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FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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DAN ALBASRY, as Trustee of the Estate of Index No. 190002/2023
NEWAL AL ASAAD, and FIRAS
MOHAMMAD, DEFENDANT CONOPCO, INC.’S
VERIFIED ANSWER TO
PLAINTIFFS’ VERIFIED AMENDED
Plaintiffs, COMPLAINT, AFFIRMATIVE
DEFENSES, CROSS-CLAIMS, AND
-against- ANSWERS TO CROSS-CLAIMS
BARRETTS MINERALS, INC., et al.,
Defendants.
----------------------------------------------------------- X
Defendant CONOPCO, INC., incorrectly sued herein as Conopco Inc. (individually,
doing business as, and as successor to Elizabeth Arden Inc. and Evyan Perfumes Inc., Parfums
International and Idea Fragrances Co.) (“CONOPCO” or “Defendant”), by its attorneys, FOLEY
& MANSFIELD, PLLP, hereby answers Plaintiffs’ Verified Amended Complaint (“Amended
Complaint”), filed on or about February 27, 2023 and alleges, upon information and belief, as
follows:
Conopco denies each and every allegation contained in Plaintiffs’ Amended
Complaint. Conopco further denies knowledge or information sufficient to form a belief as to the
truth of those allegations to the extent they pertain to persons or entities other than Conopco.
Conopco states that it understands the terms “asbestos-containing products” and “asbestos
products and materials,” as meaning products that contain asbestos as an ingredient or that
intentionally contain asbestos as part of the composition of the products. In conducting its
business, Conopco has never mined, processed, manufactured, designed, developed, tested,
fashioned, packaged, inspected, sold, distributed, supplied, delivered, installed and/or applied
asbestos. Further, Conopco never injected an asbestos-containing material into the stream of
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commerce. Conopco states that numerous epidemiological studies, both private and those done
through various government agencies, have unequivocally stated that cosmetic products,
including those containing pure, cosmetic grade talc do not cause disease. Further, over the
course of several decades, multiple statements of the U.S. Government, including the FDA,
which regulates cosmetic products, have unequivocally stated that there is no basis or reason to
include asbestos-related warnings on cosmetic talc products as they have not been shown to have
any adverse effect on human health. Accordingly, Conopco denies that Plaintiff was ever exposed
to any “asbestos-containing products” or any “asbestos products and materials” manufactured,
sold, or distributed by Conopco, and it further denies that any Conopco product ever caused or
contributed to any alleged illness by Plaintiff.
THE PARTIES
1. CONOPCO denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 1 through 21 (inclusive) of the Amended
Complaint, and refers all questions of law to the Court.
2. CONOPCO denies the allegations contained in paragraph 22 of the Amended
Complaint, except with respect to its state of incorporation, and refers all questions of law to the
Court.
3. CONOPCO denies the allegations contained in paragraphs 23 through 26
(inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 23 through 26 (inclusive) of the Amended Complaint insofar as those paragraphs
are not directed at CONOPCO, and refers all questions of law to the Court.
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ANSWERING THE FIRST CAUSE OF ACTION FOR NEGLIGENCE
4. With regard to paragraph 27 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 26 (inclusive) of the
Amended Complaint as if more fully set forth herein.
5. CONOPCO denies the allegations contained in paragraphs 28 through 43
(inclusive) of the Amended Complaint, including all subparts therein, to the extent that they apply
to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraphs 28 trough 43 (inclusive) of the Amended Complaint,
including all subparts therein, insofar as those paragraphs are not directed at CONOPCO, and
refers all questions of law to the Court.
ANSWERING THE SECOND CAUSE OF ACTION FOR NEGLIGENCE PER SE
6. With regard to paragraph 44 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 43 (inclusive) of the
Amended Complaint as if more fully set forth herein.
7. CONOPCO denies the allegations contained in paragraphs 45 through 50
(inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 45 through 50 (inclusive) of the Amended Complaint insofar as those paragraphs
are not directed at CONOPCO, and refers all questions of law to the Court.
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ANSWERING THE THIRD CAUSE OF ACTION FOR STRICT LIABILITY –
FAILURE TO WARN
8. With regard to paragraph 51 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 50 (inclusive) of the
Amended Complaint as if more fully set forth herein.
9. CONOPCO denies the allegations contained in paragraphs 52 through 60
(inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 52 through 60 (inclusive) of the Amended Complaint insofar as those paragraphs
are not directed at CONOPCO, and refers all questions of law to the Court.
ANSWERING THE FOURTH CAUSE OF ACTION FOR STRICT LIABILITY –
MANUFACTURING DEFECT
10. With regard to paragraph 61 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 60 (inclusive) of the
Amended Complaint as if more fully set forth herein.
11. CONOPCO denies the allegations contained in paragraphs 62 through 68
(inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 62 through 68 (inclusive) of the Amended Complaint insofar as those paragraphs
are not directed at CONOPCO, and refers all questions of law to the Court.
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ANSWERING THE FIFTH CAUSE OF ACTION FOR STRICT LIABILITY – DESIGN
DEFECT
12. With regard to paragraph 69 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 68 (inclusive) of the
Amended Complaint as if more fully set forth herein.
13. CONOPCO denies the allegations contained in paragraphs 70 through 76
(inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies
knowledge or information sufficient to form a belief as to the truth of the allegations contained
in paragraphs 70 through 76 (inclusive) of the Amended Complaint insofar as those paragraphs
are not directed at CONOPCO, and refers all questions of law to the Court.
ANSWERING THE SIXTH CAUSE OF ACTION FOR MARKET SHARE LIABILITY
14. With regard to paragraph 77 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 76 (inclusive) of the
Amended Complaint as if more fully set forth herein.
