On April 06, 2022 a
Complaint,Petition
was filed
involving a dispute between
Bradford Brett,
Linda Johnson-Brett,
and
A.O. Smith Corporation.,,
Avon Products, Inc.,,
Bird Incorporated,,
Brenntag North America, Inc., Individually And As Successor In Interest To Mineral Pigment Solutions, Inc., As Successor In Interest To Whittaker, Clark & Daniels, Inc.,,
Bristol-Myers Squibb Company,
Burnham Holdings Llc,
Burnham, Llc, Individually And As Successor To Burnham Corporation,,
Carrier Corporation,,
Chanel, Inc.,,
Clinique Laboratories, Llc,,
Colgate Palmolive Company,
Compudyne Corporation, Individually And As Successor To York-Shipley,
Conopco, Inc., Individually And As Successor In Interest To Cheseborough-Ponds, Inc.,,
Coty, Inc.,,
Crane Co.,,
Crown Boiler Co.,,
Dap, Inc.,,
Ecr International, Inc., Individually And As Successor In Interest To Dunkirk, Dunkirk Boilers And Utica Boilers,,
Elizabeth Arden, Inc., Individually And As Successor In Interest To Evyan Perfumes, Inc.,,
Estee Lauder, Inc.,,
Estee Lauder International, Inc.,,
Fort Kent Holdings, Inc., F K A Dunham-Bush, Inc.,,
Friend Lumber Company Of Lowell,,
General Electric Company,,
Goulds Pumps, Inc.,,
Grinnell Llc,,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,,
Itt Corporation, Individually, And As Successor In Interest To Bell & Gossett And Hoffman Specialty,,
Kaiser Gypsum Company, Inc.,,
Keeler-Dorr-Oliver Boiler Company,,
Macys, Inc.,,
Mineral And Pigment Solutions, Inc., F K A Whittaker, Clark & Daniels, Inc.,,
Minnesota Mining & Manufacturing Company, A K A 3M Company,,
New Yorker Boiler Co., Inc.,,
Paramount Global F K A Viacomcbs, Inc. F K A Cbs Corporation, A Delaware Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, A Pennsylvania Corporation, F K A Westinghouse Electric Corporation,,
Parfums De Couer Ltd,
Pecora Corp.,,
Pfizer, Inc., Individually And As Successor To Coty Inc.,,
Revlon, Inc., Individually And As Successor In Interest To Jean Nate, Evyan Perfumes, Inc. And Enjoli, Inc.,,
Rheem Manufacturing Co., Rudd Water Heater Division,,
R.W. Beckett Corp.,,
Schneider Electric Usa, Inc., Formerly Known As Square D Company,
Slant Fin Corporation,,
Sos Products Co. Inc.,,
Spirax Sarco, Inc., Individually And As Successor To Sarco Company,,
Union Carbide Corporation,,
Weil Mclain, A Division Of The Marley Wylain Company,,
Whittaker, Clark & Daniels, Inc.,,
for Torts - Asbestos
in the District Court of Monroe County.
Preview
FILED: MONROE COUNTY CLERK 04/12/2024 06:41 PM INDEX NO. E2022002698
NYSCEF DOC. NO. 853 RECEIVED NYSCEF: 04/12/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3823153
Book Page CIVIL
Return To: No. Pages: 48
CHRISTOPHER S. KOZAK
One Gateway Center, 4th Floor Instrument: EXHIBIT(S)
Newark, NJ 07102
Control #: 202404122247
Index #: E2022002698
Date: 04/12/2024
JOHNSON-BRETT, LINDA Time: 6:44:23 PM
BRETT, BRADFORD
A.O. SMITH CORPORATION.,
AVON PRODUCTS, INC.,
BIRD INCORPORATED,
BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS,
INC., as successor in interest to WHITTAKER, CLARK &
DANIELS, INC.,
BURNHAM, LLC, individually and as successor to BURNHAM
CORPORATION,
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
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LINDA JOHNSON-BRETT and BRADFORD BRETT,
Index No.: E2022002698
Plaintiffs,
Date Filed:
-against- December 27, 2023
THIRD AMENDED
A.O. SMITH CORPORATION., VERIFIED COMPLAINT
AVON PRODUCTS, INC.,
BIRD INCORPORATED,
BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS,
INC., as successor in interest to WHITTAKER, CLARK &
DANIELS, INC.,
BRISTOL-MYERS SQUIBB COMPANY,
BURNHAM, LLC,
individually and as successor to
BURNHAM CORPORATION,
CARRIER CORPORATION,
CHANEL, INC.,
CLINIQUE LABORATORIES, LLC,
COLGATE PALMOLIVE COMPANY (for Mennen),
COMPUDYNE CORPORATION, Individually and as
Successor to York-Shipley
CONOPCO, INC., Individually and as Successor in Interest to
Cheseborough-Ponds, Inc.,
COTY, INC.,
CRANE CO.,
CROWN BOILER CO.,
DAP, INC.,
ECR INTERNATIONAL, INC., Individually and as Successor in
Interest to DUNKIRK, DUNKIRK BOILERS and UTICA
BOILERS,
ELIZABETH ARDEN, INC., Individually and as Successor in Interest
to EVYAN PERFUMES, INC.,
ESTEE LAUDER, INC.,
ESTEE LAUDER INTERNATIONAL, INC.,
FORT KENT HOLDINGS, INC.,
f/k/a DUNHAM-BUSH, INC.,
FRIEND LUMBER COMPANY OF LOWELL,
GENERAL ELECTRIC COMPANY,
GOULDS PUMPS, INC.,
GRINNELL LLC,
ITT CORPORATION, individually,
and as successor in interest to BELL & GOSSETT
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and HOFFMAN SPECIALTY,
HONEYWELL INTERNATIONAL, INC.,
f/k/a ALLIED SIGNAL, INC. / BENDIX,
KAISER GYPSUM COMPANY, INC.,
KEELER-DORR-OLIVER BOILER COMPANY,
MACYS, INC.,
MINERAL AND PIGMENT SOLUTIONS, INC., f/k/a WHITTAKER,
CLARK & DANIELS, INC.,
MINNESOTA MINING & MANUFACTURING COMPANY,
a/k/a 3M COMPANY,
NEW YORKER BOILER CO., INC.,
PARFUMS DE COUER, LTD.,
PARAMOUNT GLOBAL f/k/a/ VIACOMCBS, INC. f/k/a
CBS CORPORATION, A DELAWARE CORPORATION, f/k/a
VIACOM INC., successor by merger to CBS CORPORATION,
A PENNSYLVANIA CORPORATION, f/k/a WESTINGHOUSE
ELECTRIC CORPORATION,
PECORA CORP.,
PFIZER, INC., Individually and as Successor to COTY INC.,
R.W. BECKETT CORP.,
REVLON, INC., Individually and as Successor in Interest to JEAN
NATE, EVYAN PERFUMES, INC. and ENJOLI, INC.,
RHEEM MANUFACTURING CO., Rudd Water Heater Division,
SCHNEIDER ELECTRIC USA, INC.,
formerly known as SQUARE D COMPANY,
SLANT/FIN CORPORATION,
SOS PRODUCTS CO. INC.,
SPIRAX SARCO, INC.,
