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
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NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------x
MICHAEL A RUNYON,
Plaintiff, Index No.: 190296/2019
-against-
VERIFIED ANSWER
ABB, INC., et al.,
Defendants.
---------------------------------------------------------------x
Defendant, Velan Valve Corp. (hereinafter “Velan”), by its attorneys, Maron Marvel
Bradley Anderson & Tardy LLC, for its Verified Answer to plaintiff’s Verified Complaint
states as follows:
1. Velan makes no response as to the allegations contained in paragraphs “1” and
“3” of the Verified Complaint as none is required.
2. Velan denies any knowledge or information sufficient to form a belief as to the
allegations contained in paragraph “2” of the Verified Complaint.
3. Velan denies each and every allegation contained in paragraphs “4”, “5”, “6”,
“7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”,
“23”, “24”, “25”, “26”, “27”, “28”, “29”, and “30” of the Verified Complaint as to defendant
Velan and denies any knowledge or information sufficient to form a belief as to the allegations
as to all other defendants.
4. Velan hereby further answers plaintiff’s Verified Complaint in this action by
reference and incorporation of its corresponding Standard Answer filed and served pursuant to
the NYCAL Case Management Order.
AFFIRMATIVE DEFENSES
5. In the following defenses, the use of the term “Plaintiffs” shall be considered to
include both the singular and the plural, the masculine as well as the feminine, and, where
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appropriate, the Plaintiffs’ Decedent. Also, references to the “Complaint” shall, where
applicable, include any amendments thereto.
AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE
6. The Complaint fails to state a cause of action against Defendant.
AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE
7. This Court lacks jurisdiction over the subject matter of this action.
AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE
8. This Court lacks personal jurisdiction over Defendant.
AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE
9. This Court is not the proper venue for this matter.
AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE
10. The lawsuit was not commenced by Plaintiffs within the time prescribed by law
and the Plaintiffs, therefore, is barred from recovery pursuant to applicable statutes of
limitations.
AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE
11. Plaintiffs’ claims are barred by the doctrine of laches.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE
12. This action cannot be maintained, as there is another action pending for the same
relief.
AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE
13. To the extent that any injury relating to Plaintiffs occurred in the context of an
employer- employee relationship, claims for said injuries are preempted by the Workers’
Compensation Act.
AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE
14. There is no justiciable issue or controversy.
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AS AND FOR A TENTH SEPARATE AND COMPLETE DEFENSE
15. The claims for damages have not accrued, are purely speculative, uncertain and
contingent.
AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE DEFENSE
16. Plaintiffs’ claim is barred under applicable state and federal law.
AS AND FOR A TWELFTH SEPARATE AND COMPLETE DEFENSE
17. To the extent Plaintiffs seeks to maintain a claim for relief on behalf of any
decedent, said Plaintiffs lacks capacity and/or standing to maintain such claim for relief against
Defendant.
AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE
18. Plaintiffs lack the necessary standing to maintain this action.
AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE
19. To the extent Plaintiffs brings suit in a representative capacity, Plaintiffs has
failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York
Estate Powers and Trusts Law §5-1.1 to 5-4.6.
AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE
20. Plaintiffs’ injury was not foreseeable.
AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE
21. 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.
AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE
22. Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
indispensable parties.
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AS AND FOR AN EIGHTEENTH SEPARATE AND COMPLETE DEFENSE
23. Plaintiffs may not bring this action as Plaintiffs has failed to exhaust all of their
administrative remedies.
AS AND FOR A NINETEENTH SEPARATE AND COMPLETE DEFENSE
24. At all times relevant to this litigation, Defendant complied with all applicable
law, regulations and standards.
AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE
25. Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and
waiver.
AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE
26. Upon information and belief, some or all of the causes of action may not be
maintained because of res judicata.
AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE
27. Plaintiffs’ action is barred by the doctrine of preclusion.
AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE
28. Upon information and belief, some or all of the causes of action may not be
maintained because of arbitration and award.
AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
29. Upon information and belief, some or all of the causes of action may not be
maintained because of discharge in bankruptcy.
AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
30. Upon information and belief, some or all of the causes of action may not be
maintained because of payment.
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AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
31. Upon information and belief, some or all of the causes of action may not be
maintained because of release.
AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
32. Upon information and belief, Plaintiffs has made claims concerning his alleged
injuries in other matters, including but not limited to claims submitted to various trusts, which
claims foreclose Plaintiffs’ claims against Defendant.
AS AND FOR A TWENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
33. This Court lacks jurisdiction over Defendant by reason of improper service of
process.
AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE
34. The Complaint, and each purported cause of action stated therein, is ambiguous
and uncertain.
AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE
35. Economic and consequential damages are not properly recoverable in tort
actions, including actions based on negligence or strict liability.
AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE
36. Defendant asserts the defense of forum non-conveniens and reserves the right to
seek dismissal of the complaint.
AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE
37. If the Plaintiff is barred from recovery, the action of his/her spouse is also barred
because it is a derivative action.
AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE
38. If it is determined that Plaintiffs used asbestos containing products or
components of these products and it is determined that said products or components were sold
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by or on behalf of the United States of America, then Defendant is entitled to any sovereign or
governmental immunity available to the United States of America.
AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE
39. Plaintiffs voluntarily assumed the risk of injury.
AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE
40. If Plaintiffs sustained damages as alleged, such damages occurred while
Plaintiffs engaged in activities into which Plaintiffs 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 THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE
41. Plaintiff was a sophisticated user and was fully aware of any and all potentially
dangerous conditions.
AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
42. No acts or omissions of Defendant proximately caused Plaintiffs’ damages.
AS AND FOR A THIRTY- EIGHTH SEPARATE AND COMPLETE DEFENSE
43. To the extent Plaintiffs was exposed to any product containing asbestos as a
result of conduct by Defendant, which is denied, said exposure was de minimis and not a
substantial contributing factor to any asbestos-related disease which Plaintiffs may have
developed, such that Plaintiffs’ claim is not actionable at law or equity.
AS AND FOR A THIRTY- NINTH SEPARATE AND COMPLETE DEFENSE
44. Exposure to asbestos fibers allegedly attributable to Defendant was so de
minimis so as to be insufficient as a matter of law to enable Plaintiffs 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.
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AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE
45. Finished or otherwise encapsulated asbestos-containing products are not
unreasonably dangerous as a matter of law.
AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE
46. At all times, Defendant acted reasonably and with due care toward Plaintiffs.
Defendant was not negligent, reckless, did not engage in misconduct or willful misconduct
and did not act with wanton disregard for the rights, safety, and position of Plaintiffs or any
other person.
AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE
47. The damages allegedly sustained by Plaintiffs, which Defendant denies, were
not caused by any product manufactured, sold, distributed, supplied or installed by Defendant.
AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE
48. The damages allegedly sustained by Plaintiffs were caused, in whole or in part,
by the negligence or other culpable conduct of Plaintiffs and/or one or more persons or
instrumentalities over which Defendant had no control and with whom it had no legal
relationship, which conduct constituted a supervening cause of Plaintiffs’ alleged injuries.
AS AND FOR AN FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE
49. The damages allegedly sustained by Plaintiffs were caused, in whole or in part,
through unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of
Plaintiffs’ bodily composition and consequential unforeseeable reaction to the product, if any,
and/or one or more of its components, if any.
AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE
50. Defendant was under no duty to warn purchasers, their employees, other
independent contractors, or those under their control. If such warning was required, purchaser
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or Plaintiffs’ employer owed a duty to warn and their failure to do so was a superseding
proximate cause of injury.
AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE
51. Defendant denies that there was any defect and/or negligence in the mining,
processing, manufacture, designing, testing, investigation, fashioning, packaging, distribution,
delivery, and/or sale, in any asbestos product or material referred to in Plaintiffs’ Complaint,
but if there was any defect or negligence as alleged, then the Defendant is not liable as it
justifiably relied upon inspection by others in the regular course of trade and business, and
their failure constitutes a superseding proximate cause of any alleged injury suffered by
Plaintiffs.
AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
52. Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of
comparative negligence.
AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
53. Any damages which Plaintiffs sustained resulted solely from Plaintiffs’ own
negligence.
AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE
54. To the extent that Plaintiffs rely upon allegations of negligence, breach of
warranty, fraudulent representation and strict products liability as against Defendant prior to
September 1, 1975, the Verified Complaint fails to state a cause of action against Defendant
by reason of its failure to allege the freedom of Plaintiffs from contributory negligence.
Insofar as the Verified Compliant, and each cause of action considered separately, alleges a
cause of action accruing on or after September 1, 1975 to recover damages for personal
injuries, the amount of damages recoverable thereon must be diminished by reason of the
culpable conduct attributable to the Plaintiffs, including contributory negligence and
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assumption of risk, in the proportion which the culpable conduct attributable to the Plaintiffs
bears on the culpable conduct which caused the damages.
AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE
55. If Defendant was on notice of any hazard or defect for which Plaintiffs seeks
relief, which Defendant denies, Plaintiffs also had such notice of the existing hazard at or
about the same time as Defendant, and is thereby is barred from recovery.
AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE
56. Plaintiffs was warned of risk of exposure to use of asbestos-containing materials
and failed to take necessary or recommended precautions to prevent against the risk of injury.
AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE
57. Plaintiffs contributed to the illness, either in whole or in part, by exposure to or
the use of tobacco products and/or other substances, products, medications or drugs.
AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE
58. Plaintiffs failed to provide any timely notice to Defendant of any alleged defect
in any product which Defendant allegedly supplied or manufactured.
AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE
59. Any product sold, manufactured, marketed or distributed by Defendant 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 Defendant’s possession and control.
AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE
60. Any asbestos products sold or used by Defendant were not inherently defective,
unsafe, ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful
and were not incorrectly packaged.
