On November 18, 2019 a
Answer
was filed
involving a dispute between
Michael A Runyon,
and
Abb, Inc. Individually And As Successor In Interest To Ite Circuit Breakers, Inc,
Air & Liquid Systems Corporation, As Successor-By-Merger To Buffalo Pumps, Inc,
Amchem Products, Inc., N K A Rhone Poulenc Ag Company, N K A Bayer Cropscience Inc,
American Honda Motor Co., Inc.,
Atwood & Morrill Company,
Aurora Pump Company,
Blackmer,
Borgwarner Morse Tec Llc,
Briggs & Stratton Corp,
Bw Ip, Inc. And Its Wholly Owned Subsidiaries,
Carrier Corporation,
Cbs Corporation, F K A Viacom Inc., Successor By Merger To Cbs Corporation, F K A Westinghouse Electric Corporation,
Certainteed Corporation,
Cleaver Brooks Company, Inc,
Crane Co,
Crosby Valve Llc,
Dana Companies, Llc,
Eaton Corporation, Individually And As Successor -In-Interest To Cutler-Hammer, Inc,
Flowserve Us, Inc. Individually And Successor To Rockwell Manufacturing Company, Edward Valve, Inc., Nordstrom Valves, Inc., Edward Vogt Valve Company, And Vogt Valve Company,
Fmc Corporation, On Behalf Of Its Former Chicago Pump & Northern Pump Businesses,
Ford Motor Company,
Foster Wheeler, L.L.C,
General Electric Company,
Gould Electronics Inc.,
Goulds Pumps Llc,
Honeywell International, Inc., F K A Allied Signal, Inc. Bendix,
Imo Industries, Inc,
Itt Industries, Inc. Individually And As Successor-In-Interest To Hoffman Specialty,
Itt Llc., Individually And As Successor To Bell & Gossett And As Successor To Kennedy Valve Manufacturing Co., Inc,
Jenkins Bros,
Kawasaki Motors Corporation,
Kohler Co,
Mccord Corporation,
Milton Roy Company,
Pfizer, Inc.,
Standard Motor Products, Inc,
Superior Lidgerwood Mundy Corporation,
Taco, Inc,
Tecumseh Products Company,
The Nash Engineering Company,
Tyco International,
Union Carbide Corporation,
U.S. Rubber Company,
Velan Valve Corporation,
Viking Pump, Inc,
Warren Pumps, Llc,
Weil-Mclain, A Division Of The Marley-Wylain Company, A Wholly Owned Subsidiary Of The Marley Company, Llc,
for Torts - Asbestos
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019
SUPREME COURT OF THE ST ATE OF NEW YORK
COUNTY OF NEW YORK
MICHAEL A. RUNYON, Index No.: 190296/2019
Plaintiff(s), VERIFIED ANSWER TO
PLAINTIFF'S VERIFIED
-against- COMPLAINT, ANSWER TO
THE NYAL-WEITZ &
ABB, INC., Individually and as successor in interest LUXENBERG, P.C. STANDARD
to ITE CIRCUIT BREAKERS, INC., et al., ASBESTOS COMPLAINT FOR
including BLACKMER, PERSONAL INJURY N0.7,
CROSS-CLAIM AND ANSWER
Defendants. TO CROSS-CLAIMS OF
DEFENDANT BLACKMER
Defendant BLACKMER, by its attorneys Malaby & Bradley, LLC, hereby answers Plaintiffs
Verified Complaint filed upon information and belief on or about November 18, 2019
("Complaint"), and the NY AL - Weitz & Luxenberg, P .C. Standard Asbestos Complaint for Personal
Injury No. 7 filed on or about June 29, 2004, under Index No. 40,000/88 (hereinafter, "Standard
Personal Injury Complaint") which is incorporated by reference in the Complaint and alleges, upon
information and belief, as follows:
VERIFIED COMPLAINT
1. Paragraph 1 of the Complaint is introductory in nature and does not require an
admission or denial by Blackmer.
2. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 2 and 3 (inclusive) of the Complaint, and refers all
questions of law to the Court.
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3. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 4 through 8 (inclusive) of the Complaint insofar as
these allegations are not directed against it, and refers all questions of law to the Court.
4. Blackmer denies the truth of the allegations contained in paragraph 9 of the
Complaint, except admits that Blackmer is a duly organized foreign corporation with its principal
place of business outside of the State of New York, which has transacted business within the state of
New York, and refers all questions of law to the Com1.
5. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 10 through 30 (inclusive) of the Complaint insofar as
these allegations are not directed against it, and refers all questions of law to the Court.
6. The final unnumbered paragraph of the Complaint is introductory and
transitional in nature and does not require an admission or denial by Blackmer.
NYAL- WEITZ & LUXENBERG, P.C. STANDARD ASBESTOS COMPLAINT FOR
PERSONAL INJURY NO. 7
7. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph 1 of Standard Personal Injury Complaint, and refers
all questions of law to the Court.