individually and as successor to SARCO COMPANY,
UNION CARBIDE CORPORATION,
WEIL MCLAIN, a Division of the Marley Wylain Company,
WHITTAKER, CLARK & DANIELS, INC.,
BURNHAM HOLDINGS LLC,
Defendants.
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To the above-named Defendant(s):
Plaintiffs, LINDA JOHNSON-BRETT and BRADFORD BRETT, by their attorneys,
MEIROWITZ & WASSERBERG, LLP, for their third amended verified complaint respectfully
alleges:
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1. LINDA JOHNSON-BRETT has been diagnosed with Mesothelioma.
2. Defendant A.O. SMITH CORPORATION., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
3. Defendant AVON PRODUCTS, INC., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
4. Defendant BIRD INCORPORATED., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
5. Defendant BRENNTAG NORTH AMERICA, INC., individually and as
successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to
WHITTAKER, CLARK & DANIELS, INC.., was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
6. Defendant BRISTOL-MYERS SQUIBB COMPANY, was and still is a
duly organized domestic corporation doing business in the State of New York and should have
expected its acts to have consequences within the State of New York.
7. Defendant BURNHAM LLC, individually and as successor to BURNHAM
CORPORATION, was and still is a duly organized domestic corporation doing business in the
State of New York and should have expected its acts to have consequences within the State of New
York.
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8. Defendant CARRIER CORPORATION, was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
9. Defendant CHANEL, INC., was and still is a corporation doing business
and/or transacting business in the State of New York and should have expected its acts to have
consequences within the State of New York.
10. Defendant CLINIQUE LABORATORIES, LLC, was and still is a
corporation doing business and/or transacting business in the State of New York and should have
expected its acts to have consequences within the State of New York.
11. Defendant COLGATE PALMOLIVE COMPANY (for Mennen), was and
still is a corporation doing business and/or transacting business in the State of New York and
should have expected its acts to have consequences within the State of New York.
12. Defendant COMPUDYNE CORPORATION, Individually and as
Successor to YORK-SHIPLEY., was and still is a corporation doing business and/or transacting
business in the State of New York and should have expected its acts to have consequences within
the State of New York.
13. Defendant CONOPCO, INC., Individually and as Successor in Interest to
Cheseborough-Ponds, Inc., was and still is a corporation doing business and/or transacting
business in the State of New York and should have expected its acts to have consequences within
the State of New York.
14. Defendant COTY, INC., was and still is a corporation doing business and/or
transacting business in the State of New York and should have expected its acts to have
consequences within the State of New York.
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15. Defendant CRANE CO., was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
16. Defendant CROWN BOILER CO., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
17. Defendant DAP INC., was and still is a duly organized domestic corporation
doing business in the State of New York and should have expected its acts to have consequences
within the State of New York.
18. Defendant ECR INTERNATIONAL, INC., Individually and as Successor
in Interest to DUNKIRK, DUNKIRK BOILERS and UTICA BOILERS., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
19. Defendant ELIZABETH ARDEN, INC., Individually and as Successor in
Interest to EVYAN PERFUMES, INC., was and still is a corporation doing business and/or
transacting business in the State of New York and should have expected its acts to have
consequences within the State of New York.
20. Defendant ESTEE LAUDER, INC., was and still is a corporation doing
business and/or transacting business in the State of New York and should have expected its acts to
have consequences within the State of New York.
21. Defendant ESTEE LAUDER INTERNATIONAL, INC., was and still is a
corporation doing business and/or transacting business in the State of New York and should have
expected its acts to have consequences within the State of New York.
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22. Defendant FORT KENT HOLDINGS, INC., f/k/a DUNHAM BUSH, INC.,
was and still is a corporation doing business and/or transacting business in the State of New York
and should have expected its acts to have consequences within the State of New York.
23. Defendant FRIEND LUMBER COMPANY OF LOWELL, was and still is
a duly organized domestic corporation doing business in the State of New York and should have
expected its acts to have consequences within the State of New York.
24. Defendant GENERAL ELECTRIC COMPANY, was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
25. Defendant GOULDS PUMPS, INC., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
26. Defendant GRINNELL LLC., was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
27. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED
SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation doing business
in the State of New York and should have expected its acts to have consequences within the State
of New York.
