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FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: NEW YORK CITY
ASBESTOS LITIGATION
MICHAEL A. RUNYON '
Index No.: 190296/2019
Plaintiff(s),
-against- VERIFIED ANSWER ON
BEHALFOFDEFENDANT
and as successor in interest to ITE
hWASAU MOTORS
ABB, INC., Individually
CORP., U.S.A.
CIRCUIT BREAKERS, INC.,etal.,
Defendant(s).
Defendant, KAWASAKI MOTORS CORP., U.S.A., (erroneously sued herein as
"Kawasaki Motors Corporation"), by its attorneys, GOLDBERG SEGALLA LLP, for itsverified
answer to the summons and verified complaint ("Complaint") herein states:
1. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23,
24, 25, 26, 27, 28, 29 and 30 of the Complaint.
2. Denies each and every allegation contained in paragraph 21 of the Complaint in
so far as they pertain to KAWASAKI MOTORS CORP., U.S.A. ("Defendant").
3. With respect to the allegations set forth in unnumbered paragraph of the
which incorporates reference NYCAL - Weitz & P.C. Standard
Complaint, by Luxenberg,
Asbestos Complaint for Personal Injury No. 7 (hereinafter "Standard Complaint"), KAWASAKI
MOTORS CORP., U.S.A. responds as follows:
4. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 1, 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, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49,
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50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75,
76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100,
101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119,
120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138,
139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156 and 157
of the Standard Complaint.
5. The allegation contained in paragraph 2 of the Standard Complaint does not
require a response, but to the extent a response is required, it is denied as to KAWASAKI
MOTORS CORP., U.S.A.
6. Denies each and every allegation contained in paragraph 3 of the Standard
Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies
knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
they pertain to other defendants.
AS TO THE FIRST CAUSE OF ACTION
7. With respect to paragraph 158 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 157 of the Standard Complaint as if fully set forth herein.
8. Denies each and every allegation contained in paragraphs 159, 160, 161, 162,
163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 and 177 of the Standard
Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies
knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
they pertain to other defendants, and respectfully refers all questions of law to the Court.
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AS TO THE SECOND CAUSE OF ACTION
9. With respect to paragraph 178 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 177 of the Standard Complaint as if fully set forth herein.
10. Denies each and every allegation contained in paragraphs 179, 180, 181, and 183
of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A.,
and denies knowledge or information sufficient to form a belief as to the truth of those
allegations insofar as they pertain to other defendants, and respectfully refers all questions of law
to the Court.
11. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 182 of the Standard Complaint.
AS TO THE THIRD CAUSE OF ACTION
12. With respect to paragraph 184 of the Standard Complaint KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 183 of the Standard Complaint as if fully set forth herein.
13. Denies each and every allegation contained in paragraphs 185, 186, 187, 189,
190, 191 and 193 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS
CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of
those allegations insofar as they pertain to other defendants, and respectfully refers all questions
of law to the Court.
14. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 188 and 192 of the Standard Complaint, and respectfully refers all
questions of law to the Court.
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AS TO THE FOURTH CAUSE OF ACTION
15. With respect to paragraph 194 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 193 of the Standard Complaint as if fully set forth herein.
16. Denies each and every allegation contained in paragraphs 195, 197, 198, 199,
200, 201, including subsections (7)(8)(10)(11), 202 and 204 of the Standard Complaint insofar as
they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information
sufficient to form a belief as to the truth of those allegations insofar as they pertain to other
defendants, and respectfully refers all questions of law to the Court.
17. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 196 of the Standard Complaint, and respectfully refers all questions of
law to the Court.
18. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 203 of the Standard Complaint.
AS TO THE FIFTH CAUSE OF ACTION
19. With respect to paragraph 205 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 204 of the Standard Complaint as if fully set forth herein.
20. Denies each and every allegation contained in paragraphs 206, 207, 209, 210,
211, 212, 213, 214, 215, including subsections (a)(b)(c)(d)(e), 216, 217, 218, 219, 220, 221 and
223 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP.,
U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those
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allegations insofar as they pertain to other defendants, and refers all questions of law
respectfully
to the Court.
21. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs 208 and 222 of the Standard Complaint.
AS TO THE SIXTH CAUSE OF ACTION
22. With respect to paragraph 224 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 223 of the Standard Complaint as if fully set forth herein.
23. The allegations contained in paragraphs 225, 226, 227, 228, 229, 230, 231 and
232 of the Standard Complaint pertain to other parties and, therefore, do not require a response,
but to the extent a response is required, these allegations are denied as to KAWASAKI
MOTORS CORP., U.S.A.