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AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE
61. At the time any product left Defendant’s control, there was no practical and/or
technically feasible safer alternative design that would have prevented the harm without
substantially impairing the reasonably anticipated and intended function of that product.
AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
62. Defendant did not have a duty to test any asbestos products which it might have
sold, used or received from a third party.
AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
63. Any asbestos-containing product sold by Defendant or used in conjunction with
products sold by Defendant that may have been present at Plaintiffs’ job locations were
installed or configured on the basis of the specifications, approval or at the instruction of
governmental or legislative agencies or other regulatory bodies.
AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE
64. Any asbestos-containing product sold by Defendant or used in conjunction with
products sold by Defendant that may have been present at Plaintiffs’ job locations were
installed or configured on the basis of the specifications, approval or at the instruction
Plaintiffs’ employers.
AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE
65. To the extent that Plaintiffs alleges exposure to products manufactured by
Defendant for a government or shipyard contract, the government had a contractual right to
specify how the contract would be complied with, the government exercised that right, and
Defendant complied with those specifications.
AS AND FOR A SIXTY-FIRST SEPARATE AND COMPLETE DEFENSE
66. The damages sustained by Plaintiffs arising from his alleged exposure to
asbestos- containing products while working on or near the equipment or other product
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allegedly manufactured or sold by Defendant (the “Product”), were caused, in whole or in part,
by the 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 the Product by Defendant.
AS AND FOR A SIXTY-SECOND SEPARATE AND COMPLETE DEFENSE
67. The damages sustained by the Plaintiffs which allegedly arose from the product
were caused by its alteration, misuse and/or improper maintenance by one or more persons or
instrumentalities other than Defendant, rather than any defect in the design, manufacture,
production, assemblage, installation, testing, labeling, marketing, distribution, sale or
inspection of the product by Defendant.
AS AND FOR A SIXTY-THIRD SEPARATE AND COMPLETE DEFENSE
68. At all times and places mentioned in the Complaint, the Plaintiffs and/or other
persons used this Defendant’s products, if indeed any were used, in any unreasonable manner,
not reasonably foreseeable to this Defendant, and for a purpose for which the products were
not intended, manufactured, or designed; Plaintiffs’ injuries and damages, if any, were directly
and proximately caused by said misuse and abuse, and Plaintiffs’ recovery herein, if any is
barred or must be diminished in proportion to the fault attributable to the Plaintiffs and/or such
other parties and person.
AS AND FOR A SIXTY-FOURTH SEPARATE AND COMPLETE DEFENSE
69. “Market share” or “enterprise” liability doctrine does not apply to this action.
Defendant is not liable under any such theory.
AS AND FOR A SIXTY-FIFTH SEPARATE AND COMPLETE DEFENSE
70. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries
alleged in the Complaint.
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AS AND FOR A SIXTY-SIXTH SEPARATE AND COMPETE DEFENSE
71. Any alleged liability of Defendant must be reduced by operation of GOL § 15-
108.
AS AND FOR A SIXTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
72. Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be
found to be 50% or less of the total liability assigned to all parties liable, then Defendant’s
liability to Plaintiffs for non-economic loss shall be limited to said Defendant’s equitable
share, as determined in accordance with the relative culpability of each party causing or
contributing to the total liability for non-economic loss of Plaintiffs.
AS AND FOR A SIXTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
73. In the event that Plaintiffs succeeds in establishing that any conduct of
Defendant caused or contributed to the injuries which Plaintiffs alleges, any damages awarded
against Defendant must be reduced pro tanto by any workmen’s compensation to which the
Plaintiffs is or may be entitled under the applicable statutes.
AS AND FOR A SIXTY-NINTH SEPARATE AND COMPLETE DEFENSE
74. Upon information and belief, Plaintiffs’ economic loss, if any, as specified in §
4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral
sources, and the answering Defendant is entitled to have the Court consider the same in
determining such special damages as provided in §4545 of the CPLR.
AS AND FOR A SEVENTIETH SEPARATE AND COMPLETE DEFENSE
75. To the extent that Plaintiffs sustained injuries from the use of a product sold by
Defendant that is alleged to have contained asbestos, which is denied, Plaintiffs, Plaintiffs’
decedents, other defendants or other parties not under the control of Defendant misused,
abused, misapplied and otherwise mishandled the part of the product alleged to have been
asbestos material. Therefore, the amount of damages must be diminished by the proportion,
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which said misuse, abuse, misapplication and mishandling bears to the conduct, which
allegedly caused Plaintiffs’ damage or injury.
AS AND FOR A SEVENTY-FIRST SEPARATE AND COMPLETE DEFENSE
76. In the event it should be proven at the time of trial that all defendants are subject
to market share liability, then Defendant’s share of such liability would be of such a de minimis
amount as to make its contribution for damages negligible, and Defendant would be entitled to
contribution, either in whole or in part, and/or indemnification from co-defendants.
AS AND FOR A SEVENTY-SECOND SEPARATE AND COMPLETE DEFENSE
77. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July
31, 1986) are time-barred in that said statute is in violation of the Constitution of the United
States and the Constitution of the State of New York.