8. Paragraph 2 of the Standard Personal Injury Complaint is stylistic in nature
and does not require an admission or denial by Blackmer.
9. Blackmer denies the allegations contained in paragraph 3 of the Standard
Personal Injury Complaint to the extent they are directed at Blackmer, except admits that Blackmer
Blackmer transacted business in the State of New York, denies upon information and belief that such
such transactions give rise to jurisdiction over Blackmer by the Courts of State of New York in this
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this matter, denies knowledge or information sufficient to form a belief as to the truth of the
allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all
all questions of law to the Court.
10. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 4 through 157 (inclusive) of Standard Personal Injury
Complaint insofar as these allegations are not directed at Blackmer.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS, EXCEPT
PARAGRAPHS 169, 170, and 172 WHICH ARE NOT ALLEGED FOR THOSE
ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HA VE OCCURRED ABOARD
ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYARD OR ON OR AT
ANY GOVERNMENTAL FACILITY OR LOCATION
11. With regard to paragraph 158 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 157
(inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
12. Blackmer denies the truth of the allegations contained in paragraphs 159
through 177 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at
Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the
allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all
questions of law to the Court.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS,
EXCEPT FOR THOSE ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HA VE
OCCURRED ABOARD ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY
SHIPYARD OR ON OR AT ANY GOVERNMENTAL FACILITY OR LOCATION
13. With regard to paragraph 178 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 177
177 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
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14. Blackmer denies the truth of the allegations contained in paragraphs 179
through 183 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at
Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the
allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all
questions of law to the Court.
AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS, EXCEPT
NO CLAIMS ALLEGING A MANUFACTURE OR DESIGN DEFECT, OTHER THAN
FAILURE TO WARN, ARE MADE FOR ANY ASBESTOS EXPOSURES WHICH ARE
ALLEGED TO HAVE OCCURRED ABOARD ANY MILITARY VESSEL OR
VEHICLE, ON OR AT ANY SHIPYARD OR ON OR AT ANY GOVERNMENTAL
FACILITY OR LOCATION
15. With regard to paragraph 184 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 183
(inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
16. Blackmer denies the truth of the allegations contained in paragraphs 185
through 193 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at
Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the
allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all
questions of law to the Court.
AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL OTHER
DEFENDANTS, EXCEPT NO CLAIMS ALLEGING A MANUFACTURE OR DESIGN
DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE FOR ASBESTOS
EXPOSURES WHICH ARE ALLEGED TO HA VE OCCURRED AOBARD ANY
MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYAR OR ON OR AT ANY
GOVERNMENTAL FACILITY OR LOCATION
17. With regard to paragraph 194 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 193
193 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
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18. Blackmer denies the truth of the allegations contained in paragraphs 195
through 204 (inclusive) of the Standard Personal Injury Complaint, including all sub-paiis therein, to
the extent they are directed at Blackmer, denies knowledge or information sufficient to form a belief
as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this
action, and refers all questions of law to the Court.
AS AND FOR A FIFTH CAUSE OF ACTION
AS AGAINST ALL DEFENDANTS
19. With regard to paragraph 205 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 204
(inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
20. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 206 through 223 (inclusive), including all sub-parts
therein, insofar as these allegations are not directed at Blackmer, and otherwise generally denies the
truth of the allegations contained in paragraphs 206 through 223 (inclusive) of Standard Personal
Injury Complaint, including all sub-parts therein, and refers all questions of law to the Court.
AS AND FOR A SIXTH CAUSE
OF ACTION AGAINST DEFENDANTS
21. With regard to paragraph 224 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 223
(inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
22. Blackmer denies knowledge or information sufficient to form a belief as to the
the truth of the allegations contained in paragraphs 225 through 232 (inclusive), insofar as these
allegations are not directed at Blackmer, and otherwise generally denies the truth of the allegations
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allegations contained in paragraphs 225 through 232 (inclusive) of Standard Personal Injury
Complaint, and refers all questions of law to the Court.
AS AND FOR A SEVENTH CAUSEOF ACTION AGAINST DEFENDANTS
23. With regard to paragraph 233 of Standard Personal Injury Complaint,
Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 232
(inclusive) of Standard Personal Injury Complaint as is more fully set forth herein.
24. Blackmer denies knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs 234 and 235 of Standard Personal Injury Complaint,
and refers all questions of law to the Court.
