the Complaint, the Plaintiff failed to make reasonable
efforts to mitigate his injuries and damages, if any.
THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant acted reasonably and with due care toward Plaintiff, and there was no
negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or
reckless disregard of the rights of the Plaintiff, or malice (actual, legal or otherwise) on the part of
this Defendant as to the Plaintiff.
THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
The Plaintiff has waived any and all claims which he seeks to assert in this action and is
estopped both to assert and to recover upon such claims.
THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that if it supplied any talc products which may or may not have
contained asbestos fibers and/or fragments, either directly or indirectly, to the Plaintiff's
employers, this product was supplied in accordance with specifications established and
promulgated by that employer, agencies or departments of the United States of America, other
persons and/or entities.
THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
The Defendant states that any talc products which may or may not have contained asbestos
fibers and/or fragments manufactured or sold by the Defendant which give rise to Plaintiff's claims
herein were designed and manufactured pursuant to and in accordance with specifications
mandated by the United States Government or its agencies. The knowledge of the United States
Government and its agencies of any possible health hazards from use of such products were equal
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or superior to that of the Defendant, and by reason thereof, the Defendant is entitled to such
immunity from liability as exists in favor of the United States Government or its agencies.
FORTIETH SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiff is unable to identify the manufacturer or manufacturers of the products
which allegedly caused injury, the causes of action asserted by the Plaintiff fails to state a claim
upon which relief can be granted, for, if relief be granted, such relief would constitute a taking of
this Defendant’s property for a public use without just compensation, a violation of this
Defendant’s constitutional rights.
FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiff is unable to identify the manufacturer or manufacturers of the products
which allegedly caused the injury, the causes of action asserted by the Plaintiff fail to state a claim
upon which relief can be granted because such relief would constitute a denial by this Court of
Defendant’s constitutional right of equal protection under the law.
FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
This Defendant alleges that any sales of talc products which may or may not have contained
asbestos fibers and/or fragments made by it were made to sophisticated users of such products,
and that sale to a sophisticated user of the products bars any claim of liability against this
Defendant.
FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE
If the Plaintiff is barred from recovery, the action of his wife is also barred because it is a
derivative action.
FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE
Defendant avails itself of, and adopts such other defenses raised by any other Defendants
as may be applicable.
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FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE
This Defendant reserves the right to assert any and/or all applicable affirmative defense
which discovery may reveal are appropriate.
FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrines of res judicata and/or collateral estoppel.
FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE
The liability of this Defendant, if any, to Plaintiff for non-economic loss is limited by CPLR
§ 1601 et seq. to this Defendant’s equitable share, determined in accordance with the relative
culpability of all persons or entities contributing to the total liability for non-economic loss,
including named parties and others over whom Plaintiff could have obtained personal jurisdiction
with due diligence.
FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE
In the event Plaintiff recovers a verdict or judgment against this Defendant, then said
verdict or judgment must be reduced by those amounts which have been or will replace or
indemnify Plaintiff, in whole or in part, for any past or future claimed economic loss, from any
collateral source such as insurance, social security, workers compensation or employee benefit
programs.
FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE
If Plaintiff has settled or should settle with any entity or have any judgment against any
entity rendered in their favor for any of their alleged injuries, then this Defendant is entitled to a
setoff in the amount of said settlement or judgment, pursuant to Section 15-108 of New York’s
General Obligations Law.
FIFTIETH SEPARATE AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the bulk supplier doctrine.
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FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the sophisticated user doctrine.
FIFTY-SECOND SEPARATE AFFIRMATIVE DEFENSE
Any products manufactured by Kolmar were manufactured in accordance with plans and
specifications provided by others; therefore, Kolmar is not liable for any alleged injuries sustained
by Plaintiff.
CROSS-CLAIM FOR CONTRIBUTION
Defendant Port Jervis hereby makes claim for contribution against each and every
Defendant in this action.
CROSS-CLAIM FOR INDEMNIFICATION
While denying liability to Plaintiff as well as the damages and injuries alleged, if this
Defendant is found liable to the Plaintiff for damages by reason of the alleged acts complained of,
this Defendant’s alleged negligence was merely constructive, technical and passive or vicarious
and Plaintiff’s damages and injuries arose with direct and primary negligence, strict liability,
breach of contract and implied warranties of the said co-defendants listed in this action.