28. Defendant ITT CORPORATION, Individually and as Successor in Interest
to BELL & GOSSETT and HOFFMAN SPECIALTY was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
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29. Defendant KAISER GYPSUM COMPANY INC., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
30. Defendant KEELER-DORR-OLIVER BOILER COMPANY., was and still
is a duly organized domestic corporation doing business in the State of New York and should have
expected its acts to have consequences within the State of New York.
31. Defendant MACYS, INC., was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
32. Defendant MINERAL AND PIGMENT SOLUTIONS, INC., f/k/a
WHITTAKER CLARK & DANIELS INC., was and still is a duly organized domestic corporation
doing business in the State of New York and should have expected its acts to have consequences
within the State of New York.
33. Defendant MINNESOTA MINING & MANUFACTURING COMPANY,
a/k/a 3M COMPANY, was and still is a duly organized domestic corporation doing business in
the State of New York and should have expected its acts to have consequences within the State of
New York.
34. Defendant NEW YORKER BOILER CO. INC., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
35. Defendant PARFUMS DE COUER, LTD., was and still is a duly
organized domestic corporation doing business in the State of New York and should have
expected its acts to have consequences within the State of New York.
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36. Defendant PARAMOUNT GOLBAL f/k/a VIACOMCBS, INC., f/k/a CBS
CORPORATION, A DELAWARE CORPORATION, f/k/a VIACOM INC., as successor by
merger to CBS CORPORATION A PENNSYLVANIA CORPORATION, f/k/a
WESTINGHOUSE ELECTRIC CORPORATION, was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
37. Defendant PECORA CORP., was and still is a duly organized domestic
corporation doing business in the State of New York and should have expected its acts to have
consequences within the State of New York.
38. Defendant PFIZER, INC., Individually and as Successor to COTY, INC.,
was and still is a corporation doing business and/or transacting business in the State of New York
and should have expected its acts to have consequences within the State of New York.
39. Defendant R.W. BECKETT CORP., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
40. Defendant REVLON, INC., Individually and as Successor in Interest to
JEAN NATE, EVYAN PERFUMES, INC. and ENJOLI, INC., was and still is a corporation doing
business and/or transacting business in the State of New York and should have expected its acts to
have consequences within the State of New York.
41. Defendant RHEEM MANUFACUTRING CO., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
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42. Defendant SCHNEIDER ELECTRIC USA, INC., formerly known as
SQUARE D COMPANY., was and still is a duly organized domestic corporation doing business
in the State of New York and should have expected its acts to have consequences within the State
of New York.
43. Defendant SLANT/FIN CORPORATION, was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
44. Defendant SOS PRODUCTS CO., INC., was and still is a duly organized
domestic corporation doing business in the State of New York and should have expected its acts
to have consequences within the State of New York.
45. Defendant SPIRAX SARCO, INC., individually and as successor to
SARCO COMPANY, was and still is a duly organized domestic corporation doing business in the
State of New York and should have expected its acts to have consequences within the State of New
York.
46. Defendant UNION CARBIDE CORPORATION., was and still is a duly
organized domestic corporation doing business in the State of New York and should have expected
its acts to have consequences within the State of New York.
47. Defendant WEIL MCLAIN, a division of the Marley Wylain Company, was
and still is a duly organized domestic corporation doing business in the State of New York and
should have expected its acts to have consequences within the State of New York.
48. Defendant WHITTAKER, CLARK & DANIELS, INC., was and still is a
duly organized domestic corporation doing business in the State of New York and should have
expected its acts to have consequences within the State of New York.
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49. Defendant BURNHAM HOLDINGS LLC, was and still is a
duly organized domestic corporation doing business in the State of New York and should
have expected its acts to have consequences within the State of New York.
THE PARTIES
50. Plaintiff’s spouse (“Spouse”), a party herein, was and still is Plaintiff’s
lawful spouse.
51. Each Defendant was and still is a duly organized foreign or domestic
corporation doing business and/or transacting business in New York and/or should have expected
its acts to have consequences within New York.
52. Defendants have transacted business in New York; have contracted within
and/or without New York to supply goods or services in New York; have committed one or more
tortious acts within New York; and/or have otherwise performed acts within and/or without New
York causing injuries and losses within New York, which acts subject each Defendant to the
jurisdiction of New York courts.
53. Defendants have regularly done and/or solicited business in New York;
engaged in a persistent course of conduct in New York; and/or derived substantial revenue from
goods used or consumed or services rendered in New York.
54. Defendants expected or should reasonably have expected their acts to have
consequences in New York and derive substantial revenue from interstate and/or international
commerce.
55. Defendants own, use and/or possess real property situated within New
York.
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56. The actions and conduct of Defendants as more fully described below were
carried out through their respective offices by authorized agents, servants and employees who were
acting in the course and scope of their employment and authority and in furtherance of Defendants’
business and profit.
57. Upon information and belief, each Defendant has engaged in mining,
producing, processing, designing, manufacturing, marketing, supplying, delivering, distributing,
installing, using, purchasing, importing, converting, compounding, removing, selling and/or
otherwise placing in to the stream of commerce: (i) raw asbestos1 fibers of various kinds and
grades; (ii) asbestos-containing products; and/or (iii) machinery and equipment which specified,
was commonly used with, required or inevitably necessitated the use of asbestos and/or asbestos-
containing products or components in conjunction therewith (hereinafter collectively referred to
as “Asbestos Products”).
58. Plaintiff worked with, came in contact with and/or was otherwise exposed
to Defendants’ Asbestos Products at various locations and/or times and was exposed asbestos dust
and fibers through the normal and anticipated use of said Asbestos Products.