WHEREFORE, Blackmer denies that it is liable to Plaintiff on any of Plaintiffs causes
of action and demands judgment in its favor and against Plaintiff on all counts.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
25. The Verified Complaint fails to state a cause of action upon which relief can
be granted against Blackmer.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
26. Plaintiffs claims are time barred by reason of the applicable statute(s) of
limitations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
27. In the event that Plaintiff relies 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.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
28. Plaintiffs claims are barred by the operation of the doctrine oflaches.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
29. Plaintiff's claims are barred by the operation of the doctrine of estoppel.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
30. Plaintiff has waived all claims against Blackmer.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
31. This Court lacks jurisdiction over the subject matter in this action.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
32. This Court lacks personal jurisdiction over Blackmer.
AS AND FOR AN NINTH AFFIRMATIVE DEFENSE
33. The venue of this action is improper.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
34. Plaintiff lacks the capacity, standing or authority to bring this action, in whole
or in part.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
35. Plaintiff's claims are barred by the doctrines ofres judicata and/or collateral
estoppel.
AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE
36. Plaintiff's speculative, uncertain and/or contingent damages have not accrued
and are not recoverable.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
37. Joinder of individual Plaintiffs in this action is improper because they do not
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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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
38. This cause of action must be dismissed in the event Plaintiff has another
action pending against Blackmer for the same cause of action in another court.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
39. In the event Plaintiff executed a settlement agreement releasing and
discharging Blackmer from all claims arising out of Plaintiff's alleged injuries, all claims alleged by
Plaintiff should be dismissed.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
40. To the extent that Plaintiff has given a release or covenant not to sue or not to
enforce a judgment to an alleged co-tortfeasor of Blackmer, Plaintiff's 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.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
41. Plaintiff was not injured by exposure to any Blackmer products.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
42. In the event that Plaintiff was employed by any of the Defendants, Plaintiff's
sole and exclusive remedy is under the Workers' Compensation Law of the State of New York.
AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE
43. Insofar as the Complaint, and each cause of action considered separately,
allege a cause of action accruing on or after September 1, 1975 to recover damages for personal
injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable
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culpable conduct attributable to Plaintiff, including contributory negligence and assumption of risk in
risk in the proportion which with the culpable conduct attributable to Plaintiff bears to the culpable
culpable conduct which caused the damages.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
44. Insofar as the Complaint, and each cause of action considered separately,
allege a cause of action accruing on or after September 1, 197 5 each such cause of action is barred by
reason of the culpable conduct attributable to Plaintiff, including contributory negligence and
assumption of risk.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
45. To the extent that Plaintiff was injured as alleged in the Complaint, which
Blackmer denies, said injury was proximately caused by the negligence, breach of warranty and/or
strict liability of persons and/or entities other than Blackmer.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
46. To the extent that Plaintiff was injured as alleged in the Complaint, which
Blackmer denies, such injury was the result of intervening and/or superseding acts or omissions of
parties over whom Blackmer had no control or right to control.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
47. At all times relevant hereto, the knowledge of Plaintiff's employer(s) was
superior to that of Blackmer with respect to possible health hazards associated with Plaintiff's
employment, and, therefore, ifthere was any duty to warn or provide protection to Plaintiff, it was
the duty of said employer, not of Blackmer, and breach of that duty was an intervening and/or
superseding cause of the injuries allegedly sustained by Plaintiff.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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48. At all times during the conduct of their corporate operations, the agents,
servants and/or employees of Blackmer used proper methods in their production activities in
conformity to the available knowledge and research of the scientific and industrial communities.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
49. To the extent that Plaintiff sustained injuries from the use of Blackmer
products, which Blackmer denies, such injuries resulted from the unforeseeable misuse, abuse,
alteration, modification, and/or unauthorized handling of the product by Plaintiff, or by third-parties,
over whom Blackmer had no control or right to control.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
50. Plaintiff voluntarily assumed the risks associated with the use of or exposure
to the products at issue.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
51. Blackmer 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 Complaint.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
52. Plaintiff contributed to the injuries alleged by the use of tobacco products
and/or other substances, products, medications and drugs.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
53. Plaintiff's injuries were caused directly, solely and proximately by
sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiff and not found in the general
public, of which Blackmer neither knew, had reason to know, nor could have foreseen.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
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54. As to all causes of action pleaded in the Complaint which are based upon
expressed or implied representations, such causes of action are legally insufficient as against
Blackmer as there was no privity of contract between Plaintiff and Blackmer.
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
55. Plaintiff never purchased, directly or indirectly, any asbestos-containing
product or materials from Blackmer, nor did Plaintiff ever receive or rely upon any representation
allegedly made by Blackmer.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
56. Plaintiff lacks capacity and/or standing to maintain a claim for relief against
Blackmer with respect to injuries alleged to have been suffered by Plaintiff.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
57. To the extent that Plaintiff was exposed to any product manufactured by
Blackmer, which Blackmer denies, said exposure was de minimis and not a substantial contributing
factor to any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal
of the Complaint against Blackmer.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
58. Plaintiffs claims are barred because of Plaintiffs failure to join necessary
and indispensable parties.
