Preview
FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
--------------------------------------------------------------x
This Document Relates To:
Index No. 802542/2019
JOSEPHINE E. McCLURE,
Plaintiff,
VERIFIED ANSWER
vs.
CBS CORPORATION, et al.,
Defendants.
ANSWER TO PLAINTIFF'S ASBESTOS
COMPLAINT AND AFFIRMATIVE DEFENSES OF
DEFENDANT GOULDS PUMPS. LLC
Defendant Goulds Pumps, LLC, identified in the Complaint as Goulds Pumps,
Incorporated f/k/a Goulds Pumps Merger Corporation (hereinafter referred to as "Goulds"), as its
Answer to Plaintiff's Asbestos Complaint, (hereinafter referred to as "Complaint") and
Affirmative Defenses, states as follows:
1. Goulds is without knowledge or information to fonn a belief as to the truth of the
allegations set forth in Paragraph 1.
2. To the extent that Paragraph 2 contains allegations against Goulds, Goulds denies
the allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against
entities other than Goulds, Goulds is without knowledge or infonnation sufficient to fonn a belief
as to the truth of the allegations set forth against those entities. Further, the application of NY Civ.
workers'
Prac. L. Art 16 §1602 and the compensation law are questions of law to be detennined
by this Court.
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3-9. Paragraphs 3 through 9 make no allegation against Goulds and therefore Goulds
makes no answer thereto.
10. To the extent that Paragraph 10 contains allegations against Goulds, Goulds denies
the allegations set forth in Paragraph 10. Answering further, the allegation that Goulds has
conducted and/or transacted business in New York is a question of law to be adjudicated by this
Court. To the extent that Paragraph 10 contains allegations against entities other than Goulds,
Goulds is without knowledge or information to form a belief as to the truth of the allegations set
forth against those entities.
11-21. Paragraphs 11 through 21 make no allegation against Goulds and therefore Goulds
makes no answer thereto.
22-27. To the extent that the allegations in Paragraphs 22 through 27 are directed against
Goulds, Goulds denies the allegations. To the extent that Paragraphs 22 through 27 contain
allegations against entities other than Goulds, Goulds is without knowledge or information
sufficient to form a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A FIRST CAUSE OF ACTION
28. Goulds repeats each and every answer contained in Paragraphs 1 through 27 of this
Answer herein with the same force and effect is as if fully set forth herein.
29. The allegations in Paragraph 29 are overly broad, vague, and lack foundation.
Therefore, to the extent that Paragraph 29 contains allegations against Goulds, Goulds denies the
allegations set forth in Paragraph 29. To the extent that Paragraph 29 contains allegations against
entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth against those entities.
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30--40. To the extent that the allegations in Paragraphs 30 through 40 are directed against
Goulds, Goulds denies the allegations. To the extent Paragraphs 30 through 40 contain allegations
against entities other than Goulds, Goulds is without knowledge or infonnation sufficient to fonn
a belief as to the truth of the allegations set forth against those entities.
41. Goulds denies the allegations in Paragraph 41.
42-43. To the extent that Paragraphs 42 and 43 contain allegations against Goulds, Goulds
denies the allegations set forth in Paragraphs 42 and 43. To the extent that Paragraphs 42 and 43
contain allegations against entities other than Goulds, Goulds is without knowledge or infonnation
sufficient to fonn a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A SECOND CAUSE OF ACTION
44. Goulds repeats each and every answer contained in Paragraphs 1 through 43 of this
Answer herein with the same force and effect is as if fully set forth herein.
45-46. To the extent that Paragraphs 45 and 46 contain allegations against Goulds, Goulds
denies the allegations set forth in Paragraphs 45 and 46. To the extent that Paragraphs 45 and 46
contain allegations against entities other than Goulds, Goulds is without knowledge or infonnation
sufficient to form a belief as to the truth of the allegations set forth against those entities.
47-48. The allegations in Paragraphs 47 and 48 are overly broad, vague, and lack
foundation. Therefore, to the extent that Paragraphs 47 and 48 contain allegations against Goulds,
Goulds denies the allegations set forth in Paragraphs 47 and 48. To the extent that Paragraphs 47
and 48 contain allegations against entities other than Goulds, Goulds is without knowledge or
information sufficient to fonn a belief as to the truth of the allegations set forth against those
entities.