59. During the course of his life, Plaintiff was exposed—directly and/or
indirectly—on numerous occasions to Asbestos Products which were mined, produced, processed,
designed, manufactured, marketed, supplied, delivered, distributed, installed, used, purchased,
imported, converted, compounded, removed, sold or otherwise placed in the stream of commerce
by Defendants.
1
As used throughout this Complaint, the term “asbestos” shall be interpreted broadly and include, among other things,
both regulated and non-regulated forms of the mineral and both asbestiform and non-asbestiform materials and fibers.
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60. Plaintiff was unavoidably exposed to, inhaled and ingested asbestos fibers
and dust contained within and emanating from the Defendants’ Asbestos Products and/or as a
result of Defendants’ actions, omissions and/or failures to act.
61. At all relevant times, Defendants knew or should have known of the health
hazards associated with exposure to asbestos.
62. As a direct and proximate result of his exposure to—and consequential
inhalation and ingestion of—asbestos fibers and dust, as contained within and emanating from the
Defendants’ Asbestos Products or otherwise as a result of Defendants’ actions or failures to act,
Plaintiff developed a progressive, debilitating asbestos-related illness/disease and consequential
damages, including, without limitation, pain and suffering, mental anguish, medical expenses and
lost earnings and income.
63. Plaintiff alleges that his exposure to Defendants’ Asbestos Products caused
or substantially contributed to his asbestos-related injuries such that the Defendants are jointly and
severally liable to him for same.
64. If it is deemed that Article 16 of the C.P.L.R. applies to this action, Plaintiff
asserts that this action falls within one or more of the exceptions set forth in C.P.L.R. § 1602,
including, but not limited to, the exception for public employees (C.P.L.R. § 1602(1)(b)); the
exception based upon defendants’ non-delegable duty to warn of the health hazards of asbestos
(C.P.L.R. § 1602(2)(iv)); the exception for cases in which a claimant suffers a "grave injury”
(C.P.L.R. § 1602(4)); the exception for actions requiring proof of intent (C.P.L.R. § 1602(5)); the
exception for cases in which a person is held liable for causing a claimant’s injury by having acted
with reckless disregard for the safety of others (C.P.L.R. § 1602(7)); the exception for cases in
which a defendant is held liable by reason of the applicability of Article 10 of the Labor Law
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(C.P.L.R. § 1602(8)); the exception for cases involving any person held liable for causing a
claimant’s injury by having unlawfully released into the environment a substance hazardous to
public health, safety or the environment (C.P.L.R. § 1602(9)); the exception for any parties found
to have acted knowingly or intentionally and in concert to cause the acts or failure upon which
liability is based (C.P.L.R. § 1602(11)); and the exception for persons held liable in a product
liability action in which the manufacturer of the product is not a party to the action and jurisdiction
over the manufacturer could not with due diligence be obtained (C.P.L.R. § 1601(10)).
65. The amount of damages sought exceeds the jurisdiction of all lower courts
that might otherwise have jurisdiction.
FIRST CAUSE OF ACTION FOR NEGLIGENCE, EXCEPT PARAGRAPHS 82(d) 82(e),
82(k) 82(l) 82(o) ARE NOT CLAIMED OR ALLEGED TO HAVE OCCURRED AT,
UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED,
CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE
UNITED STATES GOVERNMENT
66. Plaintiff repeats, reiterates and incorporates herein the prior and subsequent
allegations of this Complaint with the same force and effect as if hereinafter set forth at length.
67. Plaintiff frequently and regularly worked with or was otherwise exposed to
the Asbestos Products mined, produced, processed, designed, manufactured, marketed, supplied,
delivered, distributed, installed, used, purchased, imported, converted, compounded, removed,
sold, or otherwise placed in the stream of commerce by Defendants. Said exposure directly and
proximately caused him to develop an asbestos-related disease.
68. At all times pertinent hereto, Defendants acted through their duly authorized
agents, servants and employees who were then and there acting in the course and scope of their
employment and in furtherance of Defendants’ business.
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69. Plaintiff was necessarily and unavoidably exposed to and did inhale and
ingest asbestos dust and/or fibers from Defendants’ Asbestos Products.
70. As a proximate result of the exposure to asbestos from Defendants’
Asbestos Products, Plaintiff developed an asbestos-related disease.
71. At all relevant times, Defendants knew or with reasonable diligence should
have known and/or ascertained that their Asbestos Products were inherently dangerous and
hazardous to the health and well-being of persons using, exposed to or otherwise coming in contact
with Defendants’ Asbestos Products.
72. At all relevant times, Defendants knew or with reasonable diligence should
have known and/or ascertained that the inherent dangers posed by their Asbestos Products were
beyond the expectations of the ordinary user or handler who would come into contact with said
Asbestos Products.
73. Defendants knew or with reasonable diligence should have known and/or
ascertained that the reasonable and anticipated use of, exposure to or contact with their Asbestos
Products would cause the release of asbestos fibers and dust, creating a danger and unreasonable
risk of injury and harm to those in the vicinity of such Asbestos Products.
74. Defendants knew, or with reasonable diligence should have known and/or
ascertained that Plaintiff would use or come into contact with Defendants’ Asbestos Products, and
in so doing, would become exposed to, inhale and ingest the asbestos fibers and dust as they were
discharged and released from said Asbestos Products in the course of ordinary and foreseeable
contact, application and use thereof.
75. Defendants knew or with reasonable diligence should have known and/or
ascertained that Plaintiff used, came into contact with and was exposed to asbestos dust and fibers
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emanating and released from Defendants’ Asbestos Products without any knowledge of the
dangers and potential risk of harm to which he was thereby being subjected.