AS AND FOR A SEVENTY-THIRD SEPARATE AND COMPLETE DEFENSE
78. To the extent that Plaintiffs is unable to identify any manufacturer of any
product which allegedly caused his injuries, Plaintiffs cannot state a claim upon which relief
may be granted because that failure would violate Defendant’s constitutional rights: (1) to
substantive and procedural due process of law and equal protection guaranteed by the
Fourteenth Amendment of the United States Constitution and the New York Constitution; and
(2) protection against the taking of private property for public use without just compensation
guaranteed by the Fourteenth Amendment of the United States Constitution and by the New
York Constitution.
AS AND FOR A SEVENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
79. At all times relevant to this litigation, the agents, servants and/or employees of
Defendant utilized proper methods in the conduct of its operations, in conformity with the
available knowledge and research of the scientific, industrial and medical communities, and
thereby complied with the state of the art existing at all relevant times. In the event that any
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product manufactured or supplied by Defendant is determined to have been dangerous,
Defendant was unaware of that danger and discovery of it was beyond the state of the art at
that time.
AS AND FOR A SEVENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
80. Products or materials manufactured, designed, sold, distributed, supplied and/or
utilized by this answering Defendant were accompanied by adequate warnings which were in
conformity with the existing state of the art in regard to the foreseeable use of said products or
materials.
AS AND FOR A SEVENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
81. Defendant is not liable for the damages allegedly sustained by Plaintiffs because
Plaintiffs is not in privity of contract with Defendant at any time and the product was not
inherently dangerous.
AS AND FOR A SEVENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
82. No implied warranties, including the warranties of merchantability and fitness
for a particular purpose, became a part of the basis of the bargain in the sale of the product.
AS AND FOR A SEVENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
83. Oral warranties upon which Plaintiffs allegedly relied are unavailable as
violative of the provisions of the applicable Statute of Frauds.
AS AND FOR A SEVENTY-NINTH SEPARATE AND COMPLETE DEFENSE
84. Plaintiffs did not directly or indirectly purchase any asbestos-containing
products from Defendant and, therefore, was not the recipient of an express or implied
warranty made by Defendant.
AS AND FOR AN EIGHTIETH SEPARATE AND COMPLETE DEFENSE
85. Defendant breached no warranties, express or implied.
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AS AND FOR AN EIGHTY-FIRST SEPARATE AND COMPLETE DEFENSE
86. Any breach of warranty claim is barred by written disclaimers and exclusions on
the labels of the subject products.
AS AND FOR AN EIGHTY-SECOND SEPARATE AND COMPLETE DEFENSE
87. Plaintiffs did not reasonably and justifiably rely on any alleged representations
or warranties – express or implied.
AS AND FOR AN EIGHTY-THIRD SEPARATE AND COMPLETE DEFENSE
88. Plaintiffs’ claims if based upon the allegations of express or implied warranty
are barred because no sale of goods occurred.
AS AND FOR AN EIGHTY-FOURTH SEPARATE AND COMPLETE DEFENSE
89. Plaintiffs and all third-party beneficiaries of any warranties, express or implied,
relating to Defendant’s product or services failed to provide notice of the alleged breaches of
pursuant to the applicable provision of the Uniform Commercial Code.
AS AND FOR AN EIGHTY-FIFTH SEPARATE AND COMPLETE DEFENSE
90. The concept of strict liability does not apply to this litigation.
AS AND FOR AN EIGHTY-SIXTH SEPARATE AND COMPLETE DEFENSE
91. Defendant denies that the asbestos products alleged in Plaintiffs’ Complaint are
products within the meaning and scope of the Restatement of Torts Section 402A and as such
the Complaint fails to state a cause of action in strict liability.
AS AND FOR AN EIGHTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
92. Defendant cannot be held liable under principles of strict tort liability because
products manufactured and/or products which left Defendant’s possession did so prior to the
enactment of New York’s law regarding strict liability.
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AS AND FOR AN EIGHTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
93. Plaintiffs’ cause of action for exemplary or punitive damages is barred because
such damages are not recoverable under applicable law or otherwise unwarranted in this
action.
AS AND FOR AN EIGHTY-NINTH SEPARATE AND COMPLETE DEFENSE
94. Plaintiffs’ demands for punitive damages are barred by the due process clauses
of the Fourteenth Amendment to the United States Constitution and the New York State
Constitution.
AS AND FOR A NINETIETH SEPARATE AND COMPLETE DEFENSE
95. Plaintiffs’ demands for punitive damages are barred by the proscription of the
Eighth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution
prohibiting the imposition of excessive fines.
AS AND FOR A NINETY-FIRST SEPARATE AND COMPLETE DEFENSE
96. Plaintiffs’ demands for punitive damages are barred by the “double jeopardy”
clause of the Fifth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, and Article I, Section 6 of the New York State
Constitution.