AS TO THE SEVENTH CAUSE OF ACTION
24. With respect to paragraph 233 of the Standard Complaint, KAWASAKI
MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs
1 through 232 of the Standard Complaint as if fully set forth herein.
25. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 234 of the Standard Complaint.
26. Denies each and every allegation contained in paragraph 235 of the Standard
Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies
knowledge or information sufficient to form a belief as to the truth of those allegations insofar as
they pertain to other defendants, and respectfully refers all questions of law to the Court.
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27. KAWASAKI MOTORS CORP., U.S.A. denies all other allegations not otherwise
admitted or denied
AFFIRMATIVE DEFENSES
First Affirmative Defense
28. Plaintiff's Complaint fails to states grounds for specific jurisdiction in this matter.
Second Affirmative Defense
29. Plaintiff's Complaint fails to states grounds for general jurisdiction in this matter.
Third Affirmative Defense
30. Plaintiff's Complaint fails to states grounds for personal jurisdiction in this
matter.
Fourth Affirmative Defense
31. Plaintiff's Complaint fails to state a claim upon which relief may be granted.
Fifth Affirmative Defense
32. Plaintiff's Complaint is barred by the applicable statute of repose or statute of
limitations.
Sixth Affirmative Defense
33. Any claim or cause of action Plaintiff may have is barred, in whole or in part, by
the doctrines of laches, waiver, collateral estoppel, and/or res judicata.
Seventh Affirmative Defense
34. Plaintiff failed to plead the claims of fraud and conspiracy with proper specificity
and, as such, all claims premised on fraud and/or conspiracy must be dismissed.
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Eighth Affirmative Defense
35. The injuries and/or illnesses to Michael A. Runyon ("plaintiff"), if any, are
Workers'
governed by the applicable Compensation statutes and shall have constituted an
industrial disability and Plaintiff's exclusive remedy, if any, shall lie within the terms and ambit
of said statute.
Ninth Affirmative Defense
36. Plaintiff's claims and causes of action against Defendant are barred, in whole or
in part, because Defendant owed no legal duty to Plaintiff or, ifit owed such a legal duty, it did
not breach such duty.
Tenth Affirmative Defense
37. The injuries allegedly sustained by Plaintiff, if any, were proximately caused by
Plaintiff's free and voluntary acts of knowingly and voluntarily placing himself in a position of
danger and thus assuming the risks ordinary incident to such acts.
Eleventh Affirmative Defense
38. The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out
of the risks, hazards, and dangers incident to the occupation of Plaintiff all of which were open,
obvious and well known to Plaintiff, and the action is barred by Plaintiff's assumption of the
risks thereof.
Twelfth Affirmative Defense
39. This action is barred, in whole or in part, by the misuse, abuse, or substantial
modification of the product.
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Thirteenth Affirmative Defense
40. The negligent acts or omissions of Plaintiff were the sole proximate cause or
proximate contributing cause of the injuries and damages of which Plaintiff complains.
Affi--.—
Fourteenth iaw've Defense
41. Plaintiff contributed to his illness, either in whole or in part, by the use of other
substances, products, medications and drugs. To the extent that Plaintiff used any tobacco
products, any damage~ awarded should be reduced in whole or in part by the amount of his
damages caused by smoking.
Fifteenth Affirmative Defense
42. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or
contributed to by the fault, neglect, and want of care on the part of Plaintiff or of others for
whose acts or omissions or breach of legal duty Defendant is not liable.
I
Sixteenth Affirmative Defense
43. Plaintiffs alleged d~nages were negligently caused in whole or in part by
persons, firms, corporations, or entities other than those parties before this Court and such
negligence either bars or comparatively reduces any possible recovery by Plaintiff.
Seventeenth Affirmative Defense
44. Insofar as the Complaint 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 Pl+'>tiff; including
contributory negligence and assumption of risk, in the proportion which the culpable conduct
attributable to Plaintiff bear to the culpable conduct which caused the damages.
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~Ei hteenth Affirmative Defense
45. If Plaintiff suffered damages as a result of the allegations set forth in the
Complaint, which is denied, then those ua.—.iageswere the result of intervening or superseding
acts or omissions of persons other than the Defendant.
Nineteenth Affirmative Defense
46. If Plaintiff suffered injuries as a proximate result of a condition of Defendant's
products, which is denied, any of Defendant's products would have been supplied to an employer
of Plaintiff. Such employer was a knowledgeable and sophisticated user of said products, and
thus Defendant had no further legal duty to warn or instruct Plaintiff.