76. Despite knowledge of the unsafe and dangerous nature and properties of
asbestos, Defendants willfully, recklessly and negligently:
(a) failed to warn the public at large, and specifically Plaintiff, of the dangers and
hazards associated with or caused by the use of, exposure to or contact with Defendants’ Asbestos
Products resulting from the ordinary, anticipated and foreseeable use thereof;
(b) failed to study, investigate and/or properly test their Asbestos Products for both
potential and actual hazards associated with the use of, exposure to and contact with said products
when said products were used in a reasonably foreseeable and anticipated manner;
(c) failed to communicate or convey their suspicions and knowledge with respect
to potential or actual dangers and health hazards associated with the use of, exposure to or contact
with their Asbestos Products resulting in inhalation and ingestion of asbestos fibers and dust by
the users and consumers of said Asbestos Products;
(d) failed to design or redesign their Asbestos Products to prevent, impede or
minimize the release of airborne inhalable and ingestible asbestos fibers and dust;
(e) failed to properly design and manufacture their Asbestos Products to insure
safe use and handling by users and consumers under conditions that were reasonably anticipated
and foreseeable;
(f) failed to advise the public at large, and specifically Plaintiff, of the necessity
for protective garments, safety equipment and appliances to protect the user/consumer from harm
caused by inhalation and ingestion of asbestos fibers and dust released by, and associated with the
ordinary and foreseeable use of and contact with Defendants’ Asbestos Products;
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(g) failed to institute, adopt or enforce appropriate safety protocols for handling
and use of their Asbestos Products and to communicate same to individuals, including Plaintiff,
working with, utilizing, handling or otherwise coming into contact with said products;
(h) failed to adequately package their respective Asbestos Products in a manner
which would ensure safe handling and use by those individuals, including Plaintiff, who
Defendants knew or should have reasonably anticipated would be exposed to asbestos fibers and
dust released by and associated with the ordinary and foreseeable use of Defendants’ Asbestos
Products;
(i) failed to remove their Asbestos Products from the stream of commerce, despite
knowledge of the unsafe and dangerous nature and condition of said Asbestos Products;
(j) continued to mine, produce, process, design, manufacture, market, supply,
deliver, distribute, install, use, purchase, import, convert, compound, remove and/or sell Asbestos
Products for general application and purposes without any alteration or change, despite the
potential and known health hazards and dangers posed to the foreseeable and anticipated users and
consumers of said Asbestos Products;
(k) failed to timely develop and utilize substitute materials for asbestos in their
Asbestos Products and/or develop non-hazardous substitutes that could have been used for the
same purposes as their Asbestos Products;
(l) failed to design or redesign their Asbestos Products to prevent, impede or
minimize the release of inhalable and/or ingestible asbestos fibers and dust;
(m) failed to recall and/or issue a post-sale warning for their Asbestos Products;
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(n) failed to provide warnings, advice, instructions or information to Plaintiff so
that he may have made an adequate and informed judgment as to the use of Defendants’ Asbestos
Products; and
(o) failed to develop, make available and/or provide non-hazardous materials
which could have been used for the same purpose as their Asbestos Products.
77. Defendants, individually and as a group, since the early 1900s possessed
medical and scientific data which clearly indicated that asbestos and, consequently, their Asbestos
Products were hazardous. However, in pursuit of pecuniary motives, Defendants, individually and
collectively, suppressed, ignored and/or failed to act upon said medical and scientific data and
conspired to deprive the
Preview
FILED: MONROE COUNTY CLERK 04/12/2024 06:41 PM INDEX NO. E2022002698 NYSCEF DOC. NO. 853 RECEIVED NYSCEF: 04/12/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3823153 Book Page CIVIL Return To: No. Pages: 48 CHRISTOPHER S. KOZAK One Gateway Center, 4th Floor Instrument: EXHIBIT(S) Newark, NJ 07102 Control #: 202404122247 Index #: E2022002698 Date: 04/12/2024 JOHNSON-BRETT, LINDA Time: 6:44:23 PM BRETT, BRADFORD A.O. SMITH CORPORATION., AVON PRODUCTS, INC., BIRD INCORPORATED, BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & DANIELS, INC., BURNHAM, LLC, individually and as successor to BURNHAM CORPORATION, Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202312280183 202404122247 Index # INDEX : E2022002698 NO. E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE -----------------------------------------------------------------------------X LINDA JOHNSON-BRETT and BRADFORD BRETT, Index No.: E2022002698 Plaintiffs, Date Filed: -against- December 27, 2023 THIRD AMENDED A.O. SMITH CORPORATION., VERIFIED COMPLAINT AVON PRODUCTS, INC., BIRD INCORPORATED, BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & DANIELS, INC., BRISTOL-MYERS SQUIBB COMPANY, BURNHAM, LLC, individually and as successor to BURNHAM CORPORATION, CARRIER CORPORATION, CHANEL, INC., CLINIQUE LABORATORIES, LLC, COLGATE PALMOLIVE COMPANY (for Mennen), COMPUDYNE CORPORATION, Individually and as Successor to York-Shipley CONOPCO, INC., Individually and as Successor in Interest to Cheseborough-Ponds, Inc., COTY, INC., CRANE CO., CROWN BOILER CO., DAP, INC., ECR INTERNATIONAL, INC., Individually and as Successor in Interest to DUNKIRK, DUNKIRK BOILERS and UTICA BOILERS, ELIZABETH ARDEN, INC., Individually and as Successor in Interest to EVYAN PERFUMES, INC., ESTEE LAUDER, INC., ESTEE LAUDER INTERNATIONAL, INC., FORT KENT HOLDINGS, INC., f/k/a DUNHAM-BUSH, INC., FRIEND LUMBER COMPANY OF LOWELL, GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INC., GRINNELL LLC, ITT CORPORATION, individually, and as successor in interest to BELL & GOSSETT 2 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 and HOFFMAN SPECIALTY, HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, KAISER GYPSUM COMPANY, INC., KEELER-DORR-OLIVER BOILER COMPANY, MACYS, INC., MINERAL AND PIGMENT SOLUTIONS, INC., f/k/a WHITTAKER, CLARK & DANIELS, INC., MINNESOTA MINING & MANUFACTURING COMPANY, a/k/a 3M COMPANY, NEW YORKER BOILER CO., INC., PARFUMS DE COUER, LTD., PARAMOUNT GLOBAL f/k/a/ VIACOMCBS, INC. f/k/a CBS CORPORATION, A DELAWARE CORPORATION, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, A