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49. To the extent that Paragraph 49 contains allegations against Goulds, Goulds denies
the allegations set forth in Paragraph 49. To the extent that Paragraph 49 contains allegations
against entities other than Goulds, Goulds is without knowledge or information sufficient to form
a belief as to the truth of the allegations set forth against those entities.
AS AND FOR A THIRD CAUSE OF ACTION
50. Goulds repeats each and every answer contained in Paragraphs 1 through 49 of this
Answer herein with the same force and effect is as if fully set forth herein.
51-59. To the extent that Paragraphs 51 through 59 contain allegations against Goulds,
Goulds denies the allegations set forth in Paragraphs 51 through 59. To the extent that Paragraphs
51 through 59 contain allegations against entities other than Goulds, Goulds is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
AS AND FOR A FOURTH CAUSE OF ACTION
60. Goulds repeats each and every answer contained in Paragraphs 1 through 59 of this
Answer herein with the same force and effect is as if fully set forth herein.
61-65. To the extent that Paragraphs 61 through 65 contain allegations against Goulds,
Goulds denies the allegations set forth in Paragraphs 61 through 65. To the extent that Paragraphs
61 through 65 contain allegations against entities other than Goulds, Goulds is without knowledge
or information sufficient to form a belief as to the truth of the allegations set forth against those
entities.
WHEREFORE, Defendant Goulds Pumps, LLC denies that Plaintiff is entitled to
compensatory and punitive damages and further requests that Plaintiff's claims be dismissed with
prejudice and any other relief this Honorable Court deems just.
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AFFIRMATIVE DEFENSES
First Defense
Plaintiff's Complaint fails to state a claim upon which relief may be granted.
Second Defense
Plaintiff's Complaint is barred by the applicable statute of repose or statute of limitations.
Third Defense
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.
Fourth Defense
Plaintiff has 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.
Fifth Defense
Workers'
The injuries and/or illnesses to Plaintiff, if any, are 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.
Sixth Defense
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, if itowed such a legal duty, itdid not breach
such duty.
Seventh Defense
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.
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Eighth Defense
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.
Ninth Defense
This action is barred, in whole or in part, by the misuse, abuse, or substantial modification
of the product.
Tenth Defense
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.
Eleventh Defense
Plaintiff, Josephine E. McClure, contributed to her illness, either in whole or in part, by the
use of other substances, products, medications and drugs. To the extent that Plaintiff, Josephine
E. McClure, used any tobacco products, any damages awarded should be reduced in whole or in
part by the amount of her damages caused by smoking.
Twelfth Defense
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.
Thirteenth Defense
Plaintiff's alleged damages 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.
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Fourteenth Defense
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 Plaintiff, 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.
Fifteenth Defense
If Plaintiff suffered damages as a result of the allegations set forth in the Complaint, then
those damages were the result of intervening or superseding acts or omissions of persons other
than the Defendant.
Sixteenth Defense
If Plaintiff suffered injuries as a proximate result of a condition of Defendant's products,
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.
Seventeenth Defense
If any of the allegations of Plaintiff with respect to the defective condition of asbestos or
asbestos products are proven, then Plaintiff are barred from any recovery due to the fact that at all
relevant times there was no known substitute for asbestos or asbestos products.
Eighteenth Defense
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-containing products presented a
foreseeable risk of hann to any person in the normal and expected use of those products.
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Nineteenth Defense
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.
Twentieth Defense
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,
d_e minimis.
Twenty-First Defense
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-Second Defense
Defendant is not liable for any damages alleged to have resulted from exposure to any of
itsproducts which were manufactured pursuant to Government specifications.
Twenty-Third Defense
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 ifPlaintiff 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.
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Twenty-Fourth Defense
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.
Twenty-Fifth Defense
To the extent Plaintiff alleges a cause of action forexpress and/orimplied 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 warranties between Plaintiff and Defendant.
Twenty-Sixth Defense
To the extent that any breach of warranty is alleged, Plaintiff has failed to give proper and
prompt notice of any such breach to Defendant.
Twenty-Seventh Defense
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.
Twenty-Eighth Defense
The action cannot proceed in the absence of allparties who should be named in accordance
with New York CPLR § 1001.
Twenty-Ninth Defense
The recoverable damages, if any, should be diminished under the collateral source rule set
forth in New York CPLR § 4545.