Twentieth Affirmative Defense
47. If any of the allegations of Plaintiff with respect to the defective condition of
asbestos or asbestos-cont~imng products are proven, then Plaintiff is barred from any recovery
due to the fact that at all relevant times there was no known substitute for asbestos or asbestos-
containing products.
Twen -First Affirmative Defense
48. The state of the medical and scientific knowledge at all relevant times was such
that Defendant neither knew nor could have known that its asbestos-cont~inin~ products
presented a foreseeable risk of harm to any person in the normal and expected use of those
products.
d~Sd
49. To the extent that Defendant conformed to the scientific knowledge and research
data available throughout the industry and scientific community, Defendant shall have fulfilled
its obligations, ifany, herein, and Plaintiff s claims shall be barred, in whole or in part.
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Twenty-Third Affirmative Defense
50. If Plaintiff sustained injuries as a result of exposure to any product manufactured
by Defendant, the degree of such damage attributable to Defendant's product is negligible, and
hence, de minimis.
Twenty-Fourth Affirmative Defense
51. Defendant cannot be held jointly and severally liable for acts or omissions of
other defendants because the acts and omissions of those other defendants were separate and
distinct and the alleged harm caused by each defendant is divisible.
Twenty-Fifth Affirmative Defense
52. Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties,
fraudulent representations, and violations of obligations of strict product liability as against
Defendant prior to September 1, 1975, said causes of action fail to state facts sufficient to
constitute causes of action by reason of the failure to allege the freedom of Plaintiff from
contributory negligence or fault; and that if Plaintiff sustained the injuries, losses, and other
damages complained of in the Complaint, they were caused and brought about, in whole or in
part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of
Plaintiff.
Twenty-Sixth Affirmative Defense
53. To the extent that Plaintiff alleges rights assertedly derived from oral warranties
or undertakings on the part of Defendant, the Complaint is barred by the applicable statute of
frauds.
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Twenty-Seventh Affirmative Defense
54. To the extent Plaintiff alleges a cause of action for express and/or implied
warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason
of the failure to allege privity of contract and/or privity of warrañties between Plaintiff and
Defendant.
Twenty-Eighth Affirmative Defense
55. To the extent that any breach of warranty is alleged, Plaintiff failed to give proper
and prompt notice of any such breach to Defendant.
Twenty-Ninth Affirmative Defense
56. Plaintiff did not directly or indirectly purchase any asbestos-containing products
or materials from Defendant, and Plaintiff neither received nor relied upon any representation or
warranty allegedly made by Defendant.
Thirtieth Affirmative Defense
57. The action cannot proceed in the absence of all parties who should be named in
accordance with New York CPLR § 1001.
Thirty-First Affirmative Defense
58. The recoverable damages, if any, should be diminished under the collateral source
rule set forth in New York CPLR § 4545.
Thirty-Second Affirmative Defense
59. To the extent that Plaintiff may recover damages from Defendant, Defendant is
entitled to indemnification and/or contribution, in whole or in part, from each of the other
defendants in this action.
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Thirty-Third Affirmative Defense
60. If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New
York CPLR Article 16, it shall only be liable for its equitable share of Plaintiffs recovery since
any liability which will be found against it will be insufficient to impose joint liability.
Thirty-Fourth Affirmative Defense
61. Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for
non-economic loss shall not exceed its equitable share of liability.
Thirty-Fifth Affirmative Defense
62. To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct
that was not actionable at the time it occurred, Plaintiffs claims violate Defendant's right to be
free from ex post facto laws and Defendant's procedural and substantive due process rights under
the Constitution of the United States.
Thirty-Sixth Affirmative Defense
63. Any claim for exemplary and/or punitive damages is barred because such
damages are not recoverable or warranted in this action.
Thirty-Seventh Affirmative Defense
64. The imposition of punitive damages on the facts alleged in the Complaint is
barred by the United States Constitution and the Constitution of the State of New York.
Thirty-Eighth Affirmative Defense
65. Plaintiffs claim for punitive damages cannot be sustained because it would
violate Defendant's rights under the Constitutions of the United States and the State of New
York, including, but not limited to:
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(a) Defendant's procedural and substantive due process rights and equal protection
rights under the Fifth and Fourteenth Amendments of the United States
Constitution and under cognate provisions of the New York Constitution;
(b) Defendant's rights under the double jeopardy clauses of the Fifth Amendment of
the United States Constitution and Article I, Section 6 of the New York State
Constitution;
(c) Defendant's rights to protection from "excessive fines" as provided in the
Constitutions of the United States and the State of New York.
Thirty-Ninth Affirmative Defense
66. The law of New York and the Due Process Clause of the Fourteenth Amendment
and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing
Defendant simply for lawfully selling a legal product.