ANSWERS TO ALL CROSS-CLAIMS
This Defendant answers all cross-claims of co-defendants, saying:
(a) All cross-claims for contribution alleged are denied.
(b) All cross-claims for indemnification alleged are denied.
WHEREFORE, Defendant Port Jervis Laboratories Inc. demands judgment as follows:
(a) Dismissing the Complaint against it together with the costs and
disbursements of this action and for any expenses incurred in the defense thereof including
this Defendant’s attorneys’ fees.
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(b) Awarding judgment, contribution and/or indemnity against other co-
defendants for the full amount of any judgment or for a proportionate share thereof that
Plaintiffs may recover against this Defendant together with the costs and disbursements of
this action and for any expenses incurred in the defense thereof including this Defendant’s
attorneys’ fees.
(c) For such other equitable, declaratory or any other type of relief as this court
may deem just and proper.
Dated: New York, New York
March 10, 2023
Yours, etc.,
CLYDE & CO US LLP
By: /s/ Kevin C. McCaffrey
Kevin C. McCaffrey
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Phone: (212) 710-3900
Fax: (212) 710-3950
Email: kevin.mccaffrey@clydeco.us
Attorneys for Defendant Port Jervis Laboratories
Inc.
TO: Lanier Law Firm PLLC
Attorneys for Plaintiffs
126 East 56th Street, 6th Floor
New York, New York 10022
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ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Kevin C. McCaffrey, being duly sworn, deposes and says that I am an attorney with the
law firm of Clyde & Co US LLP, that I have read the foregoing VERIFIED ANSWER OF
DEFENDANT PORT JERVIS LABORATORIES INC. and knows the contents thereof, and
that the same is true to my own knowledge, except as to matters therein stated to be alleged upon
information and belief, and that as to those matters, I believe them to be true. The reason this
verification is made by deponent and not by Defendant is because Defendant does not reside within
the County where the deponent maintains his office.
KEVIN C. MCCAFFREY
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FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 SUPREME COURT OF THE STATE OF NEW YORK ALL COUNTIES WITHIN THE CITY OF NEW YORK -----------------------------------------------------------------------x IN RE: NEW YORK CITY ASBESTOS LITIGATION -----------------------------------------------------------------------x DAN ALBASRY, as Trustee of the Estate of NEWAL VERIFIED ANSWER OF AL SAAD, and FIRAS MOHAMMAD, DEFENDANT PORT JERVIS LABORATORIES Plaintiffs, INC. -against- Index No. 190002/2023 BARRETTS MINERALS INC., et al., Defendants. -----------------------------------------------------------------------x Defendant Port Jervis Laboratories Inc. f/k/a Kolmar Laboratories, Inc. (“Port Jervis”) by its attorneys Clyde & Co US LLP, answering the Plaintiffs’ Verified Complaint (“Complaint”) upon information and belief alleges as follows: PARTIES 1-16. Defendant Port Jervis denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 1 through 16 of the Complaint as it pertains to the remaining defendants in the Complaint. 17. Defendant Port Jervis denies each and every allegation contained in paragraph 17 of the Complaint insofar as it relates to this Defendant. 18-21. Defendant Port Jervis denies any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs 18 through 21 of the Complaint as it pertains to the remaining defendants in the Complaint. 1 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 22-25. Defendant Port Jervis denies each and every allegation contained in paragraphs 22 through 25 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant and refers all questions of law to this Court for determination. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION: NEGLIGENCE 26. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 25 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 26 of the Complaint. 27-42. Defendant Port Jervis denies each and every allegation contained in paragraphs 27 through 42 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION: NEGLIGENCE PER SE 43. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 42 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 43 of the Complaint. 44-49. Defendant Port Jervis denies each and every allegation contained in paragraphs 44 through 49 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant and refers all questions of law to this Court for determination. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION: STRICT LIABILITY – FAILURE TO WARN 50. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 49 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 50 of the Complaint. 2 2 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 51-59. Defendant Port Jervis denies each and every allegation contained in paragraphs 51 through 59 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION: STRICT LIABILITY – MANUFACTURING DEFECT 60. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 59 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 60 of the Complaint. 