PENNSYLVANIA CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION, PECORA CORP., PFIZER, INC., Individually and as Successor to COTY INC., R.W. BECKETT CORP., REVLON, INC., Individually and as Successor in Interest to JEAN NATE, EVYAN PERFUMES, INC. and ENJOLI, INC., RHEEM MANUFACTURING CO., Rudd Water Heater Division, SCHNEIDER ELECTRIC USA, INC., formerly known as SQUARE D COMPANY, SLANT/FIN CORPORATION, SOS PRODUCTS CO. INC., SPIRAX SARCO, INC., individually and as successor to SARCO COMPANY, UNION CARBIDE CORPORATION, WEIL MCLAIN, a Division of the Marley Wylain Company, WHITTAKER, CLARK & DANIELS, INC., BURNHAM HOLDINGS LLC, Defendants. -----------------------------------------------------------------------------X To the above-named Defendant(s): Plaintiffs, LINDA JOHNSON-BRETT and BRADFORD BRETT, by their attorneys, MEIROWITZ & WASSERBERG, LLP, for their third amended verified complaint respectfully alleges: 3 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 1. LINDA JOHNSON-BRETT has been diagnosed with Mesothelioma. 2. Defendant A.O. SMITH CORPORATION., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 3. Defendant AVON PRODUCTS, INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 4. Defendant BIRD INCORPORATED., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 5. Defendant BRENNTAG NORTH AMERICA, INC., individually and as successor in interest to MINERAL PIGMENT SOLUTIONS, INC., as successor in interest to WHITTAKER, CLARK & DANIELS, INC.., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 6. Defendant BRISTOL-MYERS SQUIBB COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 7. Defendant BURNHAM LLC, individually and as successor to BURNHAM CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 4 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 8. Defendant CARRIER CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 9. Defendant CHANEL, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 10. Defendant CLINIQUE LABORATORIES, LLC, was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 11. Defendant COLGATE PALMOLIVE COMPANY (for Mennen), was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 12. Defendant COMPUDYNE CORPORATION, Individually and as Successor to YORK-SHIPLEY., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 13. Defendant CONOPCO, INC., Individually and as Successor in Interest to Cheseborough-Ponds, Inc., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 14. Defendant COTY, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 5 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 15. Defendant CRANE CO., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 16. Defendant CROWN BOILER CO., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 17. Defendant DAP INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 18. Defendant ECR INTERNATIONAL, INC., Individually and as Successor in Interest to DUNKIRK, DUNKIRK BOILERS and UTICA BOILERS., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 19. Defendant ELIZABETH ARDEN, INC., Individually and as Successor in Interest to EVYAN PERFUMES, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 20. Defendant ESTEE LAUDER, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 21. Defendant ESTEE LAUDER INTERNATIONAL, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 6 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 22. Defendant FORT KENT HOLDINGS, INC., f/k/a DUNHAM BUSH, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 23. Defendant FRIEND LUMBER COMPANY OF LOWELL, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 24. Defendant GENERAL ELECTRIC COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 25. Defendant GOULDS PUMPS, INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 26. Defendant GRINNELL LLC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 27. Defendant HONEYWELL INTERNATIONAL, INC., f/k/a ALLIED SIGNAL, INC. / BENDIX, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 28. Defendant ITT CORPORATION, Individually and as Successor in Interest to BELL & GOSSETT and HOFFMAN SPECIALTY was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 7 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 29. Defendant KAISER GYPSUM COMPANY INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 30. Defendant KEELER-DORR-OLIVER BOILER COMPANY., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 31. Defendant MACYS, INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 32. Defendant MINERAL AND PIGMENT SOLUTIONS, INC., f/k/a WHITTAKER CLARK & DANIELS INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 33. Defendant MINNESOTA MINING & MANUFACTURING COMPANY, a/k/a 3M COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 34. Defendant NEW YORKER BOILER CO. INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 35. Defendant PARFUMS DE COUER, LTD., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 8 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 36. Defendant PARAMOUNT GOLBAL f/k/a VIACOMCBS, INC., f/k/a CBS CORPORATION, A DELAWARE CORPORATION, f/k/a VIACOM INC., as successor by merger to CBS CORPORATION A PENNSYLVANIA CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 37. Defendant PECORA CORP., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 38. Defendant PFIZER, INC., Individually and as Successor to COTY, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 39. Defendant R.W. BECKETT CORP., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 40. Defendant REVLON, INC., Individually and as Successor in Interest to JEAN NATE, EVYAN PERFUMES, INC. and ENJOLI, INC., was and still is a corporation doing business and/or transacting business in the State of New York and should have expected its acts to have consequences within the State of New York. 41. Defendant RHEEM MANUFACUTRING CO., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 9 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 42. Defendant SCHNEIDER ELECTRIC USA, INC., formerly known as SQUARE D COMPANY., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 43. Defendant SLANT/FIN CORPORATION, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 44. Defendant SOS PRODUCTS CO., INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 45. Defendant SPIRAX SARCO, INC., individually and as successor to SARCO COMPANY, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 46. Defendant UNION CARBIDE CORPORATION., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 47. Defendant WEIL MCLAIN, a division of the Marley Wylain Company, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 48. Defendant WHITTAKER, CLARK & DANIELS, INC., was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. 