Fortieth Affirmative Defense
67. Punitive damages are inappropriate to serve deterrence and punishment objectives
because those will be fully served by past and future liability for the same conduct at issue in this
case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to
punish Defendant, except to the extent the alleged conduct has had an impact in this State.
Forty-First Affirmative Defense
68. All defenses which have been or will be asserted by other defendants and/or third-
party defendants in this action are adopted and incorporated herein by reference as if fully set
forth at length as defenses to Plaintiff's Complaint. In addition, Defendant will rely upon any and
all other further defenses which become available or appear during discovery proceedings in this
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action and hereby specifically reserves the right to amend its Answer for purposes of asserting
further additional defenses.
Forty-Second Affirmative Defense
69. That to the extent that the cause pleaded by Plaintiff herein fails to accord with
the Uniform Commercial Code, including, but not limited to §2-725 thereof, Plaintiff's
Complaint is barred.
Forty-Third Affirmative Defense
70. That to the extent that any of the products for which liability is charged herein to
KAWASAKI MOTORSCORP., U.S.A., which is specifically denied, were modified, assembled,
altered, quantified or in any way materially varied, which same may be casually related to the
claims of Plaintiff, the actions of Plaintiff are barred herein.
Forty-Fourth Affirmative Defense
71. That to the extent that the use, application, employment, surrounding conditions,
safety precautions and other circumstances attendant upon the material allegedly used by
Plaintiff were determined, controlled, selected or limited by his employer or by others for whose
acts, omissions or breach KAWASAKI MOTORS CORP., U.S.A. is not liable, the Complaint is
barred, in whole or in part.
Forty-Fifth Affirmative Defense
72. If Plaintiff used any products for which KAWASAKI MOTORS CORP., U.S.A.
is responsible, which is denied, upon information and belief, KAWASAKI MOTORS CORP.,
U.S.A. alleges that said products were used improperly, and without proper safety protection,
which was available from Plaintiff's employer(s).
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Forty-Sixth Affirmative Defense
73. At all times material hereto, the state of the medical and industrial art was such
that there was no generally accepted or recognized knowledge of any unavoidable unsafe,
inherently dangerous or hazardous character or nature of products containing asbestos when used
in the manner and purpose described by Plaintiff on behalf of Plaintiff, therefore, there was no
duty for KAWASAKI MOTORS CORP., U.S.A. to know of such character or nature or to warn
Plaintiff or others similarly situated.
Forty-Seventh Affirmative Defense
74. Upon information and belief, the incident complained of in the Complaint and the
alleged damages were caused by the culpable conduct of the remaining parties to this action. By
reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR.
Forty-Eighth Affirmative Defense
75. That in the event there has been a settlement between Plaintiff and any joint
tortfeasor, then defendant hereby pleads and seeks the full benefit of §15-108 of the General
Obligations Law, that Plaintiff's claim against this answering defendant be reduced to the fullest
extent permitted by §15-108 of the General Obligations Law.
Forty-Ninth Affirmative Defense
76. Plaintiff does not have the legal capacity to sue and therefore does not have
standing to commence or maintain this action.
Fiftieth Affirmative Defense
77. This action is barred by the doctrine ofjudicial estoppel.
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Fifty-First Affirmative Defense
78. Upon information and belief, this Court lacks in personam jurisdiction in this
matter by reason ofimproper service of process.
Fifty-Second Affirmative Defense
79. Upon information and belief, this Court lacks subject matter jurisdiction.
Fifty-Third Affirmative Defense
80. Upon information and belief, this Court lacks in personam jurisdiction.
Fifty-Fourth Affirmative Defense
81. The action should be dismissed because the forum for this matter is improper.
Fifty-Fifth Affirmative Defense
82. Pursuant to CPLR 503, the action should be dismissed because of improper
venue.
Fifty-Sixth Affirmative Defense
83. KAWASAKI MOTORS CORP., U.S.A. did not own, control, manufacture or
distribute any alleged product to which Plaintiff claims that Plaintiff was exposed.
Fifty-Seventh Affirmative Defense
84. KAWASAKI MOTORS CORP., U.S.A. did not assume any liability for any
entity that may have produced products to which Plaintiff claims that Plaintiff was exposed.
Fifty-Eighth Affirmative Defense
85. KAWASAKI MOTORS CORP., U.S.A. denies that Plaintiff had any exposure to
any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned,
packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by
KAWASAKI MOTORS CORP., U.S.A., and more particularly denies upon information and
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belief that KAWASAKI MOTORS CORP., U.S.A., mined, processed, manufactured, supplied,
developed, tested, fashioned, packaged, delivered, sold and/or otherwise placed in the stream of
commerce any asbestos-containing product at the times and upon the dates alleged in the
Complaint herein.