AS AND FOR A NINETY-SECOND SEPARATE AND COMPLETE DEFENSE
97. Punitive damages cannot be awarded against this Defendant for any of the
alleged actions or omissions of any of this Defendant’s predecessors because there is not a
sufficient degree of identity between this Defendant and any of its predecessors to justify such
an award.
AS AND FOR A NINETY-THIRD SEPARATE AND COMPLETE DEFENSE
98. Defendant did not take part in and was not part of or party to any conspiracy.
16 of 22
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AS AND FOR A NINETY-FOURTH SEPARATE AND COMPLETE DEFENSE
99. Defendant did not make any misrepresentation and/or commit any fraudulent
acts.
AS AND FOR A NINETY-FIFTH SEPARATE AND COMPLETE DEFENSE
100. Defendant did not distort or cause t
Preview
FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------x MICHAEL A RUNYON, Plaintiff, Index No.: 190296/2019 -against- VERIFIED ANSWER ABB, INC., et al., Defendants. ---------------------------------------------------------------x Defendant, Velan Valve Corp. (hereinafter “Velan”), by its attorneys, Maron Marvel Bradley Anderson & Tardy LLC, for its Verified Answer to plaintiff’s Verified Complaint states as follows: 1. Velan makes no response as to the allegations contained in paragraphs “1” and “3” of the Verified Complaint as none is required. 2. Velan denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraph “2” of the Verified Complaint. 3. Velan denies each and every allegation contained in paragraphs “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, and “30” of the Verified Complaint as to defendant Velan and denies any knowledge or information sufficient to form a belief as to the allegations as to all other defendants. 4. Velan hereby further answers plaintiff’s Verified Complaint in this action by reference and incorporation of its corresponding Standard Answer filed and served pursuant to the NYCAL Case Management Order. AFFIRMATIVE DEFENSES 5. In the following defenses, the use of the term “Plaintiffs” shall be considered to include both the singular and the plural, the masculine as well as the feminine, and, where 1 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 appropriate, the Plaintiffs’ Decedent. Also, references to the “Complaint” shall, where applicable, include any amendments thereto. AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE 6. The Complaint fails to state a cause of action against Defendant. AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE 7. This Court lacks jurisdiction over the subject matter of this action. AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE 8. This Court lacks personal jurisdiction over Defendant. AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE 9. This Court is not the proper venue for this matter. AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE 10. The lawsuit was not commenced by Plaintiffs within the time prescribed by law and the Plaintiffs, therefore, is barred from recovery pursuant to applicable statutes of limitations. AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE 11. Plaintiffs’ claims are barred by the doctrine of laches. AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE 12. This action cannot be maintained, as there is another action pending for the same relief. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE 13. To the extent that any injury relating to Plaintiffs occurred in the context of an employer- employee relationship, claims for said injuries are preempted by the Workers’ Compensation Act. AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE 14. There is no justiciable issue or controversy. 2 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A TENTH SEPARATE AND COMPLETE DEFENSE 15. The claims for damages have not accrued, are purely speculative, uncertain and contingent. AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE DEFENSE 16. Plaintiffs’ claim is barred under applicable state and federal law. AS AND FOR A TWELFTH SEPARATE AND COMPLETE DEFENSE 17. To the extent Plaintiffs seeks to maintain a claim for relief on behalf of any decedent, said Plaintiffs lacks capacity and/or standing to maintain such claim for relief against Defendant. AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE 18. Plaintiffs lack the necessary standing to maintain this action. AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE 19. To the extent Plaintiffs brings suit in a representative capacity, Plaintiffs has failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate Powers and Trusts Law §5-1.1 to 5-4.6. AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE 20. Plaintiffs’ injury was not foreseeable. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE 21. 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. AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE 22. Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and indispensable parties. 3 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR AN EIGHTEENTH SEPARATE AND COMPLETE DEFENSE 23. Plaintiffs may not bring this action as Plaintiffs has failed to exhaust all of their administrative remedies. AS AND FOR A NINETEENTH SEPARATE AND COMPLETE DEFENSE 24. At all times relevant to this litigation, Defendant complied with all applicable law, regulations and standards. AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE 25. Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and waiver. AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE 26. Upon information and belief, some or all of the causes of action may not be maintained because of res judicata. AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE 27. Plaintiffs’ action is barred by the doctrine of preclusion. AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE 28. Upon information and belief, some or all of the causes of action may not be maintained because of arbitration and award. AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE 29. Upon information and belief, some or all of the causes of action may not be maintained because of discharge in bankruptcy. AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE 30. Upon information and belief, some or all of the causes of action may not be maintained because of payment. 