15. CONOPCO denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 78 through 94 (inclusive) of the Amended
Complaint, including all subparts therein, as these paragraphs are not directed at CONOPCO,
and refers all questions of law to the Court.
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ANSWERING THE SEVENTH CAUSE OF ACTION FOR ALTERNATIVE /
COLLECTIVE LIABILITY AGAINST ALL TALC SUPPLIER DEFENDANTS
16. With regard to paragraph 95 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 94 (inclusive) of the
Amended Complaint as if more fully set forth herein.
17. CONOPCO denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 96 through 101 (inclusive) of the Amended
Complaint as these paragraphs are not directed at CONOPCO, and refers all questions of law to
the Court.
ANSWERING THE EIGHTH CAUSE OF ACTION FOR FRAUDULENT
MISREPRESENTATION AND CONSPIRACY/CONCERT OF ACTION
18. With regard to paragraph 102 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 101 (inclusive) of the
Amended Complaint as if more fully set forth herein.
19. CONOPCO denies the allegations contained in paragraphs 103 through 163
(inclusive) of the Amended Complaint, including all subparts therein, to the extent that they apply
to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraphs 103 through 163 (inclusive) of the Amended Complaint,
including all subparts therein, insofar as these paragraphs are not directed at CONOPCO, and
refers all questions of law to the Court.
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ANSWERING THE NINTH CAUSE OF ACTION FOR SPOUSAL LOSS OF
CONSORTIUM
20. With regard to paragraph 164 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 163 (inclusive) of the
Amended Complaint as if more fully set forth herein.
21. CONOPCO denies the allegations contained in paragraph 165 of the Amended
Complaint to the extent that they apply to CONOPCO, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in paragraph 165 of the
Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all
questions of law to the Court.
ANSWERING THE TENTH CAUSE OF ACTION FOR WRONGFUL DEATH
22. With regard to paragraph 166 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 165 (inclusive) of the
Amended Complaint as if more fully set forth herein.
23. CONOPCO denies the allegations contained in paragraph 167 of the Amended
Complaint to the extent that they apply to CONOPCO, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in paragraph 167 of the
Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all
questions of law to the Court.
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ANSWERING THE ELEVENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES
24. With regard to paragraph 168 of the Amended Complaint, CONOPCO repeats,
reiterates and realleges each and every response as to paragraphs 1 through 167 (inclusive) of the
Amended Complaint as if more fully set forth herein.
25. CONOPCO denies the allegations contained in paragraph 169 of the Amended
Complaint to the extent that they apply to CONOPCO, denies knowledge or information
sufficient to form a belief as to the truth of the allegations contained in paragraph 169 of the
Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all
questions of law to the Court.
FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ Amended Complaint and each and every purported cause of action or count
thereof fails to state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claims are time barred by reason of the applicable statute(s) of limitations.
THIRD AFFIRMATIVE DEFENSE
In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections 4 and 12 as
grounds for maintaining this action, these sections are unconstitutional and this action is time
barred.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the operation of the doctrine of laches as Plaintiffs
unreasonably delayed in the bringing of this action and thereby prejudiced the rights of
Defendant.
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FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs have waived all claims against CONOPCO.
SEVENTH AFFIRMATIVE DEFENSE
This Court lacks jurisdiction over the subject matter over each and every Count contained
in Plaintiffs’ Amended Complaint.
EIGHTH AFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over CONOPCO with respect to each and every
Count contained in Plaintiffs’ Amended Complaint.
NINTH AFFIRMATIVE DEFENSE
The venue of this action is improper.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs lack the capacity, standing or authority to bring this action, in whole or in part.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the doctrines of res judicata and collateral estoppel.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs’ speculative, uncertain and contingent damages have not accrued and are not
recoverable.
THIRTEENTH AFFIRMATIVE DEFENSE
Joinder of individual Plaintiffs in this action or at trial is improper because they do not
assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same
transaction, occurrence, or series of transactions or occurrences.
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FOURTEENTH AFFIRMATIVE DEFENSE
This cause of action must be dismissed in the event Plaintiffs have another action pending
against CONOPCO for the same cause of action in another court.
FIFTEENTH AFFIRMATIVE DEFENSE
In the event Plaintiffs executed a settlement agreement releasing and discharging
CONOPCO from all claims arising out of Plaintiffs’ alleged injury, all claims alleged by
Plaintiffs should be dismissed.
SIXTEENTH AFFIRMATIVE DEFENSE
Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiffs
have given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor
of CONOPCO, Plaintiffs’ claims herein are reduced to the extent of any amount stipulated by
the release or covenant, in the amount of the consideration paid for it, or in the amount of the
released tortfeasor’s equitable share of the damages, whichever is greater.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiffs were not injured by exposure to any CONOPCO products.
EIGHTEENTH AFFIRMATIVE DEFENSE
In the event that Plaintiffs were employed by any of the Defendants, Plaintiffs’ sole and
exclusive remedy is under the Workers’ Compensation Law of the State of New York.
NINETEENTH AFFIRMATIVE DEFENSE
Insofar as the Amended Complaint, and each cause of action considered separately, allege
a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries,
the amount of damages recoverable thereon must be diminished by reason of the culpable conduct
attributable to Plaintiffs, including contributory negligence and assumption of risk, in the
proportion which the culpable conduct attributable to Plaintiffs.
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TWENTIETH AFFIRMATIVE DEFENSE
Insofar as the Amended Complaint, and each cause of action considered separately, allege
a cause of action accruing on or after September 1, 1975 each such cause of action is barred by
reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and
assumption of risk.