Fifty-Ninth Affirmative Defense
86. KAWASAKI MOTORS CORP., U.S.A. denies specifically that, during the
periods of exposure alleged in the Complaint by Plaintiff, it mined, processed, manufactured,
designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or
otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos
products to which Plaintiff was caused to come into contact and which Plaintiff was caused to
breathe, inhale and digest and which thereby caused Plaintiff's injuries and resulting damages
alleged in the Complaint herein.
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FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY ASBESTOS LITIGATION MICHAEL A. RUNYON ' Index No.: 190296/2019 Plaintiff(s), -against- VERIFIED ANSWER ON BEHALFOFDEFENDANT and as successor in interest to ITE hWASAU MOTORS ABB, INC., Individually CORP., U.S.A. CIRCUIT BREAKERS, INC.,etal., Defendant(s). Defendant, KAWASAKI MOTORS CORP., U.S.A., (erroneously sued herein as "Kawasaki Motors Corporation"), by its attorneys, GOLDBERG SEGALLA LLP, for itsverified answer to the summons and verified complaint ("Complaint") herein states: 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the Complaint. 2. Denies each and every allegation contained in paragraph 21 of the Complaint in so far as they pertain to KAWASAKI MOTORS CORP., U.S.A. ("Defendant"). 3. With respect to the allegations set forth in unnumbered paragraph of the which incorporates reference NYCAL - Weitz & P.C. Standard Complaint, by Luxenberg, Asbestos Complaint for Personal Injury No. 7 (hereinafter "Standard Complaint"), KAWASAKI MOTORS CORP., U.S.A. responds as follows: 4. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 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, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 1 24993036.v3 24993036.v4 1 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156 and 157 of the Standard Complaint. 5. The allegation contained in paragraph 2 of the Standard Complaint does not require a response, but to the extent a response is required, it is denied as to KAWASAKI MOTORS CORP., U.S.A. 6. Denies each and every allegation contained in paragraph 3 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants. AS TO THE FIRST CAUSE OF ACTION 7. With respect to paragraph 158 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 157 of the Standard Complaint as if fully set forth herein. 8. Denies each and every allegation contained in paragraphs 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 and 177 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 2 24993036.v3 24993036.v4 2 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 AS TO THE SECOND CAUSE OF ACTION 9. With respect to paragraph 178 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 177 of the Standard Complaint as if fully set forth herein. 10. Denies each and every allegation contained in paragraphs 179, 180, 181, and 183 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 11. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 182 of the Standard Complaint. AS TO THE THIRD CAUSE OF ACTION 12. With respect to paragraph 184 of the Standard Complaint KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 183 of the Standard Complaint as if fully set forth herein. 13. Denies each and every allegation contained in paragraphs 185, 186, 187, 189, 190, 191 and 193 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 14. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 188 and 192 of the Standard Complaint, and respectfully refers all questions of law to the Court. 3 24993036.v3 24993036.v4 3 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 AS TO THE FOURTH CAUSE OF ACTION 15. With respect to paragraph 194 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 193 of the Standard Complaint as if fully set forth herein. 16. Denies each and every allegation contained in paragraphs 195, 197, 198, 199, 200, 201, including subsections (7)(8)(10)(11), 202 and 204 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 17. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 196 of the Standard Complaint, and respectfully refers all questions of law to the Court. 18. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 203 of the Standard Complaint. AS TO THE FIFTH CAUSE OF ACTION 19. With respect to paragraph 205 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 204 of the Standard Complaint as if fully set forth herein. 20. Denies each and every allegation contained in paragraphs 206, 207, 209, 210, 211, 212, 213, 214, 215, including subsections (a)(b)(c)(d)(e), 216, 217, 218, 219, 220, 221 and 223 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those 4 24993036.v3 24993036.v4 4 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 allegations insofar as they pertain to other defendants, and refers all questions of law respectfully to the Court. 21. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 208 and 222 of the Standard Complaint. AS TO THE SIXTH CAUSE OF ACTION 22. With respect to paragraph 224 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 223 of the Standard Complaint as if fully set forth herein. 23. The allegations contained in paragraphs 225, 226, 227, 228, 229, 230, 231 and 232 of the Standard Complaint pertain to other parties and, therefore, do not require a response, but to the extent a response is required, these allegations are denied as to KAWASAKI MOTORS CORP., U.S.A. AS TO THE SEVENTH CAUSE OF ACTION 24. With respect to paragraph 233 of the Standard Complaint, KAWASAKI MOTORS CORP., U.S.A. repeats, reiterates and realleges each and every response to paragraphs 1 through 232 of the Standard Complaint as if fully set forth herein. 25. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 234 of the Standard Complaint. 26. Denies each and every allegation contained in paragraph 235 of the Standard Complaint insofar as they pertain to KAWASAKI MOTORS CORP., U.S.A., and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to other defendants, and respectfully refers all questions of law to the Court. 5 24993036.v3 24993036.v4 5 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 27. KAWASAKI MOTORS CORP., U.S.A. denies all other allegations not otherwise admitted or denied AFFIRMATIVE DEFENSES First Affirmative Defense 28. Plaintiff's Complaint fails to states grounds for specific jurisdiction in this matter. Second Affirmative Defense 29. Plaintiff's Complaint fails to states grounds for general jurisdiction in this matter. Third Affirmative Defense 30. Plaintiff's Complaint fails to states grounds for personal jurisdiction in this matter. Fourth Affirmative Defense 31. Plaintiff's Complaint fails to state a claim upon which relief may be granted. Fifth Affirmative Defense 32. Plaintiff's Complaint is barred by the applicable statute of repose or statute of limitations. Sixth Affirmative Defense 33. Any claim or cause of action Plaintiff may have is barred, in whole or in part, by the doctrines of laches, waiver, collateral estoppel, and/or res judicata. Seventh Affirmative Defense 34. Plaintiff failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and/or conspiracy must be dismissed. 6 24993036.v3 24993036.v4 6 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Eighth Affirmative Defense 35. The injuries and/or illnesses to Michael A. Runyon ("plaintiff"), if any, are Workers' governed by the applicable Compensation statutes and shall have constituted an industrial disability and Plaintiff's exclusive remedy, if any, shall lie within the terms and ambit of said statute. Ninth Affirmative Defense 36. Plaintiff's claims and causes of action against Defendant are barred, in whole or in part, because Defendant owed no legal duty to Plaintiff or, ifit owed such a legal duty, it did not breach such duty. Tenth Affirmative Defense 37. The injuries allegedly sustained by Plaintiff, if any, were proximately caused by Plaintiff's free and voluntary acts of knowingly and voluntarily placing himself in a position of danger and thus assuming the risks ordinary incident to such acts. Eleventh Affirmative Defense 38. The injuries allegedly sustained by Plaintiff, if any, arose in whole or in part out of the risks, hazards, and dangers incident to the occupation of Plaintiff all of which were open, obvious and well known to Plaintiff, and the action is barred by Plaintiff's assumption of the risks thereof. Twelfth Affirmative Defense 39. This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. 7 24993036.v3 24993036.v4 7 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Thirteenth Affirmative Defense 40. The negligent acts or omissions of Plaintiff were the sole proximate cause or proximate contributing cause of the injuries and damages of which Plaintiff complains. Affi--.— Fourteenth iaw've Defense 41. Plaintiff contributed to his illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff used any tobacco products, any damage~ awarded should be reduced in whole or in part by the amount of his damages caused by smoking. Fifteenth Affirmative Defense 42. That the injuries and/or illnesses, if any, sustained by Plaintiff were caused or contributed to by the fault, neglect, and want of care on the part of Plaintiff or of others for whose acts or omissions or breach of legal duty Defendant is not liable. I Sixteenth Affirmative Defense 43. Plaintiffs alleged d~nages were negligently caused in whole or in part by persons, firms, corporations, or entities other than those parties before this Court and such negligence either bars or comparatively reduces any possible recovery by Plaintiff. Seventeenth Affirmative Defense 44. Insofar as the Complaint 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 Pl+'>tiff; including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bear to the culpable conduct which caused the damages. 8 24993036.v3 24993036.v4 8 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 ~Ei hteenth Affirmative Defense 45. If Plaintiff suffered damages as a result of the allegations set forth in the Complaint, which is denied, then those ua.—.iageswere the result of intervening or superseding acts or omissions of persons other than the Defendant. Nineteenth Affirmative Defense 46. If Plaintiff suffered injuries as a proximate result of a condition of Defendant's products, which is denied, any of Defendant's products would have been supplied to an employer of Plaintiff. Such employer was a knowledgeable and sophisticated user of said products, and thus Defendant had no further legal duty to warn or instruct Plaintiff. Twentieth Affirmative Defense 47. If any of the allegations of Plaintiff with respect to the defective condition of asbestos or asbestos-cont~imng products are proven, then Plaintiff is barred from any recovery due to the fact that at all relevant times there was no known substitute for asbestos or asbestos- containing products. Twen -First Affirmative Defense 48. The state of the