4 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE 31. Upon information and belief, some or all of the causes of action may not be maintained because of release. AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 32. Upon information and belief, Plaintiffs has made claims concerning his alleged injuries in other matters, including but not limited to claims submitted to various trusts, which claims foreclose Plaintiffs’ claims against Defendant. AS AND FOR A TWENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 33. This Court lacks jurisdiction over Defendant by reason of improper service of process. AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE 34. The Complaint, and each purported cause of action stated therein, is ambiguous and uncertain. AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE 35. Economic and consequential damages are not properly recoverable in tort actions, including actions based on negligence or strict liability. AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE 36. Defendant asserts the defense of forum non-conveniens and reserves the right to seek dismissal of the complaint. AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE 37. If the Plaintiff is barred from recovery, the action of his/her spouse is also barred because it is a derivative action. AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE 38. If it is determined that Plaintiffs used asbestos containing products or components of these products and it is determined that said products or components were sold 5 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 by or on behalf of the United States of America, then Defendant is entitled to any sovereign or governmental immunity available to the United States of America. AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE 39. Plaintiffs voluntarily assumed the risk of injury. AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE 40. If Plaintiffs sustained damages as alleged, such damages occurred while Plaintiffs engaged in activities into which Plaintiffs 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 THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE 41. Plaintiff was a sophisticated user and was fully aware of any and all potentially dangerous conditions. AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 42. No acts or omissions of Defendant proximately caused Plaintiffs’ damages. AS AND FOR A THIRTY- EIGHTH SEPARATE AND COMPLETE DEFENSE 43. To the extent Plaintiffs was exposed to any product containing asbestos as a result of conduct by Defendant, which is denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiffs may have developed, such that Plaintiffs’ claim is not actionable at law or equity. AS AND FOR A THIRTY- NINTH SEPARATE AND COMPLETE DEFENSE 44. Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis so as to be insufficient as a matter of law to enable Plaintiffs 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. 6 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE 45. Finished or otherwise encapsulated asbestos-containing products are not unreasonably dangerous as a matter of law. AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE 46. At all times, Defendant acted reasonably and with due care toward Plaintiffs. Defendant was not negligent, reckless, did not engage in misconduct or willful misconduct and did not act with wanton disregard for the rights, safety, and position of Plaintiffs or any other person. AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE 47. The damages allegedly sustained by Plaintiffs, which Defendant denies, were not caused by any product manufactured, sold, distributed, supplied or installed by Defendant. AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE 48. The damages allegedly sustained by Plaintiffs were caused, in whole or in part, by the negligence or other culpable conduct of Plaintiffs and/or one or more persons or instrumentalities over which Defendant had no control and with whom it had no legal relationship, which conduct constituted a supervening cause of Plaintiffs’ alleged injuries. AS AND FOR AN FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE 49. The damages allegedly sustained by Plaintiffs were caused, in whole or in part, through unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of Plaintiffs’ bodily composition and consequential unforeseeable reaction to the product, if any, and/or one or more of its components, if any. AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE 50. Defendant was under no duty to warn purchasers, their employees, other independent contractors, or those under their control. If such warning was required, purchaser 7 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 or Plaintiffs’ employer owed a duty to warn and their failure to do so was a superseding proximate cause of injury. AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE 51. Defendant denies that there was any defect and/or negligence in the mining, processing, manufacture, designing, testing, investigation, fashioning, packaging, distribution, delivery, and/or sale, in any asbestos product or material referred to in Plaintiffs’ Complaint, but if there was any defect or negligence as alleged, then the Defendant is not liable as it justifiably relied upon inspection by others in the regular course of trade and business, and their failure constitutes a superseding proximate cause of any alleged injury suffered by Plaintiffs. AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 52. Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of comparative negligence. AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 53. Any damages which Plaintiffs sustained resulted solely from Plaintiffs’ own negligence. AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE 54. To the extent that Plaintiffs rely upon allegations of negligence, breach of warranty, fraudulent representation and strict products liability as against Defendant prior to September 1, 1975, the Verified Complaint fails to state a cause of action against Defendant by reason of its failure to allege the freedom of Plaintiffs from contributory negligence. Insofar as the Verified Compliant, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to the Plaintiffs, including contributory negligence and 8 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 assumption of risk, in the proportion which the culpable conduct attributable to the Plaintiffs bears on the culpable conduct which caused the damages. AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE 55. If Defendant was on notice of any hazard or defect for which Plaintiffs seeks relief, which Defendant denies, Plaintiffs also had such notice of the existing hazard at or about the same time as Defendant, and is thereby is