TWENTY-FIRST AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were injured as alleged in the Amended Complaint, which
CONOPCO denies, said injury was proximately caused by the negligence, breach of warranty
and strict liability of persons and entities other than CONOPCO.
TWENTY-SECOND AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were injured as alleged in the Amended Complaint, which
CONOPCO denies, such injury was the result of intervening and superseding acts or omissions
of parties or non-parties over whom CONOPCO had no supervision or control or right to
supervise or control.
TWENTY-THIRD AFFIRMATIVE DEFENSE
At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was superior to that
of CONOPCO with respect to possible health hazards associated with Plaintiffs’ employment,
and, therefore, if there was any duty to warn or provide protection to Plaintiffs, it was the duty
of said employer, not of CONOPCO, and breach of that duty was an intervening and superseding
cause of the injuries allegedly sustained by Plaintiffs.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
At all times during the conduct of their corporate operations, the agents, servants and
employees of CONOPCO used proper methods in their production activities in conformity to the
available knowledge and research of the scientific and industrial communities.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs sustained injuries from the use of CONOPCO products, which
CONOPCO denies, such injuries resulted from the unforeseeable misuse, abuse, alteration,
modification, and unauthorized handling of the product by Plaintiffs, or by third-parties, over
whom CONOPCO had no control or right to control.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs voluntarily assumed the risks associated with the use of or exposure to the
products at issue.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
CONOPCO had no knowledge or reason to know of any alleged risks associated with
finished asbestos-containing products at any time during the purported peril complained of in the
Amended Complaint.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs contributed to the injuries alleged by the use of other substances, products,
medications and drugs.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ injuries were caused directly, solely and proximately by sensitivities,
idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general public, of
which CONOPCO neither knew, had reason to know, nor could have foreseen.
THIRTIETH AFFIRMATIVE DEFENSE
As to all causes of action pleaded in the Amended Complaint which are based upon
expressed or implied representations, such causes of action are legally insufficient as against
CONOPCO as there was no privity of contract between Plaintiffs and CONOPCO.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs never purchased, directly or indirectly, any asbestos-containing product or
materials from CONOPCO, nor did Plaintiffs ever receive or rely upon any representation
allegedly made by CONOPCO.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs lack capacity and standing to maintain a claim for relief against CONOPCO
with respect to injuries alleged to have been suffered by Plaintiffs.
THIRTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiffs were exposed to any product manufactured by CONOPCO,
which CONOPCO denies, said exposure was de minimis and not a substantial contributing factor
to any asbestos-related disease which Plaintiffs may have developed, thus requiring dismissal of
the Amended Complaint against CONOPCO.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
indispensable parties.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs are entitled to damages, which CONOPCO denies,
CONOPCO is entitled to a set off for all Workers’ Compensation payments received by
Plaintiffs.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
In accordance with CPLR § 1601, CONOPCO’s liability for non-economic loss is limited
to its equitable share of the total liability for non-economic loss.
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THIRTY-SEVENTH AFFIRMATIVE DEFENSE
In accordance with CPLR § 4545(c), CONOPCO is entitled to a set-off for any past or
future costs or expenses incurred or to be incurred by Plaintiffs for medical care, custodial care
of rehabilitation services, loss of earnings or other economic loss, which has been or will with
reasonable certainty be replaced or indemnified in whole or in part from a collateral source.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
At all relevant times, the state of the medical, scientific, and industrial knowledge, the
state of the art, practice, and prevailing industry standards regarding asbestos-containing products
was such that CONOPCO neither knew, had reason to know, nor could have known of any
foreseeable or significant risk or harm to Plaintiffs in the normal or expected use of CONOPCO’s
products, and, accordingly there was no duty of CONOPCO to warn Plaintiffs and that, to the
extent such duty arose, adequate warnings were either given or were not necessary under all
circumstances.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Any injuries sustained by Plaintiffs resulted from Plaintiffs’ alleged use of or exposure to
asbestos or asbestos-containing products manufactured and sold in strict compliance with
mandatory specifications established by persons or entities other than CONOPCO, including,
without limitation, agencies, agents and departments of the United States, which persons or
entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than
that of CONOPCO concerning the properties and characteristics of asbestos and asbestos-
containing products.
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FORTIETH AFFIRMATIVE DEFENSE
Any asbestos-containing products allegedly attributable to CONOPCO were supplied
according to the purchaser’s or user’s specifications and standards.
FORTY-FIRST AFFIRMATIVE DEFENSE
CONOPCO was under no legal duty to warn Plaintiffs of any hazards from the use of any
asbestos-containing products. The actual purchasers and those under the purchasers’ control,
Plaintiffs’ employer(s), and the owners and lessors of the properties at which Plaintiffs allege
exposure to such products, were in a far better position to warn Plaintiffs and, if any such warning
was legally required, which is expressly denied; their failure to do so was a superseding and
proximate cause of Plaintiffs’ alleged injuries.
FORTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs were reasonably and adequately warned of any alleged risks associated with the
use of or exposure to asbestos-containing products.
FORTY-THIRD AFFIRMATIVE DEFENSE
Timely and/or proper notice was not given to CONOPCO as to any alleged breach of
warranty.
FORTY-FOURTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs’ claims are based on an alleged breach of warranty, Plaintiffs did
not rely on any warranty.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Any oral warranties upon which Plaintiffs allegedly relied are inadmissible under the
Statute of Frauds.
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FORTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that the causes of action pleaded by Plaintiffs fail to accord with the Uniform
Commercial Code, including but not limited to Section 2-725 thereof, the Plaintiffs’ Amended
Complaint and Standard Complaint are time-barred.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Any claims by Plaintiffs for exemplary and punitive damages are barred because such
damages are not recoverable or warranted.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
CONOPCO’s conduct was not reckless, malicious, willful or grossly negligent, and
consequently, Plaintiffs are not entitled to exemplary and punitive damages.