medical and scientific knowledge at all relevant times was such that Defendant neither knew nor could have known that its asbestos-cont~inin~ products presented a foreseeable risk of harm to any person in the normal and expected use of those products. d~Sd 49. To the extent that Defendant conformed to the scientific knowledge and research data available throughout the industry and scientific community, Defendant shall have fulfilled its obligations, ifany, herein, and Plaintiff s claims shall be barred, in whole or in part. 9 24993036.v3 24993036.v4 9 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Twenty-Third Affirmative Defense 50. If Plaintiff sustained injuries as a result of exposure to any product manufactured by Defendant, the degree of such damage attributable to Defendant's product is negligible, and hence, de minimis. Twenty-Fourth Affirmative Defense 51. Defendant cannot be held jointly and severally liable for acts or omissions of other defendants because the acts and omissions of those other defendants were separate and distinct and the alleged harm caused by each defendant is divisible. Twenty-Fifth Affirmative Defense 52. Insofar as Plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent representations, and violations of obligations of strict product liability as against Defendant prior to September 1, 1975, said causes of action fail to state facts sufficient to constitute causes of action by reason of the failure to allege the freedom of Plaintiff from contributory negligence or fault; and that if Plaintiff sustained the injuries, losses, and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of Plaintiff. Twenty-Sixth Affirmative Defense 53. To the extent that Plaintiff alleges rights assertedly derived from oral warranties or undertakings on the part of Defendant, the Complaint is barred by the applicable statute of frauds. 10 24993036.v3 24993036.v4 10 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Twenty-Seventh Affirmative Defense 54. To the extent Plaintiff alleges a cause of action for express and/or implied warranties and the alleged breaches thereof, such cause of action is legally insufficient by reason of the failure to allege privity of contract and/or privity of warrañties between Plaintiff and Defendant. Twenty-Eighth Affirmative Defense 55. To the extent that any breach of warranty is alleged, Plaintiff failed to give proper and prompt notice of any such breach to Defendant. Twenty-Ninth Affirmative Defense 56. Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from Defendant, and Plaintiff neither received nor relied upon any representation or warranty allegedly made by Defendant. Thirtieth Affirmative Defense 57. The action cannot proceed in the absence of all parties who should be named in accordance with New York CPLR § 1001. Thirty-First Affirmative Defense 58. The recoverable damages, if any, should be diminished under the collateral source rule set forth in New York CPLR § 4545. Thirty-Second Affirmative Defense 59. To the extent that Plaintiff may recover damages from Defendant, Defendant is entitled to indemnification and/or contribution, in whole or in part, from each of the other defendants in this action. 11 24993036.v3 24993036.v4 11 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Thirty-Third Affirmative Defense 60. If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR Article 16, it shall only be liable for its equitable share of Plaintiffs recovery since any liability which will be found against it will be insufficient to impose joint liability. Thirty-Fourth Affirmative Defense 61. Pursuant to New York CPLR Article 16, the liability, if any, of Defendant for non-economic loss shall not exceed its equitable share of liability. Thirty-Fifth Affirmative Defense 62. To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct that was not actionable at the time it occurred, Plaintiffs claims violate Defendant's right to be free from ex post facto laws and Defendant's procedural and substantive due process rights under the Constitution of the United States. Thirty-Sixth Affirmative Defense 63. Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-Seventh Affirmative Defense 64. The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and the Constitution of the State of New York. Thirty-Eighth Affirmative Defense 65. Plaintiffs claim for punitive damages cannot be sustained because it would violate Defendant's rights under the Constitutions of the United States and the State of New York, including, but not limited to: 12 24993036.v3 24993036.v4 12 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 (a) Defendant's procedural and substantive due process rights and equal protection rights under the Fifth and Fourteenth Amendments of the United States Constitution and under cognate provisions of the New York Constitution; (b) Defendant's rights under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I, Section 6 of the New York State Constitution; (c) Defendant's rights to protection from "excessive fines" as provided in the Constitutions of the United States and the State of New York. Thirty-Ninth Affirmative Defense 66. The law of New York and the Due Process Clause of the Fourteenth Amendment and the Supremacy Clause of Article VI of the United States Constitutions forbid punishing Defendant simply for lawfully selling a legal product. Fortieth Affirmative Defense 67. Punitive damages are inappropriate to serve deterrence and punishment