10 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 49. Defendant BURNHAM HOLDINGS LLC, was and still is a duly organized domestic corporation doing business in the State of New York and should have expected its acts to have consequences within the State of New York. THE PARTIES 50. Plaintiff’s spouse (“Spouse”), a party herein, was and still is Plaintiff’s lawful spouse. 51. Each Defendant was and still is a duly organized foreign or domestic corporation doing business and/or transacting business in New York and/or should have expected its acts to have consequences within New York. 52. Defendants have transacted business in New York; have contracted within and/or without New York to supply goods or services in New York; have committed one or more tortious acts within New York; and/or have otherwise performed acts within and/or without New York causing injuries and losses within New York, which acts subject each Defendant to the jurisdiction of New York courts. 53. Defendants have regularly done and/or solicited business in New York; engaged in a persistent course of conduct in New York; and/or derived substantial revenue from goods used or consumed or services rendered in New York. 54. Defendants expected or should reasonably have expected their acts to have consequences in New York and derive substantial revenue from interstate and/or international commerce. 55. Defendants own, use and/or possess real property situated within New York. 11 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 56. The actions and conduct of Defendants as more fully described below were carried out through their respective offices by authorized agents, servants and employees who were acting in the course and scope of their employment and authority and in furtherance of Defendants’ business and profit. 57. Upon information and belief, each Defendant has engaged in mining, producing, processing, designing, manufacturing, marketing, supplying, delivering, distributing, installing, using, purchasing, importing, converting, compounding, removing, selling and/or otherwise placing in to the stream of commerce: (i) raw asbestos1 fibers of various kinds and grades; (ii) asbestos-containing products; and/or (iii) machinery and equipment which specified, was commonly used with, required or inevitably necessitated the use of asbestos and/or asbestos- containing products or components in conjunction therewith (hereinafter collectively referred to as “Asbestos Products”). 58. Plaintiff worked with, came in contact with and/or was otherwise exposed to Defendants’ Asbestos Products at various locations and/or times and was exposed asbestos dust and fibers through the normal and anticipated use of said Asbestos Products. 59. During the course of his life, Plaintiff was exposed—directly and/or indirectly—on numerous occasions to Asbestos Products which were mined, produced, processed, designed, manufactured, marketed, supplied, delivered, distributed, installed, used, purchased, imported, converted, compounded, removed, sold or otherwise placed in the stream of commerce by Defendants. 1 As used throughout this Complaint, the term “asbestos” shall be interpreted broadly and include, among other things, both regulated and non-regulated forms of the mineral and both asbestiform and non-asbestiform materials and fibers. 12 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 60. Plaintiff was unavoidably exposed to, inhaled and ingested asbestos fibers and dust contained within and emanating from the Defendants’ Asbestos Products and/or as a result of Defendants’ actions, omissions and/or failures to act. 61. At all relevant times, Defendants knew or should have known of the health hazards associated with exposure to asbestos. 62. As a direct and proximate result of his exposure to—and consequential inhalation and ingestion of—asbestos fibers and dust, as contained within and emanating from the Defendants’ Asbestos Products or otherwise as a result of Defendants’ actions or failures to act, Plaintiff developed a progressive, debilitating asbestos-related illness/disease and consequential damages, including, without limitation, pain and suffering, mental anguish, medical expenses and lost earnings and income. 63. Plaintiff alleges that his exposure to Defendants’ Asbestos Products caused or substantially contributed to his asbestos-related injuries such that the Defendants are jointly and severally liable to him for same. 64. If it is deemed that Article 16 of the C.P.L.R. applies to this action, Plaintiff asserts that this action falls within one or more of the exceptions set forth in C.P.L.R. § 1602, including, but not limited to, the exception for public employees (C.P.L.R. § 1602(1)(b)); the exception based upon defendants’ non-delegable duty to warn of the health hazards of asbestos (C.P.L.R. § 1602(2)(iv)); the exception for cases in which a claimant suffers a "grave injury” (C.P.L.R. § 1602(4)); the exception for actions requiring proof of intent (C.P.L.R. § 1602(5)); the exception for cases in which a person is held liable for causing a claimant’s injury by having acted with reckless disregard for the safety of others (C.P.L.R. § 1602(7)); the exception for cases in which a defendant is held liable by reason of the applicability of Article 10 of the Labor Law 13 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 (C.P.L.R. § 1602(8)); the exception for cases involving any person held liable for causing a claimant’s injury by having unlawfully released into the environment a substance hazardous to public health, safety or the environment (C.P.L.R. § 1602(9)); the exception for any parties found to have acted knowingly or intentionally and in concert to cause the acts or failure upon which liability is based (C.P.L.R. § 1602(11)); and the exception for persons held liable in a product liability action in which the manufacturer of the product is not a party to the action and jurisdiction over the manufacturer could not with due diligence be obtained (C.P.L.R. § 1601(10)). 65. The amount of damages sought exceeds the jurisdiction of all lower courts that might otherwise have jurisdiction. FIRST CAUSE OF ACTION FOR NEGLIGENCE, EXCEPT PARAGRAPHS 82(d) 82(e), 82(k) 82(l) 82(o) ARE NOT CLAIMED OR ALLEGED TO HAVE OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 66. Plaintiff repeats, reiterates and incorporates herein the prior and subsequent allegations of this Complaint with the same force and effect as if hereinafter set forth at length. 67. Plaintiff frequently and regularly worked with or was otherwise exposed to the Asbestos Products mined, produced, processed, designed, manufactured, marketed, supplied, delivered, distributed, installed, used, purchased, imported, converted, compounded, removed, sold, or otherwise placed in the stream of commerce by Defendants. Said exposure directly and proximately caused him to develop an asbestos-related disease. 