FORTY-NINTH AFFIRMATIVE DEFENSE
Any 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, as Article I, Section 6 of the New York State Constitution.
FIFTIETH AFFIRMATIVE DEFENSE
Any claim for punitive damages is barred by the ex post facto clause of Article I, Section
10 of the United States Constitution.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Any claim for punitive damages is barred by the proscription of Article I, Section 5 of the
New York State Constitution prohibiting the imposition of excessiveness.
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FIFTY-SECOND AFFIRMATIVE DEFENSE
Any claim for punitive damages violates CONOPCO’s right to procedural due process as
provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article
I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New
York.
FIFTY-THIRD AFFIRMATIVE DEFENSE
Any claim for punitive damages violates CONOPCO’s right to substantive due process
as provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article
I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New
York.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Punitive or exemplary damages cannot be awarded against CONOPCO for any of the
alleged actions or omissions of any of CONOPCO’s predecessors because there is not a sufficient
degree of identity between this defendant and any of its predecessors to justify such an award.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
To the extent the law of any other jurisdiction is applicable to this action, any demand for
punitive damages is barred by the applicable proscriptions of the constitution of such jurisdiction.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
CONOPCO denies that Plaintiffs had any exposure to any asbestos product mined,
processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
delivered, sold, and/or otherwise placed in the stream of commerce by CONOPCO, and more
particularly denies upon information and belief that CONOPCO mined, processed,
manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold
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and/or otherwise placed in the stream of commerce any asbestos product at the times and upon
the dates alleged in the Amended Complaint herein.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
CONOPCO denies specifically that, during the periods of exposure alleged in the
Amended Complaint by the Plaintiffs, it mined, processed, manufactured, supplied, developed,
tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of
commerce a substantial and/or any percentage of the asbestos products to which Plaintiffs were
caused to come into contact and which Plaintiffs were caused to breathe, inhale and digest and
which thereby caused the Plaintiffs’ injuries and resulting in damages alleged in the Amended
Complaint herein.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Upon information and belief, Plaintiffs failed to mitigate or otherwise act to lessen or
reduce the injuries and disability alleged in the Amended Complaint herein.
FIFTY-NINTH AFFIRMATIVE DEFENSE
CONOPCO denies that the asbestos products alleged in Plaintiffs’ Amended Complaint
are products within the meaning and scope of the Restatement of Torts § 402A, and as such the
Amended Complaint fails to state a cause of action in strict liability.
SIXTIETH AFFIRMATIVE DEFENSE
Defendant has been denied due process in being compelled to proceed to trial on an
accelerated basis without opportunity to engage in meaningful discovery and/or to develop its
defenses to liability.
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SIXTY-FIRST AFFIRMATIVE DEFENSE
Insofar as Plaintiffs’ claims against CONOPCO stem from the alleged misconduct,
negligence or other wrongful act or tort of CONOPCO, or any purported corporate predecessor,
affiliate or entity related to CONOPCO, Plaintiffs’ claims are barred because CONOPCO was
not responsible for any such acts and CONOPCO has no successor liability with regard to any
such entity/entities.
SIXTY-SECOND AFFIRMATIVE DEFENSE
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 herein. In addition, CONOPCO will
rely upon any and all other further defenses which become available or appear during discovery
in this action and hereby specifically reserves its right to amend its answer for the purpose of
asserting any such additional affirmative defenses.
SIXTY-THIRD AFFIRMATIVE DEFENSE
CONOPCO may have one or more defenses founded upon documentary evidence.
SIXTY-FOURTH AFFIRMATIVE DEFENSE
The cause of action may not be maintained because of arbitration and award, collateral
estoppel, discharge in bankruptcy, infancy, or other disability of the moving party, payment,
release, res judicata, statute of limitations, or statute of frauds.
SIXTY-FIFTH AFFIRMATIVE DEFENSE
The Court may not have jurisdiction in the action, to the extent that service was made
under Section 314 or Section 315 of the CPLR.
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SIXTY-SIXTH AFFIRMATIVE DEFENSE
This Court is considered a forum non conveniens for CONOPCO with respect to each and
every Count contained in Plaintiffs’ Amended Complaint.
SIXTY-SEVENTH AFFIRMATIVE DEFENSE
CONOPCO alleges that any sales of asbestos-containing products 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.
SIXTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for premises liability is barred because CONOPCO did not exercise
control or supervise Plaintiffs’ work at any facility.
SIXTY-NINTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs assert a claim under Sections 240 and/or 241 of the Labor Law,
Plaintiffs’ claims under Sections 240 and 241 of the Labor Law should be dismissed because
CONOPCO was not an owner, contractor, or agent of an owner or contractor to which Sections
240 and 241 apply.
SEVENTIETH AFFIRMATIVE DEFENSE
This action is barred under the government contractor’s defense theory.
SEVENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred inasmuch as they are preempted by one or more statutes,
rules, standards, and/or regulations of the United States Government including, but not limited
to, the Hazards Communication Standard, 29 C.F.R. §1910.1200.
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SEVENTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claim for collective liability is barred because all or a substantial share of the
market of all potential tortfeasors are not before the Court.
SEVENTY-THIRD AFFIRMATIVE DEFENSE
Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight
Insulation, Owens-Coming and/or Standard Insulations, W.R. Grace and all other entities in
Bankruptcy relating thereto, would be in violation of CONOPCO’s constitutional rights.
SEVENTY-FOURTH AFFIRMATIVE DEFENSE
If Plaintiffs are barred from recovery, the action of Plaintiff’s spouse is also barred
because it is a derivative action.