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Thirtieth Defense
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.
Thirty-First Defense
If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR
Article 16, itshall only be liable for its equitable share of Plaintiff's recovery since any liability
which will be found against itwill be insufficient to impose joint liability.
Thirty-Second Defense
Pursuant to New York CPLR Article the if of Defendant for non-
16, liability, any,
economic loss shall not exceed itsequitable share of liability.
Thirty-Third Defense
To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct that was not
actionable at the time it occurred, Plaintiff's claims violate Defendant's right to be free from ex
p_ost facto laws and Defendant's procedural and substantive due process rights under the
Constitution of the United States.
Thirty-Fourth Defense
Any claim for exemplary and/or punitive damages is barred because such damages are not
recoverable or warranted in this action.
Thirty-Fifth Defense
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.
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Thirty-Sixth Defense
Plaintiff's 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:
(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;
fines"
(c) Defendant's rights to protection from "excessive as provided in the
Constitutions of the United States and the State of New York.
Thirty-Seventh Defense
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.
Thirty-Eighth Defense
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.
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Thirty-Ninth Defense
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 action and
hereby specifically reserves the right to amend its Answer for purposes of asserting further
additional defenses.
Dated: April 12, 2019
Respectfully submitted,
Goulds Pumps, LLC
By:
Beth L. Hughes
One ofthe attorneys for Goulds Pumps, LLC
Beth L. Hughes
Brady S. Edwards
Morgan Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6000
Fax: (212) 309-6001
beth.hughes@morganlewis.com
To: Lipsitz & Ponterio, LLC
135 Delaware Avenue, Fifth Floor
Buffalo, NY 14202-2415
Attorneys for Plaintiff
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
BETH L. HUGHES, an attomey duly admitted to practice law before the Courts of the
State of New York, deposes and says that I am attorney for Goulds Pumps, LLC, with an office
located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and
Affirmative Defenses to Plaintiff's Complaint on Behalf of Defendant Goulds Pumps, LLC and
know the contents thereof, that the same is true upon information and belief and I believe itto be
true, that the grounds of my belief are public records, records and documents currently in my
possession pertaining to this matter, and conversations with client's agents, and that the reason
why this verification is made by me and not by said defendant is that said defendant is a foreign
corporation which has no offices located in New York County where I maintain an office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: April 12, 2019
New York, New York
Beth L. Hughes
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Preview
FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE --------------------------------------------------------------x This Document Relates To: Index No. 802542/2019 JOSEPHINE E. McCLURE, Plaintiff, VERIFIED ANSWER vs. CBS CORPORATION, et al., Defendants. ANSWER TO PLAINTIFF'S ASBESTOS COMPLAINT AND AFFIRMATIVE DEFENSES OF DEFENDANT GOULDS PUMPS. LLC Defendant Goulds Pumps, LLC, identified in the Complaint as Goulds Pumps, Incorporated f/k/a Goulds Pumps Merger Corporation (hereinafter referred to as "Goulds"), as its Answer to Plaintiff's Asbestos Complaint, (hereinafter referred to as "Complaint") and Affirmative Defenses, states as follows: 1. Goulds is without knowledge or information to fonn a belief as to the truth of the allegations set forth in Paragraph 1. 2. To the extent that Paragraph 2 contains allegations against Goulds, Goulds denies the allegations set forth in Paragraph 2. To the extent that Paragraph 2 contains allegations against entities other than Goulds, Goulds is without knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations set forth against those entities. Further, the application of NY Civ. workers' Prac. L. Art 16 §1602 and the compensation law are questions of law to be detennined by this Court. - 1 - 1 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 3-9. Paragraphs 3 through 9 make no allegation against Goulds and therefore Goulds makes no answer thereto. 10. To the extent that Paragraph 10 contains allegations against Goulds, Goulds denies the allegations set forth in Paragraph 10. Answering further, the allegation that Goulds has conducted and/or transacted business in New York is a question of law to be adjudicated by this Court. To the extent that Paragraph 10 contains allegations against entities other than Goulds, Goulds is without knowledge or information to form a belief as to the truth of the allegations set forth against those entities. 11-21. Paragraphs 11 through 21 make no allegation against Goulds and therefore Goulds makes no answer thereto. 22-27. To the extent that the allegations in Paragraphs 22 through 27 are directed against Goulds, Goulds denies the allegations. To the extent that Paragraphs 22 through 27 contain allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FIRST CAUSE OF ACTION 28. Goulds repeats each and every answer contained in Paragraphs 1 through 27 of this Answer herein with the same force and effect is as if fully set forth herein. 