61-67. Defendant Port Jervis denies each and every allegation contained in paragraphs 61 through 67 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION: STRICT LIABILITY – DESIGN DEFECT 68. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 67 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 68 of the Complaint. 69-75. Defendant Port Jervis denies each and every allegation contained in paragraphs 69 through 75 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION: MARKET SHARE LIABILITY 76. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 75 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 76 of the Complaint. 3 3 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 77-93. Defendant Port Jervis denies each and every allegation contained in paragraphs 77 through 93 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION: ALTERNATIVE/COLLECTIVE LIABILITY 94. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 93 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 94 of the Complaint. 95-100. Defendant Port Jervis denies each and every allegation contained in paragraphs 95 through 100 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE EIGHTH CAUSE OF ACTION: FRAUDULENT MISREPRESENTATION AND CONSPIRACY/CONCERT ACTION 101. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 100 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 101 of the Complaint. 102-162. Defendant Port Jervis denies each and every allegation contained in paragraphs 102 through 162 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE NINTH CAUSE OF ACTION: SPOUSAL LOSS OF CONSORTIUM 163. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 162 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 163 of the Complaint. 4 4 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 164. Defendant Port Jervis denies each and every allegation contained in paragraph 164 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE TENTH CAUSE OF ACTION: WRONGFUL DEATH 165. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 164 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 165 of the Complaint. 166. Defendant Port Jervis denies each and every allegation contained in paragraph 166 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AS AND FOR AN ANSWER TO THE ELEVENTH CAUSE OF ACTION: PUNITIVE DAMAGES 167. Defendant Port Jervis herein repeats, reiterates and realleges each and every answer to each and every allegation contained in paragraphs 1 through 166 of the Complaint with the same force and effect as if fully set forth at length herein in answer to paragraph 167 of the Complaint. 168. Defendant Port Jervis denies each and every allegation contained in paragraph 168 of the Complaint insofar as this Court has no personal jurisdiction over this Defendant. AFFIRMATIVE DEFENSES FIRST SEPARATE AFFIRMATIVE DEFENSE Defendant denies that the Plaintiff is entitled to the damages claimed or to the relief demanded. SECOND SEPARATE AFFIRMATIVE DEFENSE Each and every Count of the Complaint fails to state a claim upon which relief can be granted. THIRD SEPARATE AFFIRMATIVE DEFENSE There is an insufficiency of service of process upon this Defendant. 5 5 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 FOURTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks subject matter jurisdiction over each and every count contained in the Complaint. FIFTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over the Defendant with respect to each and every Count contained in the Complaint. SIXTH SEPARATE AFFIRMATIVE DEFENSE This Court lacks venue over the Defendant with respect to each and every Count contained in the Complaint. SEVENTH SEPARATE AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for the Defendant with respect to each and every Count contained in the Complaint. EIGHTH SEPARATE AFFIRMATIVE DEFENSE The causes of action alleged in the Complaint are barred by the applicable statutes of limitation or repose from the jurisdiction or jurisdictions whose limitations or repose provision govern. NINTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiff has failed to join a party or parties necessary for a just adjudication of this matter and have further omitted to state any reasons for such failure. TENTH SEPARATE AFFIRMATIVE DEFENSE The claims presented by the Complaint are barred by the contributing fault of Plaintiff which fault is greater than that of each Defendant or all of the Defendants. 