SEVENTY-FIFTH AFFIRMATIVE DEFENSE
CONOPCO had no duty to warn Plaintiffs because Plaintiffs were advised or should have
been advised of any alleged hazards associated with the use of the products at issue by learned
intermediaries for whom CONOPCO was not responsible and over whom CONOPCO exercised
no control or direction and, therefore, CONOPCO is not liable to Plaintiffs under a failure to
warn theory.
SEVENTY-SIXTH AFFIRMATIVE DEFENSE
To the extent Plaintiffs assert a loss of consortium claim, such claim is barred as a matter
of law because Plaintiffs’ alleged exposure to asbestos predates the date of Plaintiffs’ marriage.
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FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------- X DAN ALBASRY, as Trustee of the Estate of Index No. 190002/2023 NEWAL AL ASAAD, and FIRAS MOHAMMAD, DEFENDANT CONOPCO, INC.’S VERIFIED ANSWER TO PLAINTIFFS’ VERIFIED AMENDED Plaintiffs, COMPLAINT, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND -against- ANSWERS TO CROSS-CLAIMS BARRETTS MINERALS, INC., et al., Defendants. ----------------------------------------------------------- X Defendant CONOPCO, INC., incorrectly sued herein as Conopco Inc. (individually, doing business as, and as successor to Elizabeth Arden Inc. and Evyan Perfumes Inc., Parfums International and Idea Fragrances Co.) (“CONOPCO” or “Defendant”), by its attorneys, FOLEY & MANSFIELD, PLLP, hereby answers Plaintiffs’ Verified Amended Complaint (“Amended Complaint”), filed on or about February 27, 2023 and alleges, upon information and belief, as follows: Conopco denies each and every allegation contained in Plaintiffs’ Amended Complaint. Conopco further denies knowledge or information sufficient to form a belief as to the truth of those allegations to the extent they pertain to persons or entities other than Conopco. Conopco states that it understands the terms “asbestos-containing products” and “asbestos products and materials,” as meaning products that contain asbestos as an ingredient or that intentionally contain asbestos as part of the composition of the products. In conducting its business, Conopco has never mined, processed, manufactured, designed, developed, tested, fashioned, packaged, inspected, sold, distributed, supplied, delivered, installed and/or applied asbestos. Further, Conopco never injected an asbestos-containing material into the stream of 6374711 v1 1 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 commerce. Conopco states that numerous epidemiological studies, both private and those done through various government agencies, have unequivocally stated that cosmetic products, including those containing pure, cosmetic grade talc do not cause disease. Further, over the course of several decades, multiple statements of the U.S. Government, including the FDA, which regulates cosmetic products, have unequivocally stated that there is no basis or reason to include asbestos-related warnings on cosmetic talc products as they have not been shown to have any adverse effect on human health. Accordingly, Conopco denies that Plaintiff was ever exposed to any “asbestos-containing products” or any “asbestos products and materials” manufactured, sold, or distributed by Conopco, and it further denies that any Conopco product ever caused or contributed to any alleged illness by Plaintiff. THE PARTIES 1. CONOPCO denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 through 21 (inclusive) of the Amended Complaint, and refers all questions of law to the Court. 2. CONOPCO denies the allegations contained in paragraph 22 of the Amended Complaint, except with respect to its state of incorporation, and refers all questions of law to the Court. 3. CONOPCO denies the allegations contained in paragraphs 23 through 26 (inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 23 through 26 (inclusive) of the Amended Complaint insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. 2 6374711 v1 2 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE FIRST CAUSE OF ACTION FOR NEGLIGENCE 4. With regard to paragraph 27 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 26 (inclusive) of the Amended Complaint as if more fully set forth herein. 5. CONOPCO denies the allegations contained in paragraphs 28 through 43 (inclusive) of the Amended Complaint, including all subparts therein, to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 28 trough 43 (inclusive) of the Amended Complaint, including all subparts therein, insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. ANSWERING THE SECOND CAUSE OF ACTION FOR NEGLIGENCE PER SE 6. With regard to paragraph 44 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 43 (inclusive) of the Amended Complaint as if more fully set forth herein. 7. CONOPCO denies the allegations contained in paragraphs 45 through 50 (inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 45 through 50 (inclusive) of the Amended Complaint insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. 3 6374711 v1 3 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE THIRD CAUSE OF ACTION FOR STRICT LIABILITY – FAILURE TO WARN 8. With regard to paragraph 51 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 50 (inclusive) of the Amended Complaint as if more fully set forth herein. 9. CONOPCO denies the allegations contained in paragraphs 52 through 60 (inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 52 through 60 (inclusive) of the Amended Complaint insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. ANSWERING THE FOURTH CAUSE OF ACTION FOR STRICT LIABILITY – MANUFACTURING DEFECT 10. With regard to paragraph 61 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 60 (inclusive) of the Amended Complaint as if more fully set forth herein. 11. CONOPCO denies the allegations contained in paragraphs 62 through 68 (inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 62 through 68 (inclusive) of the Amended Complaint insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. 4 6374711 v1 4 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE FIFTH CAUSE OF ACTION FOR STRICT LIABILITY – DESIGN DEFECT 12. With regard to paragraph 69 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 68 (inclusive) of the Amended Complaint as if more fully set forth herein. 13. CONOPCO denies the allegations contained in paragraphs 70 through 76 (inclusive) of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 70 through 76 (inclusive) of the Amended Complaint insofar as those paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. ANSWERING THE SIXTH CAUSE OF ACTION FOR MARKET SHARE LIABILITY 14. With regard to paragraph 77 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 76 (inclusive) of the Amended Complaint as if more fully set forth herein. 