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
59. To the extent that Plaintiff is entitled to damages, which Blackmer denies,
Blackmer is entitled to a set-off for all Workers' Compensation payments received by Plaintiff.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
60. In accordance with CPLR 1601, Blackmer's liability for non-economic loss is
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loss is limited to its equitable share of the total liability for non-economic loss.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
61. In accordance with CPLR 4545( c), Blackmer is entitled to a set-off for any
past or future costs or expenses incurred or to be incurred by Plaintiff 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.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
62. 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 Blackmer neither knew, had reason to know, nor could have
known of any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of
Blackmer's products.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
63. Any injuries sustained by Plaintiff 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 Blackmer, 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
Blackmer concerning the properties and characteristics of asbestos and asbestos-containing products.
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
64. Any asbestos-containing Blackmer products were supplied according to the
the purchaser's or user's specifications and standards.
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AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
65. Blackmer was under no legal duty to warn Plaintiff of any hazards from the
use of any asbestos-containing products. The actual purchasers and/or those under the purchasers'
control, Plaintiffs employer(s), and the owners and lessors of the properties at which Plaintiff
alleges exposure to such products, were in a far better position to warn Plaintiff 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 injury.
AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
66. Plaintiff was reasonably and adequately warned of any alleged risks associated
with the use of or exposure to asbestos-containing products and failed to take necessary or
recommended precautions to prevent against the risk of injury.
AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
67. Timely and/or proper notice was not given to Blackmer as to any alleged;
breach of warranty.
AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
68. To the extent Plaintiffs claims are based on an alleged breach of warranty;
Plaintiff did not rely on any warranty.
AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
69. Any oral warranties upon which Plaintiff allegedly relied are inadmissible
under the Statute of Frauds.
AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
70. Any claims by Plaintiff for exemplary and/or punitive damages are barred
because such damages are not recoverable or warranted.
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AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
71. Blackmer's conduct was not reckless, malicious, willful or grossly negligent,
and consequently, Plaintiff is not entitled to exemplary and/or punitive damages.
AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
72. Any claims 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.
AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
73. Any claims for punitive damages are barred by the ex post facto clause of
Article I, Section 10 of the United States Constitution.
AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
74. Any claims for punitive damages are barred by the proscription of Article I,
Section 5 of the New York State Constitution prohibiting the imposition of excessiveness.
AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
75. 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.
AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
76. The damages allegedly sustained by plaintiff were caused, in whole or in part,
by the negligence or other culpable conduct of plaintiff and/or other defendants, which conduct
constituted a supervening case of plaintiffs alleged injuries.
AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
77. Any damages allegedly sustained by the plaintiff were the proximate result of
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of an unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless or
or intentional conduct constituting an intervening or superseding act or omission or other conduct by
by third parties.
AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
78. The damages allegedly sustained by plaintiff were caused, in whole or in
part, through unavoidable natural consequences.
AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
79. If the plaintiff sustained damages as alleged, such damages occurred while
they engaged in activities into which they entered, knowing the hazard, risk and danger of the
activities and they assumed the risks incidental to and attendant to the activities.
AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
80. No acts or omissions of Blackmer proximately caused plaintiffs damages.
AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
81. Any asbestos-containing product of or used in conjunction with products sold
by Blackmer that may have been present at Plaintiffs job locations were installed or configured on
the basis of the specifications, approval or the instruction of governmental or legislative agencies or
other regulatory bodies.
AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
82. The damages sustained by Plaintiff arising from their alleged exposure to
asbestos-containing products while working on or near the equipment or other product allegedly
manufactured or sold by Blackmer (the "Product"), were caused, in whole or in part, by the improper
improper use and operation of the Product, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of
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of the Product by Blackmer.
AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
83. The damages sustained by Plaintiff which allegedly arose from the Product
were caused by its alteration, misuse and/or improper maintenance by one or more persons or
instrumentalities other that Blackmer, rather than any defect in the design, manufacture, production,
assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Product
by Blackmer.
AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
84. The Product was in all respects fit and suitable for its intended and reasonably
foreseeable uses and was not in a defective or dangerous condition when it left Blackmer's
possession and control.
AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
85. No implied warranties, including the warranties of merchantability and fitness
for particular purpose, because a part of the basis of the bargain in the sale of the Product.
AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
86. In the event itshould be proven at the time of trial that all defendants are
subject to market share liability, then Blackmer's share of such liability would be of such a de
minimis amount as to make its contribution for damages negligible, and Blackmer would be entitled
to contribution, either in whole or in part, from co-defendants.
AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
87. Blackmer denies that the asbestos products alleged in plaintiff's Verified
Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and
and as such the Verified Complaint fails to state a cause of action in strict liability.
{00139897.}
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AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE
88. Exposure to asbestos fibers allegedly attributable to Blackmer or its
predecessor was so de minimis so as to be insufficient as a matter of law to enable plaintiff to
establish to a reasonable degree of probability that the Products are capable of causing injury or
damages and must be considered speculative as a matter of law.
AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE
89. Finished or otherwise encapsulated asbestos-containing products are not
unreasonably dangers as a matter of law.
AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE
90. If Blackmer or its predecessor was on notice of any hazard or defect for which
plaintiff seeks relief, which Blackmer denies, plaintiff also had such notice of the existing hazard at
or about the same time as Blackmer, and is thereby barred from recovery.
AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE
91. There is no justiciable issue or controversy.
AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE
92. Plaintiffs claim is barred under applicable state and federal law.
AS AND FORA SIXTY-NINTH AFFIRMATIVE DEFENSE
93. Plaintiffs claims are barred under applicable law pursuant to public
policy, since social utility and benefit of asbestos-containing products outweighed the risk at the
time of plaintiffs alleged exposure.
{00139897.}
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AS AND FOR A SEVENTIETH AFFIRMATIVE DEFENSE
94. To the extent plaintiff seeks to maintain a claim for relief on behalf of any
decedent, said plaintiff lacks capacity and/or standing to maintain such claim for relief against
Blackmer.
AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE
95. Plaintiff may not bring this action as they have failed to exhaust all of their
administrative remedies.
AS AND FOR A SEVENTY-SECOND AFFIRMATIVE DEFENSE
96. Plaintiff and/or plaintiffs' decedents failed to mitigate or otherwise act to
lessen or reduce the injuries alleged in the Verified Complaint.
AS AND FOR A SEVENTY-THIRD AFFIRMATIVE DEFENSE
97. The damages allegedly sustained by plaintiff were caused, in whole or in part,
by the negligence or other culpable conduct of one or more persons or instrumentalities over which
Blackmer had not control and with whom it had no legal relationship.
AS AND FOR A SEVEN
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FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK MICHAEL A. RUNYON, Index No.: 190296/2019 Plaintiff(s), VERIFIED ANSWER TO PLAINTIFF'S VERIFIED -against- COMPLAINT, ANSWER TO THE NYAL-WEITZ & ABB, INC., Individually and as successor in interest LUXENBERG, P.C. STANDARD to ITE CIRCUIT BREAKERS, INC., et al., ASBESTOS COMPLAINT FOR including BLACKMER, PERSONAL INJURY N0.7, CROSS-CLAIM AND ANSWER Defendants. TO CROSS-CLAIMS OF DEFENDANT BLACKMER Defendant BLACKMER, by its attorneys Malaby & Bradley, LLC, hereby answers Plaintiffs Verified Complaint filed upon information and belief on or about November 18, 2019 ("Complaint"), and the NY AL - Weitz & Luxenberg, P .C. Standard Asbestos Complaint for Personal Injury No. 7 filed on or about June 29, 2004, under Index No. 40,000/88 (hereinafter, "Standard Personal Injury Complaint") which is incorporated by reference in the Complaint and alleges, upon information and belief, as follows: VERIFIED COMPLAINT 1. Paragraph 1 of the Complaint is introductory in nature and does not require an admission or denial by Blackmer. 2. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 2 and 3 (inclusive) of the Complaint, and refers all questions of law to the Court. {00139897.} 1 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 3. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 4 through 8 (inclusive) of the Complaint insofar as these allegations are not directed against it, and refers all questions of law to the Court. 4. Blackmer denies the truth of the allegations contained in paragraph 9 of the Complaint, except admits that Blackmer is a duly organized foreign corporation with its principal place of business outside of the State of New York, which has transacted business within the state of New York, and refers all questions of law to the Com1. 5. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 10 through 30 (inclusive) of the Complaint insofar as these allegations are not directed against it, and refers all questions of law to the Court. 6. The final unnumbered paragraph of the Complaint is introductory and transitional in nature and does not require an admission or denial by Blackmer. NYAL- WEITZ & LUXENBERG, P.C. STANDARD ASBESTOS COMPLAINT FOR PERSONAL INJURY NO. 7 7. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of Standard Personal Injury Complaint, and refers all questions of law to the Court. 8. Paragraph 2 of the Standard Personal Injury Complaint is stylistic in nature and does not require an admission or denial by Blackmer. 9. Blackmer denies the allegations contained in paragraph 3 of the Standard Personal Injury Complaint to the extent they are directed at Blackmer, except admits that Blackmer Blackmer transacted business in the State of New York, denies upon information and belief that such such transactions give rise to jurisdiction over Blackmer by the Courts of State of New York in this {00139897.} 2 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 this matter, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all all questions of law to the Court. 10. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 4 through 157 (inclusive) of Standard Personal Injury Complaint insofar as these allegations are not directed at Blackmer. AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS, EXCEPT PARAGRAPHS 169, 170, and 172 WHICH ARE NOT ALLEGED FOR THOSE ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HA VE OCCURRED ABOARD ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYARD OR ON OR AT ANY GOVERNMENTAL FACILITY OR LOCATION 11. With regard to paragraph 158 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 157 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. 12. Blackmer denies the truth of the allegations contained in paragraphs 159 through 177 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all questions of law to the Court. AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS, EXCEPT FOR THOSE ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HA VE OCCURRED ABOARD ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYARD OR ON OR AT ANY GOVERNMENTAL FACILITY OR LOCATION 13. With regard to paragraph 178 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 177 177 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. {00139897.} 3 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 14. Blackmer denies the truth of the allegations contained in paragraphs 179 through 183 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS, EXCEPT NO CLAIMS ALLEGING A MANUFACTURE OR DESIGN DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE FOR ANY ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HAVE OCCURRED ABOARD ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYARD OR ON OR AT ANY GOVERNMENTAL FACILITY OR LOCATION 15. With regard to paragraph 184 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 183 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. 