6 6 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 ELEVENTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiff were caused by the negligence of the Plaintiff and any recovery therefore is barred. TWELFTH SEPARATE AFFIRMATIVE DEFENSE Any injuries or damages suffered by the Plaintiff were caused by the negligence of the Plaintiff and any recovery therefore must be proportionately diminished. THIRTEENTH SEPARATE AFFIRMATIVE DEFENSE Any negligence on the part of Defendant was superseded by the new and independent conduct, including negligence of Plaintiff's employer and/or other third parties, who owed a duty to Plaintiff and over whom Defendant had no control and which conduct Defendant could neither anticipate nor reasonably foresee and which superseding conduct was not a consequence of Defendant’s alleged negligence but which was the efficient cause of the injuries allegedly sustained by Plaintiff. FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE The injuries complained of by the Plaintiff are wholly or partially caused by independent means, including, inter alia, the conduct and habits of Plaintiff and exposure to other particulates in the environment. FIFTEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff was a habitual smoker, and such smoking caused any lung disease from which the Plaintiff suffered. SIXTEENTH SEPARATE AFFIRMATIVE DEFENSE The Defendant had no duty to give instructions to Plaintiff or to warn Plaintiff of any hazards attendant to the contact with, use of, or exposure to its products containing talc and/or asbestos fibers or fragments, whether known or constructively known by Defendant, because those 7 7 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 hazards were known by Plaintiff and/or other persons who controlled or supervised Plaintiff in the course of or incidental to his employment. SEVENTEENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiff’s claims to the extent that they include a prayer for equitable relief are barred on account of laches in that Plaintiff failed or neglected to maintain this action in a swift, diligent and timely fashion, all to the detriment of Defendant. EIGHTEENTH SEPARATE AFFIRMATIVE DEFENSE There was no privity of contract between Defendant and Plaintiff so Plaintiff may not recover upon any alleged breach of any express or implied warranty. NINETEENTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff’s claims if based upon the allegations of express or implied warranty are barred because no sale of goods occurred. TWENTIETH SEPARATE AFFIRMATIVE 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 law regarding strict liability. TWENTY-FIRST SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, if the Defendant’s products were used, they were used by the Plaintiff and/or other persons, in an 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 Plaintiff and/or such other parties and persons. 8 8 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 TWENTY-SECOND SEPARATE AFFIRMATIVE DEFENSE An action for breach of warranty was not available to Plaintiff during the period of the allegedly injurious exposure to, use of, or contact with products allegedly manufactured by Defendant. TWENTY-THIRD SEPARATE AFFIRMATIVE DEFENSE No warranty of any kind was extended to Plaintiff in this matter. TWENTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE If the Defendant, its servants or agents made any express warranties (allegations which the Defendant specifically denies) then the Plaintiff did not rely on the express warranties and, further, there was no such reliance by any person or entity authorized to represent the Plaintiff. TWENTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE If Defendant or its agents or servants made any warranties express or implied (allegations which the Defendant specifically denies) then the Defendant denies that it breached any of said warranties. TWENTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE If Defendant was liable, negligent or in breach of warranty, all of which it expressly denies, the Defendant's liability in any or all of those events has been terminated by the intervening acts, omissions or negligence of others over whom this Defendant had neither control, nor the right of control and for whose conduct the Defendant is not legally responsible. TWENTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE Defendant denies that there was any defect or negligent mining, processing, manufacture, design, testing, investigation, fashioning, packaging, distributing, delivery, and/or sale, in any talc product which may or may not have contained asbestos fibers and/or fragments or material referred to in the Plaintiffs’ Complaint, but if there was any defect or negligence as alleged, then the 9 9 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 Defendant is not liable as it justifiably relied upon inspection by others in the regular course of trade and business. TWENTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The utility of the products manufactured by Defendant outweighs the danger allegedly involved and, therefore, Plaintiff's claim is barred as a matter of public policy. TWENTY-NINTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff’s employer or employees were negligent with respect to the matters set forth in the Complaint, and such negligence caused in whole or in part whatever disease, injury or disability, if any, which Plaintiff may have sustained, as set forth in the Complaint. Therefore, even if Plaintiff is entitled to recover against Defendant, which Defendant specifically denies, they are not entitled to recover in the amount set forth in the Complaint because Defendant is entitled to set off any and all workmen's compensation payments against any judgment which might be rendered in Plaintiff's favor. THIRTIETH