15. CONOPCO denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 78 through 94 (inclusive) of the Amended Complaint, including all subparts therein, as these paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. 5 6374711 v1 5 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE SEVENTH CAUSE OF ACTION FOR ALTERNATIVE / COLLECTIVE LIABILITY AGAINST ALL TALC SUPPLIER DEFENDANTS 16. With regard to paragraph 95 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 94 (inclusive) of the Amended Complaint as if more fully set forth herein. 17. CONOPCO denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 96 through 101 (inclusive) of the Amended Complaint as these paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. ANSWERING THE EIGHTH CAUSE OF ACTION FOR FRAUDULENT MISREPRESENTATION AND CONSPIRACY/CONCERT OF ACTION 18. With regard to paragraph 102 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 101 (inclusive) of the Amended Complaint as if more fully set forth herein. 19. CONOPCO denies the allegations contained in paragraphs 103 through 163 (inclusive) of the Amended Complaint, including all subparts therein, to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 103 through 163 (inclusive) of the Amended Complaint, including all subparts therein, insofar as these paragraphs are not directed at CONOPCO, and refers all questions of law to the Court. 6 6374711 v1 6 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE NINTH CAUSE OF ACTION FOR SPOUSAL LOSS OF CONSORTIUM 20. With regard to paragraph 164 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 163 (inclusive) of the Amended Complaint as if more fully set forth herein. 21. CONOPCO denies the allegations contained in paragraph 165 of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 165 of the Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all questions of law to the Court. ANSWERING THE TENTH CAUSE OF ACTION FOR WRONGFUL DEATH 22. With regard to paragraph 166 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 165 (inclusive) of the Amended Complaint as if more fully set forth herein. 23. CONOPCO denies the allegations contained in paragraph 167 of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 167 of the Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all questions of law to the Court. 7 6374711 v1 7 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 ANSWERING THE ELEVENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES 24. With regard to paragraph 168 of the Amended Complaint, CONOPCO repeats, reiterates and realleges each and every response as to paragraphs 1 through 167 (inclusive) of the Amended Complaint as if more fully set forth herein. 25. CONOPCO denies the allegations contained in paragraph 169 of the Amended Complaint to the extent that they apply to CONOPCO, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 169 of the Amended Complaint insofar as this paragraph is not directed at CONOPCO, and refers all questions of law to the Court. FIRST AFFIRMATIVE DEFENSE Plaintiffs’ Amended Complaint and each and every purported cause of action or count thereof fails to state facts sufficient to constitute a cause or causes of action against Defendant. SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claims are time barred by reason of the applicable statute(s) of limitations. THIRD AFFIRMATIVE DEFENSE In the event that Plaintiffs rely on New York Law, L. 1986 C. 682 Sections 4 and 12 as grounds for maintaining this action, these sections are unconstitutional and this action is time barred. FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the operation of the doctrine of laches as Plaintiffs unreasonably delayed in the bringing of this action and thereby prejudiced the rights of Defendant. 8 6374711 v1 8 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the operation of the doctrine of estoppel. SIXTH AFFIRMATIVE DEFENSE Plaintiffs have waived all claims against CONOPCO. SEVENTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the subject matter over each and every Count contained in Plaintiffs’ Amended Complaint. EIGHTH AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over CONOPCO with respect to each and every Count contained in Plaintiffs’ Amended Complaint. NINTH AFFIRMATIVE DEFENSE The venue of this action is improper. TENTH AFFIRMATIVE DEFENSE Plaintiffs lack the capacity, standing or authority to bring this action, in whole or in part. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred by the doctrines of res judicata and collateral estoppel. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs’ speculative, uncertain and contingent damages have not accrued and are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE Joinder of individual Plaintiffs in this action or at trial is improper because they do not assert any right to relief jointly, severally, or, in the alternative, do not arise out of the same transaction, occurrence, or series of transactions or occurrences. 9 6374711 v1 9 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 FOURTEENTH AFFIRMATIVE DEFENSE This cause of action must be dismissed in the event Plaintiffs have another action pending against CONOPCO for the same cause of action in another court. FIFTEENTH AFFIRMATIVE DEFENSE In the event Plaintiffs executed a settlement agreement releasing and discharging CONOPCO from all claims arising out of Plaintiffs’ alleged injury, all claims alleged by Plaintiffs should be dismissed. SIXTEENTH AFFIRMATIVE DEFENSE Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiffs have given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor of CONOPCO, Plaintiffs’ claims herein are reduced to the extent of any amount stipulated by the release or covenant, in the amount of the consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the damages, whichever is greater. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs were not injured by exposure to any CONOPCO products. EIGHTEENTH AFFIRMATIVE DEFENSE In the event that Plaintiffs were employed by any of the Defendants, Plaintiffs’ sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York. NINETEENTH AFFIRMATIVE DEFENSE Insofar as the Amended Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs. 10 6374711 v1 10 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 TWENTIETH AFFIRMATIVE DEFENSE Insofar as the Amended Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 1975 each such cause of action is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk. TWENTY-FIRST AFFIRMATIVE DEFENSE To the extent that Plaintiffs were injured as alleged in the Amended Complaint, which CONOPCO denies, said injury was proximately caused by the negligence, breach of warranty and strict liability of persons and entities other than CONOPCO. TWENTY-SECOND AFFIRMATIVE DEFENSE To the extent that Plaintiffs were injured as alleged in the Amended Complaint, which CONOPCO denies, such injury was the result of intervening and superseding acts or omissions of parties or non-parties over whom CONOPCO had no supervision or control or right to supervise or control. TWENTY-THIRD AFFIRMATIVE DEFENSE At all times relevant hereto, the knowledge of Plaintiffs’ employer(s) was superior to that of CONOPCO with respect to possible health hazards associated with Plaintiffs’ employment, and, therefore, if there was any duty to warn or provide protection to Plaintiffs, it was the duty of said employer, not of CONOPCO, and breach of that duty was an intervening and superseding cause of the injuries allegedly sustained by Plaintiffs. TWENTY-FOURTH AFFIRMATIVE DEFENSE At all times during the conduct of their corporate operations, the agents, servants and employees of CONOPCO used proper methods in their production activities in conformity to the available knowledge and research of the scientific and industrial communities. 