barred from recovery. AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE 56. Plaintiffs was warned of risk of exposure to use of asbestos-containing materials and failed to take necessary or recommended precautions to prevent against the risk of injury. AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE 57. Plaintiffs contributed to the illness, either in whole or in part, by exposure to or the use of tobacco products and/or other substances, products, medications or drugs. AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE 58. Plaintiffs failed to provide any timely notice to Defendant of any alleged defect in any product which Defendant allegedly supplied or manufactured. AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE 59. Any product sold, manufactured, marketed or distributed by Defendant 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 Defendant’s possession and control. AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE 60. Any asbestos products sold or used by Defendant were not inherently defective, unsafe, ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful and were not incorrectly packaged. 9 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE 61. At the time any product left Defendant’s control, there was no practical and/or technically feasible safer alternative design that would have prevented the harm without substantially impairing the reasonably anticipated and intended function of that product. AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 62. Defendant did not have a duty to test any asbestos products which it might have sold, used or received from a third party. AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 63. Any asbestos-containing product sold by Defendant or used in conjunction with products sold by Defendant that may have been present at Plaintiffs’ job locations were installed or configured on the basis of the specifications, approval or at the instruction of governmental or legislative agencies or other regulatory bodies. AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE 64. Any asbestos-containing product sold by Defendant or used in conjunction with products sold by Defendant that may have been present at Plaintiffs’ job locations were installed or configured on the basis of the specifications, approval or at the instruction Plaintiffs’ employers. AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE 65. To the extent that Plaintiffs alleges exposure to products manufactured by Defendant for a government or shipyard contract, the government had a contractual right to specify how the contract would be complied with, the government exercised that right, and Defendant complied with those specifications. AS AND FOR A SIXTY-FIRST SEPARATE AND COMPLETE DEFENSE 66. The damages sustained by Plaintiffs arising from his alleged exposure to asbestos- containing products while working on or near the equipment or other product 10 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 allegedly manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the 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 the Product by Defendant. AS AND FOR A SIXTY-SECOND SEPARATE AND COMPLETE DEFENSE 67. The damages sustained by the Plaintiffs which allegedly arose from the product were caused by its alteration, misuse and/or improper maintenance by one or more persons or instrumentalities other than Defendant, rather than any defect in the design, manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the product by Defendant. AS AND FOR A SIXTY-THIRD SEPARATE AND COMPLETE DEFENSE 68. At all times and places mentioned in the Complaint, the Plaintiffs and/or other persons used this Defendant’s products, if indeed any were used, in any unreasonable manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended, manufactured, or designed; Plaintiffs’ injuries and damages, if any, were directly and proximately caused by said misuse and abuse, and Plaintiffs’ recovery herein, if any is barred or must be diminished in proportion to the fault attributable to the Plaintiffs and/or such other parties and person. AS AND FOR A SIXTY-FOURTH SEPARATE AND COMPLETE DEFENSE 69. “Market share” or “enterprise” liability doctrine does not apply to this action. Defendant is not liable under any such theory. AS AND FOR A SIXTY-FIFTH SEPARATE AND COMPLETE DEFENSE 70. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Complaint. 11 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A SIXTY-SIXTH SEPARATE AND COMPETE DEFENSE 71. Any alleged liability of Defendant must be reduced by operation of GOL § 15- 108. AS AND FOR A SIXTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 72. Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be found to be 50% or less of the total liability assigned to all parties liable, then Defendant’s liability to Plaintiffs for non-economic loss shall be limited to said Defendant’s equitable share, as determined in accordance with the relative culpability of each party causing or contributing to the total liability for non-economic loss of Plaintiffs. AS AND FOR A SIXTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 73. In the event that Plaintiffs succeeds in establishing that any conduct of Defendant caused or contributed to the injuries which Plaintiffs alleges, any damages awarded against Defendant must be reduced pro tanto by any workmen’s compensation to which the Plaintiffs is or may be entitled under the applicable statutes. AS AND FOR A SIXTY-NINTH SEPARATE AND COMPLETE DEFENSE 74. Upon information and belief, Plaintiffs’ economic loss, if any, as specified in § 4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral sources, and the answering Defendant is entitled to have the Court consider the same in determining such special damages as provided in §4545 of the CPLR. AS AND FOR A SEVENTIETH SEPARATE AND COMPLETE DEFENSE 75. To the extent that Plaintiffs sustained injuries from the use of a product sold by Defendant that is alleged to have contained asbestos, which is denied, Plaintiffs, Plaintiffs’ decedents, other defendants or other parties not under the control of Defendant misused, abused, misapplied and otherwise mishandled the part of the product alleged to have been asbestos material. Therefore, the amount of damages must be diminished by the proportion, 12 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 which said misuse, abuse, misapplication and mishandling bears to the conduct, which allegedly caused Plaintiffs’ damage or injury. AS AND