29. The allegations in Paragraph 29 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraph 29 contains allegations against Goulds, Goulds denies the allegations set forth in Paragraph 29. To the extent that Paragraph 29 contains allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. - 2 - 2 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 30--40. To the extent that the allegations in Paragraphs 30 through 40 are directed against Goulds, Goulds denies the allegations. To the extent Paragraphs 30 through 40 contain allegations against entities other than Goulds, Goulds is without knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations set forth against those entities. 41. Goulds denies the allegations in Paragraph 41. 42-43. To the extent that Paragraphs 42 and 43 contain allegations against Goulds, Goulds denies the allegations set forth in Paragraphs 42 and 43. To the extent that Paragraphs 42 and 43 contain allegations against entities other than Goulds, Goulds is without knowledge or infonnation sufficient to fonn a belief as to the truth of the allegations set forth against those entities. AS AND FOR A SECOND CAUSE OF ACTION 44. Goulds repeats each and every answer contained in Paragraphs 1 through 43 of this Answer herein with the same force and effect is as if fully set forth herein. 45-46. To the extent that Paragraphs 45 and 46 contain allegations against Goulds, Goulds denies the allegations set forth in Paragraphs 45 and 46. To the extent that Paragraphs 45 and 46 contain allegations against entities other than Goulds, Goulds is without knowledge or infonnation sufficient to form a belief as to the truth of the allegations set forth against those entities. 47-48. The allegations in Paragraphs 47 and 48 are overly broad, vague, and lack foundation. Therefore, to the extent that Paragraphs 47 and 48 contain allegations against Goulds, Goulds denies the allegations set forth in Paragraphs 47 and 48. To the extent that Paragraphs 47 and 48 contain allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to fonn a belief as to the truth of the allegations set forth against those entities. - 3 - 3 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 49. To the extent that Paragraph 49 contains allegations against Goulds, Goulds denies the allegations set forth in Paragraph 49. To the extent that Paragraph 49 contains allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A THIRD CAUSE OF ACTION 50. Goulds repeats each and every answer contained in Paragraphs 1 through 49 of this Answer herein with the same force and effect is as if fully set forth herein. 51-59. To the extent that Paragraphs 51 through 59 contain allegations against Goulds, Goulds denies the allegations set forth in Paragraphs 51 through 59. To the extent that Paragraphs 51 through 59 contain allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. AS AND FOR A FOURTH CAUSE OF ACTION 60. Goulds repeats each and every answer contained in Paragraphs 1 through 59 of this Answer herein with the same force and effect is as if fully set forth herein. 61-65. To the extent that Paragraphs 61 through 65 contain allegations against Goulds, Goulds denies the allegations set forth in Paragraphs 61 through 65. To the extent that Paragraphs 61 through 65 contain allegations against entities other than Goulds, Goulds is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth against those entities. WHEREFORE, Defendant Goulds Pumps, LLC denies that Plaintiff is entitled to compensatory and punitive damages and further requests that Plaintiff's claims be dismissed with prejudice and any other relief this Honorable Court deems just. - 4 - 4 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 AFFIRMATIVE DEFENSES First Defense Plaintiff's Complaint fails to state a claim upon which relief may be granted. Second Defense Plaintiff's Complaint is barred by the applicable statute of repose or statute of limitations. Third Defense 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. Fourth Defense Plaintiff has 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. Fifth Defense Workers' The injuries and/or illnesses to Plaintiff, if any, are 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. Sixth Defense 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, if itowed such a legal duty, itdid not breach such duty. Seventh Defense 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. - 5 - 5 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Eighth Defense 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. Ninth Defense This action is barred, in whole or in part, by the misuse, abuse, or substantial modification of the product. Tenth Defense 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. Eleventh Defense Plaintiff, Josephine E. McClure, contributed to her illness, either in whole or in part, by the use of other substances, products, medications and drugs. To the extent that Plaintiff, Josephine E. McClure, used any tobacco products, any damages awarded should be reduced in whole or in part by the amount of her damages caused by smoking. Twelfth Defense 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. Thirteenth Defense Plaintiff's alleged damages 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. - 6 - 6 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Fourteenth Defense 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 Plaintiff, 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. Fifteenth Defense If Plaintiff suffered damages as a result of the allegations set forth in the Complaint, then