11 6374711 v1 11 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 TWENTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs sustained injuries from the use of CONOPCO products, which CONOPCO denies, such injuries resulted from the unforeseeable misuse, abuse, alteration, modification, and unauthorized handling of the product by Plaintiffs, or by third-parties, over whom CONOPCO had no control or right to control. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs voluntarily assumed the risks associated with the use of or exposure to the products at issue. TWENTY-SEVENTH AFFIRMATIVE DEFENSE CONOPCO had no knowledge or reason to know of any alleged risks associated with finished asbestos-containing products at any time during the purported peril complained of in the Amended Complaint. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs contributed to the injuries alleged by the use of other substances, products, medications and drugs. TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs’ injuries were caused directly, solely and proximately by sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiffs and not found in the general public, of which CONOPCO neither knew, had reason to know, nor could have foreseen. THIRTIETH AFFIRMATIVE DEFENSE As to all causes of action pleaded in the Amended Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against CONOPCO as there was no privity of contract between Plaintiffs and CONOPCO. 12 6374711 v1 12 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 THIRTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs never purchased, directly or indirectly, any asbestos-containing product or materials from CONOPCO, nor did Plaintiffs ever receive or rely upon any representation allegedly made by CONOPCO. THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs lack capacity and standing to maintain a claim for relief against CONOPCO with respect to injuries alleged to have been suffered by Plaintiffs. THIRTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiffs were exposed to any product manufactured by CONOPCO, which CONOPCO denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have developed, thus requiring dismissal of the Amended Complaint against CONOPCO. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable parties. THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs are entitled to damages, which CONOPCO denies, CONOPCO is entitled to a set off for all Workers’ Compensation payments received by Plaintiffs. THIRTY-SIXTH AFFIRMATIVE DEFENSE In accordance with CPLR § 1601, CONOPCO’s liability for non-economic loss is limited to its equitable share of the total liability for non-economic loss. 13 6374711 v1 13 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 THIRTY-SEVENTH AFFIRMATIVE DEFENSE In accordance with CPLR § 4545(c), CONOPCO is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiffs for medical care, custodial care of rehabilitation services, loss of earnings or other economic loss, which has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source. THIRTY-EIGHTH AFFIRMATIVE DEFENSE At all relevant times, the state of the medical, scientific, and industrial knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-containing products was such that CONOPCO neither knew, had reason to know, nor could have known of any foreseeable or significant risk or harm to Plaintiffs in the normal or expected use of CONOPCO’s products, and, accordingly there was no duty of CONOPCO to warn Plaintiffs and that, to the extent such duty arose, adequate warnings were either given or were not necessary under all circumstances. THIRTY-NINTH AFFIRMATIVE DEFENSE Any injuries sustained by Plaintiffs resulted from Plaintiffs’ alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than CONOPCO, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that of CONOPCO concerning the properties and characteristics of asbestos and asbestos- containing products. 14 6374711 v1 14 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 FORTIETH AFFIRMATIVE DEFENSE Any asbestos-containing products allegedly attributable to CONOPCO were supplied according to the purchaser’s or user’s specifications and standards. FORTY-FIRST AFFIRMATIVE DEFENSE CONOPCO was under no legal duty to warn Plaintiffs of any hazards from the use of any asbestos-containing products. The actual purchasers and those under the purchasers’ control, Plaintiffs’ employer(s), and the owners and lessors of the properties at which Plaintiffs allege exposure to such products, were in a far better position to warn Plaintiffs and, if any such warning was legally required, which is expressly denied; their failure to do so was a superseding and proximate cause of Plaintiffs’ alleged injuries. FORTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs were reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. FORTY-THIRD AFFIRMATIVE DEFENSE Timely and/or proper notice was not given to CONOPCO as to any alleged breach of warranty. FORTY-FOURTH AFFIRMATIVE DEFENSE To the extent Plaintiffs’ claims are based on an alleged breach of warranty, Plaintiffs did not rely on any warranty. FORTY-FIFTH AFFIRMATIVE DEFENSE Any oral warranties upon which Plaintiffs allegedly relied are inadmissible under the Statute of Frauds. 