FOR A SEVENTY-FIRST SEPARATE AND COMPLETE DEFENSE 76. In the event it should be proven at the time of trial that all defendants are subject to market share liability, then Defendant’s share of such liability would be of such a de minimis amount as to make its contribution for damages negligible, and Defendant would be entitled to contribution, either in whole or in part, and/or indemnification from co-defendants. AS AND FOR A SEVENTY-SECOND SEPARATE AND COMPLETE DEFENSE 77. All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States and the Constitution of the State of New York. AS AND FOR A SEVENTY-THIRD SEPARATE AND COMPLETE DEFENSE 78. To the extent that Plaintiffs is unable to identify any manufacturer of any product which allegedly caused his injuries, Plaintiffs cannot state a claim upon which relief may be granted because that failure would violate Defendant’s constitutional rights: (1) to substantive and procedural due process of law and equal protection guaranteed by the Fourteenth Amendment of the United States Constitution and the New York Constitution; and (2) protection against the taking of private property for public use without just compensation guaranteed by the Fourteenth Amendment of the United States Constitution and by the New York Constitution. AS AND FOR A SEVENTY-FOURTH SEPARATE AND COMPLETE DEFENSE 79. At all times relevant to this litigation, the agents, servants and/or employees of Defendant utilized proper methods in the conduct of its operations, in conformity with the available knowledge and research of the scientific, industrial and medical communities, and thereby complied with the state of the art existing at all relevant times. In the event that any 13 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 product manufactured or supplied by Defendant is determined to have been dangerous, Defendant was unaware of that danger and discovery of it was beyond the state of the art at that time. AS AND FOR A SEVENTY-FIFTH SEPARATE AND COMPLETE DEFENSE 80. Products or materials manufactured, designed, sold, distributed, supplied and/or utilized by this answering Defendant were accompanied by adequate warnings which were in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. AS AND FOR A SEVENTY-SIXTH SEPARATE AND COMPLETE DEFENSE 81. Defendant is not liable for the damages allegedly sustained by Plaintiffs because Plaintiffs is not in privity of contract with Defendant at any time and the product was not inherently dangerous. AS AND FOR A SEVENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 82. No implied warranties, including the warranties of merchantability and fitness for a particular purpose, became a part of the basis of the bargain in the sale of the product. AS AND FOR A SEVENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 83. Oral warranties upon which Plaintiffs allegedly relied are unavailable as violative of the provisions of the applicable Statute of Frauds. AS AND FOR A SEVENTY-NINTH SEPARATE AND COMPLETE DEFENSE 84. Plaintiffs did not directly or indirectly purchase any asbestos-containing products from Defendant and, therefore, was not the recipient of an express or implied warranty made by Defendant. AS AND FOR AN EIGHTIETH SEPARATE AND COMPLETE DEFENSE 85. Defendant breached no warranties, express or implied. 14 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR AN EIGHTY-FIRST SEPARATE AND COMPLETE DEFENSE 86. Any breach of warranty claim is barred by written disclaimers and exclusions on the labels of the subject products. AS AND FOR AN EIGHTY-SECOND SEPARATE AND COMPLETE DEFENSE 87. Plaintiffs did not reasonably and justifiably rely on any alleged representations or warranties – express or implied. AS AND FOR AN EIGHTY-THIRD SEPARATE AND COMPLETE DEFENSE 88. Plaintiffs’ claims if based upon the allegations of express or implied warranty are barred because no sale of goods occurred. AS AND FOR AN EIGHTY-FOURTH SEPARATE AND COMPLETE DEFENSE 89. Plaintiffs and all third-party beneficiaries of any warranties, express or implied, relating to Defendant’s product or services failed to provide notice of the alleged breaches of pursuant to the applicable provision of the Uniform Commercial Code. AS AND FOR AN EIGHTY-FIFTH SEPARATE AND COMPLETE DEFENSE 90. The concept of strict liability does not apply to this litigation. AS AND FOR AN EIGHTY-SIXTH SEPARATE AND COMPLETE DEFENSE 91. Defendant denies that the asbestos products alleged in Plaintiffs’ Complaint are products within the meaning and scope of the Restatement of Torts Section 402A and as such the Complaint fails to state a cause of action in strict liability. AS AND FOR AN EIGHTY-SEVENTH SEPARATE AND COMPLETE DEFENSE 92. Defendant cannot be held liable under principles of strict tort liability because products manufactured and/or products which left Defendant’s possession did so prior to the enactment of New York’s law regarding strict liability. 15 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR AN EIGHTY-EIGHTH SEPARATE AND COMPLETE DEFENSE 93. Plaintiffs’ cause of action for exemplary or punitive damages is barred because such damages are not recoverable under applicable law or otherwise unwarranted in this action. AS AND FOR AN EIGHTY-NINTH SEPARATE AND COMPLETE DEFENSE 94. Plaintiffs’ demands for punitive damages are barred by the due process clauses of the Fourteenth Amendment to the United States Constitution and the New York State Constitution. AS AND FOR A NINETIETH SEPARATE AND COMPLETE DEFENSE 95. Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A NINETY-FIRST SEPARATE AND COMPLETE DEFENSE 96. Plaintiffs’ demands for punitive damages are barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution. AS AND FOR A NINETY-SECOND SEPARATE AND COMPLETE DEFENSE 97. Punitive damages cannot be awarded against this Defendant for any of the alleged actions or omissions of any of this Defendant’s predecessors because there is not a sufficient degree of identity between this Defendant and any of its predecessors to justify such an award. AS AND FOR A NINETY-THIRD SEPARATE AND COMPLETE DEFENSE 98. Defendant did not take part in and was not part of or party to any conspiracy. 16 of 22 FILED: NEW YORK COUNTY CLERK 01/08/2020 10:33 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/08/2020 AS AND FOR A NINETY-FOURTH SEPARATE AND COMPLETE DEFENSE 99. Defendant did not make any misrepresentation and/or commit any fraudulent acts. AS AND FOR A NINETY-FIFTH SEPARATE AND COMPLETE DEFENSE 100. Defendant did not distort or cause t