SEPARATE AFFIRMATIVE DEFENSE If Plaintiff establishes any exposure to Defendant’s products, said exposure would have been so minimal as to be insufficient to establish to a reasonable degree of probability that its product caused Plaintiff’s claimed injuries. THIRTY-FIRST SEPARATE AFFIRMATIVE DEFENSES The Plaintiff has released, settled, entered into an accord and satisfaction or otherwise compromised his claims herein, and accordingly, said claims arc barred by operation of law. THIRTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Defendant expressly denies that it manufactured, designed, and/or sold any products referred to in the Complaint which caused injury to Plaintiff. Notwithstanding, at all times and places mentioned in the Complaint, Plaintiff and/or other persons without this Defendant’s 10 10 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 knowledge and approval redesigned, modified, altered, and used this Defendant’s products contrary to instruction and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the product's character that if there was a defect in the product, which Defendant specifically denies, such defect resulted solely from the redesign, modification, alteration, or other such treatment or change and not from any act or omission by this Defendant. Therefore, said defect, if any, was created by Plaintiff and/or other persons, as the case may be, and was the direct and proximate cause of the injuries and damages, if any, that Plaintiff allegedly suffered. THIRTY-THIRD SEPARATE AFFIRMATIVE DEFENSE Plaintiff is not entitled to punitive, exemplary or enhanced damages for the following reasons: (a) Plaintiff’s claim for punitive damages is barred by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (b) Plaintiff’s claim for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as supplied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. (c) Plaintiff’s claim for punitive damages is barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. (d) Plaintiff’s claim for punitive damages is otherwise barred by applicable law. THIRTY-FOURTH SEPARATE AFFIRMATIVE 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. 11 11 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 THIRTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE At all times and places mentioned in the Complaint, the Plaintiff failed to make reasonable efforts to mitigate his injuries and damages, if any. THIRTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE The Defendant acted reasonably and with due care toward Plaintiff, and there was no negligence, gross negligence, willful, wanton or malicious misconduct, reckless indifference or reckless disregard of the rights of the Plaintiff, or malice (actual, legal or otherwise) on the part of this Defendant as to the Plaintiff. THIRTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE The Plaintiff has waived any and all claims which he seeks to assert in this action and is estopped both to assert and to recover upon such claims. THIRTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that if it supplied any talc products which may or may not have contained asbestos fibers and/or fragments, either directly or indirectly, to the Plaintiff's employers, this product was supplied in accordance with specifications established and promulgated by that employer, agencies or departments of the United States of America, other persons and/or entities. THIRTY-NINTH SEPARATE AFFIRMATIVE DEFENSE The Defendant states that any talc products which may or may not have contained asbestos fibers and/or fragments manufactured or sold by the Defendant which give rise to Plaintiff's claims herein were designed and manufactured pursuant to and in accordance with specifications mandated by the United States Government or its agencies. The knowledge of the United States Government and its agencies of any possible health hazards from use of such products were equal 12 12 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 or superior to that of the Defendant, and by reason thereof, the Defendant is entitled to such immunity from liability as exists in favor of the United States Government or its agencies. FORTIETH SEPARATE AFFIRMATIVE DEFENSE If the Plaintiff is unable to identify the manufacturer or manufacturers of the products which allegedly caused injury, the causes of action asserted by the Plaintiff fails to state a claim upon which relief can be granted, for, if relief be granted, such relief would constitute a taking of this Defendant’s property for a public use without just compensation, a violation of this Defendant’s constitutional rights. FORTY-FIRST SEPARATE AFFIRMATIVE DEFENSE If the Plaintiff is unable to identify the manufacturer or manufacturers of the products which allegedly caused the injury, the causes of action asserted by the Plaintiff fail to state a claim upon which relief can be granted because such relief would constitute a denial by this Court of Defendant’s constitutional right of equal protection under the law. FORTY-SECOND SEPARATE AFFIRMATIVE DEFENSE This Defendant alleges that any sales of talc products which may or may not have contained asbestos fibers and/or fragments made by it were made to sophisticated users of such products, and that sale to a sophisticated user of the products bars any claim of liability against this Defendant. FORTY-THIRD SEPARATE AFFIRMATIVE DEFENSE If the Plaintiff is barred from recovery, the action of his wife is also barred because it is a derivative action. FORTY-FOURTH SEPARATE AFFIRMATIVE DEFENSE Defendant avails itself of, and adopts such other defenses raised by any other Defendants as may be applicable. 