15 6374711 v1 15 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 FORTY-SIXTH AFFIRMATIVE DEFENSE To the extent that the causes of action pleaded by Plaintiffs fail to accord with the Uniform Commercial Code, including but not limited to Section 2-725 thereof, the Plaintiffs’ Amended Complaint and Standard Complaint are time-barred. FORTY-SEVENTH AFFIRMATIVE DEFENSE Any claims by Plaintiffs for exemplary and punitive damages are barred because such damages are not recoverable or warranted. FORTY-EIGHTH AFFIRMATIVE DEFENSE CONOPCO’s conduct was not reckless, malicious, willful or grossly negligent, and consequently, Plaintiffs are not entitled to exemplary and punitive damages. FORTY-NINTH AFFIRMATIVE DEFENSE Any 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, as Article I, Section 6 of the New York State Constitution. FIFTIETH AFFIRMATIVE DEFENSE Any claim for punitive damages is barred by the ex post facto clause of Article I, Section 10 of the United States Constitution. FIFTY-FIRST AFFIRMATIVE DEFENSE Any claim for punitive damages is barred by the proscription of Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessiveness. 16 6374711 v1 16 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 FIFTY-SECOND AFFIRMATIVE DEFENSE Any claim for punitive damages violates CONOPCO’s right to procedural due process as provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New York. FIFTY-THIRD AFFIRMATIVE DEFENSE Any claim for punitive damages violates CONOPCO’s right to substantive due process as provided by the Fifth and Fourteenth Amendment of the United States Constitution and Article I, Sections l and 6, and all other applicable provisions, of the Constitution of the State of New York. FIFTY-FOURTH AFFIRMATIVE DEFENSE Punitive or exemplary damages cannot be awarded against CONOPCO for any of the alleged actions or omissions of any of CONOPCO’s predecessors because there is not a sufficient degree of identity between this defendant and any of its predecessors to justify such an award. FIFTY-FIFTH AFFIRMATIVE DEFENSE To the extent the law of any other jurisdiction is applicable to this action, any demand for punitive damages is barred by the applicable proscriptions of the constitution of such jurisdiction. FIFTY-SIXTH AFFIRMATIVE DEFENSE CONOPCO denies that Plaintiffs had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce by CONOPCO, and more particularly denies upon information and belief that CONOPCO mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold 17 6374711 v1 17 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Amended Complaint herein. FIFTY-SEVENTH AFFIRMATIVE DEFENSE CONOPCO denies specifically that, during the periods of exposure alleged in the Amended Complaint by the Plaintiffs, it mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which Plaintiffs were caused to come into contact and which Plaintiffs were caused to breathe, inhale and digest and which thereby caused the Plaintiffs’ injuries and resulting in damages alleged in the Amended Complaint herein. FIFTY-EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in the Amended Complaint herein. FIFTY-NINTH AFFIRMATIVE DEFENSE CONOPCO denies that the asbestos products alleged in Plaintiffs’ Amended Complaint are products within the meaning and scope of the Restatement of Torts § 402A, and as such the Amended Complaint fails to state a cause of action in strict liability. SIXTIETH AFFIRMATIVE DEFENSE Defendant has been denied due process in being compelled to proceed to trial on an accelerated basis without opportunity to engage in meaningful discovery and/or to develop its defenses to liability. 18 6374711 v1 18 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 SIXTY-FIRST AFFIRMATIVE DEFENSE Insofar as Plaintiffs’ claims against CONOPCO stem from the alleged misconduct, negligence or other wrongful act or tort of CONOPCO, or any purported corporate predecessor, affiliate or entity related to CONOPCO, Plaintiffs’ claims are barred because CONOPCO was not responsible for any such acts and CONOPCO has no successor liability with regard to any such entity/entities. SIXTY-SECOND AFFIRMATIVE DEFENSE 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 herein. In addition, CONOPCO will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional affirmative defenses. SIXTY-THIRD AFFIRMATIVE DEFENSE CONOPCO may have one or more defenses founded upon documentary evidence. SIXTY-FOURTH AFFIRMATIVE DEFENSE The cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy, or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds. SIXTY-FIFTH AFFIRMATIVE DEFENSE The Court may not have jurisdiction in the action, to the extent that service was made under Section 314 or Section 315 of the CPLR. 19 6374711 v1 19 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 SIXTY-SIXTH AFFIRMATIVE DEFENSE This Court is considered a forum non conveniens for CONOPCO with respect to each and every Count contained in Plaintiffs’ Amended Complaint. SIXTY-SEVENTH AFFIRMATIVE DEFENSE CONOPCO alleges that any sales of asbestos-containing products 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. SIXTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for premises liability is barred because CONOPCO did not exercise control or supervise Plaintiffs’ work at any facility. SIXTY-NINTH AFFIRMATIVE DEFENSE To the extent Plaintiffs assert a claim under Sections 240 and/or 241 of the Labor Law, Plaintiffs’ claims under Sections 240 and 241 of the Labor Law should be dismissed because CONOPCO was not an owner, contractor, or agent of an owner or contractor to which Sections 240 and 241 apply. SEVENTIETH AFFIRMATIVE DEFENSE This action is barred under the government contractor’s defense theory. SEVENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred inasmuch as they are preempted by one or more statutes, rules, standards, and/or regulations of the United States Government including, but not limited to, the Hazards Communication Standard, 29 C.F.R. §1910.1200. 20 6374711 v1 20 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2023 12:05 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2023 SEVENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claim for collective liability is barred because all or a substantial share of the market of all potential tortfeasors are not before the Court. SEVENTY-THIRD AFFIRMATIVE DEFENSE Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty-Eight Insulation, Owens-Coming and/or Standard Insulations, W.R. Grace and all other entities in Bankruptcy relating thereto, would be in violation of CONOPCO’s constitutional rights. SEVENTY-FOURTH AFFIRMATIVE DEFENSE If Plaintiffs are barred from recovery, the action of Plaintiff’s spouse is also barred because it is a derivative action. SEVENTY-FIFTH AFFIRMATIVE DEFENSE CONOPCO had no duty to warn Plaintiffs because Plaintiffs were advised or should have been advised of any alleged hazards associated with the use of the products at issue by learned intermediaries for whom CONOPCO was not responsible and over whom CONOPCO exercised no control or direction and, therefore, CONOPCO is not liable to Plaintiffs under a failure to warn theory. SEVENTY-SIXTH AFFIRMATIVE DEFENSE To the extent Plaintiffs assert a loss of consortium claim, such claim is barred as a matter of law because Plaintiffs’ alleged exposure to asbestos predates the date of Plaintiffs’ marriage.