68. At all times pertinent hereto, Defendants acted through their duly authorized agents, servants and employees who were then and there acting in the course and scope of their employment and in furtherance of Defendants’ business. 14 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 69. Plaintiff was necessarily and unavoidably exposed to and did inhale and ingest asbestos dust and/or fibers from Defendants’ Asbestos Products. 70. As a proximate result of the exposure to asbestos from Defendants’ Asbestos Products, Plaintiff developed an asbestos-related disease. 71. At all relevant times, Defendants knew or with reasonable diligence should have known and/or ascertained that their Asbestos Products were inherently dangerous and hazardous to the health and well-being of persons using, exposed to or otherwise coming in contact with Defendants’ Asbestos Products. 72. At all relevant times, Defendants knew or with reasonable diligence should have known and/or ascertained that the inherent dangers posed by their Asbestos Products were beyond the expectations of the ordinary user or handler who would come into contact with said Asbestos Products. 73. Defendants knew or with reasonable diligence should have known and/or ascertained that the reasonable and anticipated use of, exposure to or contact with their Asbestos Products would cause the release of asbestos fibers and dust, creating a danger and unreasonable risk of injury and harm to those in the vicinity of such Asbestos Products. 74. Defendants knew, or with reasonable diligence should have known and/or ascertained that Plaintiff would use or come into contact with Defendants’ Asbestos Products, and in so doing, would become exposed to, inhale and ingest the asbestos fibers and dust as they were discharged and released from said Asbestos Products in the course of ordinary and foreseeable contact, application and use thereof. 75. Defendants knew or with reasonable diligence should have known and/or ascertained that Plaintiff used, came into contact with and was exposed to asbestos dust and fibers 15 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 emanating and released from Defendants’ Asbestos Products without any knowledge of the dangers and potential risk of harm to which he was thereby being subjected. 76. Despite knowledge of the unsafe and dangerous nature and properties of asbestos, Defendants willfully, recklessly and negligently: (a) failed to warn the public at large, and specifically Plaintiff, of the dangers and hazards associated with or caused by the use of, exposure to or contact with Defendants’ Asbestos Products resulting from the ordinary, anticipated and foreseeable use thereof; (b) failed to study, investigate and/or properly test their Asbestos Products for both potential and actual hazards associated with the use of, exposure to and contact with said products when said products were used in a reasonably foreseeable and anticipated manner; (c) failed to communicate or convey their suspicions and knowledge with respect to potential or actual dangers and health hazards associated with the use of, exposure to or contact with their Asbestos Products resulting in inhalation and ingestion of asbestos fibers and dust by the users and consumers of said Asbestos Products; (d) failed to design or redesign their Asbestos Products to prevent, impede or minimize the release of airborne inhalable and ingestible asbestos fibers and dust; (e) failed to properly design and manufacture their Asbestos Products to insure safe use and handling by users and consumers under conditions that were reasonably anticipated and foreseeable; (f) failed to advise the public at large, and specifically Plaintiff, of the necessity for protective garments, safety equipment and appliances to protect the user/consumer from harm caused by inhalation and ingestion of asbestos fibers and dust released by, and associated with the ordinary and foreseeable use of and contact with Defendants’ Asbestos Products; 16 of 48 202312280183 202404122247 IndexNO. 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NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 (g) failed to institute, adopt or enforce appropriate safety protocols for handling and use of their Asbestos Products and to communicate same to individuals, including Plaintiff, working with, utilizing, handling or otherwise coming into contact with said products; (h) failed to adequately package their respective Asbestos Products in a manner which would ensure safe handling and use by those individuals, including Plaintiff, who Defendants knew or should have reasonably anticipated would be exposed to asbestos fibers and dust released by and associated with the ordinary and foreseeable use of Defendants’ Asbestos Products; (i) failed to remove their Asbestos Products from the stream of commerce, despite knowledge of the unsafe and dangerous nature and condition of said Asbestos Products; (j) continued to mine, produce, process, design, manufacture, market, supply, deliver, distribute, install, use, purchase, import, convert, compound, remove and/or sell Asbestos Products for general application and purposes without any alteration or change, despite the potential and known health hazards and dangers posed to the foreseeable and anticipated users and consumers of said Asbestos Products; (k) failed to timely develop and utilize substitute materials for asbestos in their Asbestos Products and/or develop non-hazardous substitutes that could have been used for the same purposes as their Asbestos Products; (l) failed to design or redesign their Asbestos Products to prevent, impede or minimize the release of inhalable and/or ingestible asbestos fibers and dust; (m) failed to recall and/or issue a post-sale warning for their Asbestos Products; 17 of 48 202312280183 202404122247 IndexNO. INDEX #: E2022002698 E2022002698 FILED: MONROE COUNTY CLERK 04/12/2024 12/27/2023 06:41 01:06 PM NYSCEF DOC. NO. 853 469 RECEIVED NYSCEF: 04/12/2024 12/28/2023 (n) failed to provide warnings, advice, instructions or information to Plaintiff so that he may have made an adequate and informed judgment as to the use of Defendants’ Asbestos Products; and (o) failed to develop, make available and/or provide non-hazardous materials which could have been used for the same purpose as their Asbestos Products. 77. Defendants, individually and as a group, since the early 1900s possessed medical and scientific data which clearly indicated that asbestos and, consequently, their Asbestos Products were hazardous. However, in pursuit of pecuniary motives, Defendants, individually and collectively, suppressed, ignored and/or failed to act upon said medical and scientific data and conspired to deprive the