16. Blackmer denies the truth of the allegations contained in paragraphs 185 through 193 (inclusive) of the Standard Personal Injury Complaint to the extent they are directed at Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all questions of law to the Court. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL OTHER DEFENDANTS, EXCEPT NO CLAIMS ALLEGING A MANUFACTURE OR DESIGN DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE FOR ASBESTOS EXPOSURES WHICH ARE ALLEGED TO HA VE OCCURRED AOBARD ANY MILITARY VESSEL OR VEHICLE, ON OR AT ANY SHIPYAR OR ON OR AT ANY GOVERNMENTAL FACILITY OR LOCATION 17. With regard to paragraph 194 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 193 193 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. {00139897.} 4 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 18. Blackmer denies the truth of the allegations contained in paragraphs 195 through 204 (inclusive) of the Standard Personal Injury Complaint, including all sub-paiis therein, to the extent they are directed at Blackmer, denies knowledge or information sufficient to form a belief as to the truth of the allegations to the extent they pertain to Plaintiff or any other defendant in this action, and refers all questions of law to the Court. AS AND FOR A FIFTH CAUSE OF ACTION AS AGAINST ALL DEFENDANTS 19. With regard to paragraph 205 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 204 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. 20. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 206 through 223 (inclusive), including all sub-parts therein, insofar as these allegations are not directed at Blackmer, and otherwise generally denies the truth of the allegations contained in paragraphs 206 through 223 (inclusive) of Standard Personal Injury Complaint, including all sub-parts therein, and refers all questions of law to the Court. AS AND FOR A SIXTH CAUSE OF ACTION AGAINST DEFENDANTS 21. With regard to paragraph 224 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 223 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. 22. Blackmer denies knowledge or information sufficient to form a belief as to the the truth of the allegations contained in paragraphs 225 through 232 (inclusive), insofar as these allegations are not directed at Blackmer, and otherwise generally denies the truth of the allegations {00139897.} 5 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 allegations contained in paragraphs 225 through 232 (inclusive) of Standard Personal Injury Complaint, and refers all questions of law to the Court. AS AND FOR A SEVENTH CAUSEOF ACTION AGAINST DEFENDANTS 23. With regard to paragraph 233 of Standard Personal Injury Complaint, Blackmer repeats, reiterates and realleges each and every response as to paragraphs 1 through 232 (inclusive) of Standard Personal Injury Complaint as is more fully set forth herein. 24. Blackmer denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 234 and 235 of Standard Personal Injury Complaint, and refers all questions of law to the Court. WHEREFORE, Blackmer denies that it is liable to Plaintiff on any of Plaintiffs causes of action and demands judgment in its favor and against Plaintiff on all counts. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 25. The Verified Complaint fails to state a cause of action upon which relief can be granted against Blackmer. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 26. Plaintiffs claims are time barred by reason of the applicable statute(s) of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 27. In the event that Plaintiff relies 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. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 28. Plaintiffs claims are barred by the operation of the doctrine oflaches. {00139897.} 6 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 29. Plaintiff's claims are barred by the operation of the doctrine of estoppel. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 30. Plaintiff has waived all claims against Blackmer. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 31. This Court lacks jurisdiction over the subject matter in this action. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 32. This Court lacks personal jurisdiction over Blackmer. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 33. The venue of this action is improper. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 34. Plaintiff lacks the capacity, standing or authority to bring this action, in whole or in part. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 35. Plaintiff's claims are barred by the doctrines ofres judicata and/or collateral estoppel. AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE 36. Plaintiff's speculative, uncertain and/or contingent damages have not accrued and are not recoverable. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 37. Joinder of individual Plaintiffs in this action is improper because they do not 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. {00139897.} 7 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 38. This cause of action must be dismissed in the event Plaintiff has another action pending against Blackmer for the same cause of action in another court. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 39. In the event Plaintiff executed a settlement agreement releasing and discharging Blackmer from all claims arising out of Plaintiff's alleged injuries, all claims alleged by Plaintiff should be dismissed. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 40. To the extent that Plaintiff has given a release or covenant not to sue or not to enforce a judgment to an alleged co-tortfeasor of Blackmer, Plaintiff's 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. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 41. Plaintiff was not injured by exposure to any Blackmer products. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 42. In the event that Plaintiff was employed by any of the Defendants, Plaintiff's sole and exclusive remedy is under the Workers' Compensation Law of the State of New York. AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE 43. Insofar as the Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable {00139897.} 8 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 culpable conduct attributable to Plaintiff, including contributory negligence and assumption of risk in risk in the proportion which with the culpable conduct attributable to Plaintiff bears to the culpable culpable conduct which caused the damages. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 44. Insofar as the Complaint, and each cause of action considered separately, allege a cause of action accruing on or after September 1, 197 5 each such cause of action is barred by reason of the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of risk. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 45. To the extent that Plaintiff was injured as alleged in the Complaint, which Blackmer denies, said injury was proximately caused by the negligence, breach of warranty and/or strict liability of persons and/or entities other than Blackmer. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 46. To the extent that Plaintiff was injured as alleged in the Complaint, which Blackmer denies, such injury was the result of intervening and/or superseding acts or omissions of parties over whom Blackmer had no control or right to control. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 47. At all times relevant hereto, the knowledge of Plaintiff's employer(s) was superior to that of Blackmer with respect to possible health hazards associated with Plaintiff's employment, and, therefore, ifthere was any duty to warn or provide protection to Plaintiff, it was the duty of said employer, not of Blackmer, and breach of that duty was an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiff. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE {00139897.} 9 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 48. At all times during the conduct of their corporate operations, the agents, servants and/or employees of Blackmer used proper methods in their production activities in conformity to the available knowledge and research of the scientific and industrial communities. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 49. To the extent that Plaintiff sustained injuries from the use of Blackmer products, which Blackmer denies, such injuries resulted from the unforeseeable misuse, abuse, alteration, modification, and/or unauthorized handling of the product by Plaintiff, or by third-parties, over whom Blackmer had no control or right to control. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 50. Plaintiff voluntarily assumed the risks associated with the use of or exposure to the products at issue. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 51. Blackmer 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 Complaint. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 52. Plaintiff contributed to the injuries alleged by the use of tobacco products and/or other substances, products, medications and drugs. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 53. Plaintiff's injuries were caused directly, solely and proximately by sensitivities, idiosyncrasies, and other reactions peculiar to Plaintiff and not found in the general public, of which Blackmer neither knew, had reason to know, nor could have foreseen. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE {00139897.} 10 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 54. As to all causes of action pleaded in the Complaint which are based upon expressed or implied representations, such causes of action are legally insufficient as against Blackmer as there was no privity of contract between Plaintiff and Blackmer. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 55. Plaintiff never purchased, directly or indirectly, any asbestos-containing product or materials from Blackmer, nor did Plaintiff ever receive or rely upon any representation allegedly made by Blackmer. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 56. Plaintiff lacks capacity and/or standing to maintain a claim for relief against Blackmer with respect to injuries alleged to have been suffered by Plaintiff. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 57. To the extent that Plaintiff was exposed to any product manufactured by Blackmer, which Blackmer denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal of the Complaint against Blackmer. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 58. Plaintiffs claims are barred because of Plaintiffs failure to join necessary and indispensable parties. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 59. To the extent that Plaintiff is entitled to damages, which Blackmer denies, Blackmer is entitled to a set-off for all Workers' Compensation payments received by Plaintiff. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 60. In accordance with CPLR 1601, Blackmer's liability for non-economic loss is {00139897.} 11 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 loss is limited to its equitable share of the total liability for non-economic loss. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 61. In accordance with CPLR 4545( c), Blackmer is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiff 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. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 62. 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 Blackmer neither knew, had reason to know, nor could have known of any foreseeable or significant risk or harm to Plaintiff in the normal or expected use of Blackmer's products. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 63. Any injuries sustained by Plaintiff 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 Blackmer, 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 Blackmer concerning the properties and characteristics of asbestos and asbestos-containing products. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 64. Any asbestos-containing Blackmer products were supplied according to the the purchaser's or user's specifications and standards. {00139897.} 12 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 65. Blackmer was under no legal duty to warn Plaintiff of any hazards from the use of any asbestos-containing products. The actual purchasers and/or those under the purchasers' control, Plaintiffs employer(s), and the owners and lessors of the properties at which Plaintiff alleges exposure to such products, were in a far better position to warn Plaintiff 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 injury. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 66. Plaintiff was reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products and failed to take necessary or recommended precautions to prevent against the risk of injury. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 67. Timely and/or proper notice was not given to Blackmer as to any alleged; breach of warranty. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 68. To the extent Plaintiffs claims are based on an alleged breach of warranty; Plaintiff did not rely on any warranty. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 69. Any oral warranties upon which Plaintiff allegedly relied are inadmissible under the Statute of Frauds. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 70. Any claims by Plaintiff for exemplary and/or punitive damages are barred because such damages are not recoverable or warranted. {00139897.