objectives because those will be fully served by past and future liability for the same conduct at issue in this case. Moreover, considerations of due process, comity, and state sovereignty bar any attempts to punish Defendant, except to the extent the alleged conduct has had an impact in this State. Forty-First Affirmative Defense 68. All defenses which have been or will be asserted by other defendants and/or third- party defendants in this action are adopted and incorporated herein by reference as if fully set forth at length as defenses to Plaintiff's Complaint. In addition, Defendant will rely upon any and all other further defenses which become available or appear during discovery proceedings in this 13 24993036.v3 24993036.v4 13 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. Forty-Second Affirmative Defense 69. That to the extent that the cause pleaded by Plaintiff herein fails to accord with the Uniform Commercial Code, including, but not limited to §2-725 thereof, Plaintiff's Complaint is barred. Forty-Third Affirmative Defense 70. That to the extent that any of the products for which liability is charged herein to KAWASAKI MOTORSCORP., U.S.A., which is specifically denied, were modified, assembled, altered, quantified or in any way materially varied, which same may be casually related to the claims of Plaintiff, the actions of Plaintiff are barred herein. Forty-Fourth Affirmative Defense 71. That to the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the material allegedly used by Plaintiff were determined, controlled, selected or limited by his employer or by others for whose acts, omissions or breach KAWASAKI MOTORS CORP., U.S.A. is not liable, the Complaint is barred, in whole or in part. Forty-Fifth Affirmative Defense 72. If Plaintiff used any products for which KAWASAKI MOTORS CORP., U.S.A. is responsible, which is denied, upon information and belief, KAWASAKI MOTORS CORP., U.S.A. alleges that said products were used improperly, and without proper safety protection, which was available from Plaintiff's employer(s). 14 24993036.v3 24993036.v4 14 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Forty-Sixth Affirmative Defense 73. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and purpose described by Plaintiff on behalf of Plaintiff, therefore, there was no duty for KAWASAKI MOTORS CORP., U.S.A. to know of such character or nature or to warn Plaintiff or others similarly situated. Forty-Seventh Affirmative Defense 74. Upon information and belief, the incident complained of in the Complaint and the alleged damages were caused by the culpable conduct of the remaining parties to this action. By reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR. Forty-Eighth Affirmative Defense 75. That in the event there has been a settlement between Plaintiff and any joint tortfeasor, then defendant hereby pleads and seeks the full benefit of §15-108 of the General Obligations Law, that Plaintiff's claim against this answering defendant be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. Forty-Ninth Affirmative Defense 76. Plaintiff does not have the legal capacity to sue and therefore does not have standing to commence or maintain this action. Fiftieth Affirmative Defense 77. This action is barred by the doctrine ofjudicial estoppel. 15 24993036.v3 24993036.v4 15 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 Fifty-First Affirmative Defense 78. Upon information and belief, this Court lacks in personam jurisdiction in this matter by reason ofimproper service of process. Fifty-Second Affirmative Defense 79. Upon information and belief, this Court lacks subject matter jurisdiction. Fifty-Third Affirmative Defense 80. Upon information and belief, this Court lacks in personam jurisdiction. Fifty-Fourth Affirmative Defense 81. The action should be dismissed because the forum for this matter is improper. Fifty-Fifth Affirmative Defense 82. Pursuant to CPLR 503, the action should be dismissed because of improper venue. Fifty-Sixth Affirmative Defense 83. KAWASAKI MOTORS CORP., U.S.A. did not own, control, manufacture or distribute any alleged product to which Plaintiff claims that Plaintiff was exposed. Fifty-Seventh Affirmative Defense 84. KAWASAKI MOTORS CORP., U.S.A. did not assume any liability for any entity that may have produced products to which Plaintiff claims that Plaintiff was exposed. Fifty-Eighth Affirmative Defense 85. KAWASAKI MOTORS CORP., U.S.A. denies that Plaintiff had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by KAWASAKI MOTORS CORP., U.S.A., and more particularly denies upon information and 16 24993036.v3 24993036.v4 16 of 21 FILED: NEW YORK COUNTY CLERK 01/21/2020 06:03 PM INDEX NO. 190296/2019 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/21/2020 belief that KAWASAKI MOTORS CORP., U.S.A., mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, delivered, sold and/or otherwise placed in the stream of commerce any asbestos-containing product at the times and upon the dates alleged in the Complaint herein. Fifty-Ninth Affirmative Defense 86. KAWASAKI MOTORS CORP., U.S.A. denies specifically that, during the periods of exposure alleged in the Complaint by Plaintiff, it mined, processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which Plaintiff was caused to come into contact and which Plaintiff was caused to breathe, inhale and digest and which thereby caused Plaintiff's injuries and resulting damages alleged in the Complaint herein.