13 13 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 FORTY-FIFTH SEPARATE AFFIRMATIVE DEFENSE This Defendant reserves the right to assert any and/or all applicable affirmative defense which discovery may reveal are appropriate. FORTY-SIXTH SEPARATE AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrines of res judicata and/or collateral estoppel. FORTY-SEVENTH SEPARATE AFFIRMATIVE DEFENSE The liability of this Defendant, if any, to Plaintiff for non-economic loss is limited by CPLR § 1601 et seq. to this Defendant’s equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom Plaintiff could have obtained personal jurisdiction with due diligence. FORTY-EIGHTH SEPARATE AFFIRMATIVE DEFENSE In the event Plaintiff recovers a verdict or judgment against this Defendant, then said verdict or judgment must be reduced by those amounts which have been or will replace or indemnify Plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, workers compensation or employee benefit programs. FORTY-NINTH SEPARATE AFFIRMATIVE DEFENSE If Plaintiff has settled or should settle with any entity or have any judgment against any entity rendered in their favor for any of their alleged injuries, then this Defendant is entitled to a setoff in the amount of said settlement or judgment, pursuant to Section 15-108 of New York’s General Obligations Law. FIFTIETH SEPARATE AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the bulk supplier doctrine. 14 14 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 FIFTY-FIRST SEPARATE AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the sophisticated user doctrine. FIFTY-SECOND SEPARATE AFFIRMATIVE DEFENSE Any products manufactured by Kolmar were manufactured in accordance with plans and specifications provided by others; therefore, Kolmar is not liable for any alleged injuries sustained by Plaintiff. CROSS-CLAIM FOR CONTRIBUTION Defendant Port Jervis hereby makes claim for contribution against each and every Defendant in this action. CROSS-CLAIM FOR INDEMNIFICATION While denying liability to Plaintiff as well as the damages and injuries alleged, if this Defendant is found liable to the Plaintiff for damages by reason of the alleged acts complained of, this Defendant’s alleged negligence was merely constructive, technical and passive or vicarious and Plaintiff’s damages and injuries arose with direct and primary negligence, strict liability, breach of contract and implied warranties of the said co-defendants listed in this action. ANSWERS TO ALL CROSS-CLAIMS This Defendant answers all cross-claims of co-defendants, saying: (a) All cross-claims for contribution alleged are denied. (b) All cross-claims for indemnification alleged are denied. WHEREFORE, Defendant Port Jervis Laboratories Inc. demands judgment as follows: (a) Dismissing the Complaint against it together with the costs and disbursements of this action and for any expenses incurred in the defense thereof including this Defendant’s attorneys’ fees. 15 15 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 (b) Awarding judgment, contribution and/or indemnity against other co- defendants for the full amount of any judgment or for a proportionate share thereof that Plaintiffs may recover against this Defendant together with the costs and disbursements of this action and for any expenses incurred in the defense thereof including this Defendant’s attorneys’ fees. (c) For such other equitable, declaratory or any other type of relief as this court may deem just and proper. Dated: New York, New York March 10, 2023 Yours, etc., CLYDE & CO US LLP By: /s/ Kevin C. McCaffrey Kevin C. McCaffrey The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Phone: (212) 710-3900 Fax: (212) 710-3950 Email: kevin.mccaffrey@clydeco.us Attorneys for Defendant Port Jervis Laboratories Inc. TO: Lanier Law Firm PLLC Attorneys for Plaintiffs 126 East 56th Street, 6th Floor New York, New York 10022 16 16 of 17 FILED: NEW YORK COUNTY CLERK 03/10/2023 04:59 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/10/2023 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Kevin C. McCaffrey, being duly sworn, deposes and says that I am an attorney with the law firm of Clyde & Co US LLP, that I have read the foregoing VERIFIED ANSWER OF DEFENDANT PORT JERVIS LABORATORIES INC. and knows the contents thereof, and that the same is true to my own knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. The reason this verification is made by deponent and not by Defendant is because Defendant does not reside within the County where the deponent maintains his office. KEVIN C. MCCAFFREY 17 17 of 17