} 13 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 71. Blackmer's conduct was not reckless, malicious, willful or grossly negligent, and consequently, Plaintiff is not entitled to exemplary and/or punitive damages. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 72. Any claims 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. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 73. Any claims for punitive damages are barred by the ex post facto clause of Article I, Section 10 of the United States Constitution. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE 74. Any claims for punitive damages are barred by the proscription of Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessiveness. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 75. 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. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE 76. The damages allegedly sustained by plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of plaintiff and/or other defendants, which conduct constituted a supervening case of plaintiffs alleged injuries. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 77. Any damages allegedly sustained by the plaintiff were the proximate result of {00139897.} 14 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 of an unforeseen occurrence and/or unforeseeable negligence, gross negligence, wanton, reckless or or intentional conduct constituting an intervening or superseding act or omission or other conduct by by third parties. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE 78. The damages allegedly sustained by plaintiff were caused, in whole or in part, through unavoidable natural consequences. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 79. If the plaintiff sustained damages as alleged, such damages occurred while they engaged in activities into which they entered, knowing the hazard, risk and danger of the activities and they assumed the risks incidental to and attendant to the activities. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE 80. No acts or omissions of Blackmer proximately caused plaintiffs damages. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE 81. Any asbestos-containing product of or used in conjunction with products sold by Blackmer that may have been present at Plaintiffs job locations were installed or configured on the basis of the specifications, approval or the instruction of governmental or legislative agencies or other regulatory bodies. AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE 82. The damages sustained by Plaintiff arising from their alleged exposure to asbestos-containing products while working on or near the equipment or other product allegedly manufactured or sold by Blackmer (the "Product"), were caused, in whole or in part, by the improper improper use and operation of the Product, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of {00139897.} 15 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 of the Product by Blackmer. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE 83. The damages sustained by Plaintiff which allegedly arose from the Product were caused by its alteration, misuse and/or improper maintenance by one or more persons or instrumentalities other that Blackmer, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the Product by Blackmer. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE 84. The Product was in all respects fit and suitable for its intended and reasonably foreseeable uses and was not in a defective or dangerous condition when it left Blackmer's possession and control. AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE 85. No implied warranties, including the warranties of merchantability and fitness for particular purpose, because a part of the basis of the bargain in the sale of the Product. AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE 86. In the event itshould be proven at the time of trial that all defendants are subject to market share liability, then Blackmer's share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and Blackmer would be entitled to contribution, either in whole or in part, from co-defendants. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE 87. Blackmer denies that the asbestos products alleged in plaintiff's Verified Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and and as such the Verified Complaint fails to state a cause of action in strict liability. {00139897.} 16 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A SIXTY-FOURTH AFFIRMATIVE DEFENSE 88. Exposure to asbestos fibers allegedly attributable to Blackmer or its predecessor was so de minimis so as to be insufficient as a matter of law to enable plaintiff to establish to a reasonable degree of probability that the Products are capable of causing injury or damages and must be considered speculative as a matter of law. AS AND FOR A SIXTY-FIFTH AFFIRMATIVE DEFENSE 89. Finished or otherwise encapsulated asbestos-containing products are not unreasonably dangers as a matter of law. AS AND FOR A SIXTY-SIXTH AFFIRMATIVE DEFENSE 90. If Blackmer or its predecessor was on notice of any hazard or defect for which plaintiff seeks relief, which Blackmer denies, plaintiff also had such notice of the existing hazard at or about the same time as Blackmer, and is thereby barred from recovery. AS AND FOR A SIXTY-SEVENTH AFFIRMATIVE DEFENSE 91. There is no justiciable issue or controversy. AS AND FOR A SIXTY-EIGHTH AFFIRMATIVE DEFENSE 92. Plaintiffs claim is barred under applicable state and federal law. AS AND FORA SIXTY-NINTH AFFIRMATIVE DEFENSE 93. Plaintiffs claims are barred under applicable law pursuant to public policy, since social utility and benefit of asbestos-containing products outweighed the risk at the time of plaintiffs alleged exposure. {00139897.} 17 of 23 FILED: NEW YORK COUNTY CLERK 12/30/2019 04:57 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 12/30/2019 AS AND FOR A SEVENTIETH AFFIRMATIVE DEFENSE 94. To the extent plaintiff seeks to maintain a claim for relief on behalf of any decedent, said plaintiff lacks capacity and/or standing to maintain such claim for relief against Blackmer. AS AND FOR A SEVENTY-FIRST AFFIRMATIVE DEFENSE 95. Plaintiff may not bring this action as they have failed to exhaust all of their administrative remedies. AS AND FOR A SEVENTY-SECOND AFFIRMATIVE DEFENSE 96. Plaintiff and/or plaintiffs' decedents failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Verified Complaint. AS AND FOR A SEVENTY-THIRD AFFIRMATIVE DEFENSE 97. The damages allegedly sustained by plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which Blackmer had not control and with whom it had no legal relationship. AS AND FOR A SEVEN