those damages were the result of intervening or superseding acts or omissions of persons other than the Defendant. Sixteenth Defense If Plaintiff suffered injuries as a proximate result of a condition of Defendant's products, 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. Seventeenth Defense If any of the allegations of Plaintiff with respect to the defective condition of asbestos or asbestos products are proven, then Plaintiff are barred from any recovery due to the fact that at all relevant times there was no known substitute for asbestos or asbestos products. Eighteenth Defense 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-containing products presented a foreseeable risk of hann to any person in the normal and expected use of those products. - 7 - 7 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Nineteenth Defense 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. Twentieth Defense 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, d_e minimis. Twenty-First Defense 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-Second Defense Defendant is not liable for any damages alleged to have resulted from exposure to any of itsproducts which were manufactured pursuant to Government specifications. Twenty-Third Defense 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 ifPlaintiff 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. - 8 - 8 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Twenty-Fourth Defense 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. Twenty-Fifth Defense To the extent Plaintiff alleges a cause of action forexpress and/orimplied 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 warranties between Plaintiff and Defendant. Twenty-Sixth Defense To the extent that any breach of warranty is alleged, Plaintiff has failed to give proper and prompt notice of any such breach to Defendant. Twenty-Seventh Defense 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. Twenty-Eighth Defense The action cannot proceed in the absence of allparties who should be named in accordance with New York CPLR § 1001. Twenty-Ninth Defense The recoverable damages, if any, should be diminished under the collateral source rule set forth in New York CPLR § 4545. - 9 - 9 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Thirtieth Defense 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. Thirty-First Defense If Defendant is ultimately found to be liable to Plaintiff, then, pursuant to New York CPLR Article 16, itshall only be liable for its equitable share of Plaintiff's recovery since any liability which will be found against itwill be insufficient to impose joint liability. Thirty-Second Defense Pursuant to New York CPLR Article the if of Defendant for non- 16, liability, any, economic loss shall not exceed itsequitable share of liability. Thirty-Third Defense To the extent Plaintiff seeks to hold Defendant liable retroactively for conduct that was not actionable at the time it occurred, Plaintiff's claims violate Defendant's right to be free from ex p_ost facto laws and Defendant's procedural and substantive due process rights under the Constitution of the United States. Thirty-Fourth Defense Any claim for exemplary and/or punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-Fifth Defense 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. - 10 - 10 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Thirty-Sixth Defense Plaintiff's 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: (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; fines" (c) Defendant's rights to protection from "excessive as provided in the Constitutions of the United States and the State of New York. Thirty-Seventh Defense 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. Thirty-Eighth Defense 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. - 11 - 11 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 Thirty-Ninth Defense 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 action and hereby specifically reserves the right to amend its Answer for purposes of asserting further additional defenses. Dated: April 12, 2019 Respectfully submitted, Goulds Pumps, LLC By: Beth L. Hughes One ofthe attorneys for Goulds Pumps, LLC Beth L. Hughes Brady S. Edwards Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Phone: (212) 309-6000 Fax: (212) 309-6001 beth.hughes@morganlewis.com To: Lipsitz & Ponterio, LLC 135 Delaware Avenue, Fifth Floor Buffalo, NY 14202-2415 Attorneys for Plaintiff - 12 - 12 of 13 FILED: ERIE COUNTY CLERK 04/12/2019 04:25 PM INDEX NO. 802542/2019 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/12/2019 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) BETH L. HUGHES, an attomey duly admitted to practice law before the Courts of the State of New York, deposes and says that I am attorney for Goulds Pumps, LLC, with an office located at 101 Park Avenue, New York, New York, that I have read the foregoing Answer and Affirmative Defenses to Plaintiff's Complaint on Behalf of Defendant Goulds Pumps, LLC and know the contents thereof, that the same is true upon information and belief and I believe itto be true, that the grounds of my belief are public records, records and documents currently in my possession pertaining to this matter, and conversations with client's agents, and that the reason why this verification is made by me and not by said defendant is that said defendant is a foreign corporation which has no offices located in New York County where I maintain an office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: April 12, 2019 New York, New York Beth L. Hughes 13 13 of 13