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Filing # 101829847 E-Filed 01/17/2020 11:01:04 AM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
JOEL CARL ROGERS and HILDA ROGERS, his wife,
GENERAL JURISDICTION DIVISION
CASE NO.: CACE-19-025692
Plaintiffs,
Vv.
ACOUSTI ENGINEERING COMPANY OF FLORIDA;
CERTAINTEED CORPORATION;
HONEYWELL INTERNATIONAL, INC.
(sued individually and as successor in interest to
Allied-Signal, Inc., and Bendix Corporation);
J-M MANUFACTURING COMPANY, INC.;
KAISER GYPSUM COMPANY, INC.;
MCKESSON CHEMICAL COMPANY;
PFIZER, INC.;
PREMIX-MARBLETITE MANUFACTURING CO.;
SUPRO CORPORATION;
UNION CARBIDE CORPORATION;
VANDERBILT MINERALS, LLC, f/k/a VANDERBILT COMPANY, INC.,
Individually and successor-in-interest to GOUVERNEUR TALC COMPANY, INC.;
W.W. GAY MECHANICAL CONSTRUCTION CO.,
Defendants.
/
DEFENDANT J-M MANUFACTURING COMPANY, INC.’S
ANSWER AND AFFIRMATIVE DEFENSES
Defendant J-M MANUFACTURING COMPANY, INC., (hereinafter “J-MM”), by and
through its undersigned attorney and pursuant to Florida Rule of Civil Procedure 1.140, submits
its Answer and Affirmative Defenses responding to Plaintiffs’ Complaint and Demand for Jury
Trial as follows:
1, J-MM admits paragraph 1 of the Complaint for purposes of jurisdiction only and
denies the remaining allegations of paragraph 1.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/17/2020 11:01:03 AM.****2. J-MM admits paragraph 3 of the Complaint to the extent J-MM is a Delaware
corporation with its primary place of business in California, and is without knowledge as to other
Defendants.
3. J-MM is without knowledge and therefore denies the allegations contained in
paragraphs 2 and 35 of the Complaint.
4, J-MM denies each and every remaining allegation of the Complaint not expressly
admitted and demands strict proof thereof.
5. J-MM demands a trial by jury on all issues so triable.
AFFIRMATIVE DEFENSES
1. Statute Of Limitations: The Plaintiffs’ Complaint is barred by the applicable
statute of limitations.
2. Comparative Negligence: The Plaintiffs’ Complaint is barred and/or Plaintiffs’
damages should be reduced, because the injuries and damages allegedly suffered by the Plaintiff
were proximately caused in whole or in part by the negligence of the Plaintiff. Such acts of
negligence include, but are not limited to, the handling and misuse of products to which exposure
is alleged, failure to use precautionary measures readily available, failure to demand that proper
safety equipment be supplied to Plaintiff, using or being voluntarily exposed to tobacco known
to aggravate or exacerbate conditions resultant from exposure to asbestos products, continuing
voluntarily to be exposed to asbestos products at a time when the Plaintiff knew or should have
known of the harm therefrom, failing to exercise due care and caution under the circumstances,
and other acts unknown to Defendants at this time.
3. Assumption Of Risk: The Plaintiffs’ Complaint is barred because the Plaintiff
knowingly assumed the risk of the injuries and damages allegedly suffered.4. Compliance With Standards: If Defendant supplied asbestos products, either
directly or indirectly, to Plaintiffs employer, such products were supplied according to
specifications and standards promulgated by that employer and/or agencies and departments of
the United States of America.
5. State Of The Art: Products supplied and/or sold by Defendant were not defective
or unduly hazardous and were within the existing state of the art.
6. Misuse Of Product: The Plaintiffs’ claims against J-MM are barred in that the
products that Plaintiff alleges caused or contributed to Plaintiff's injuries were altered, misused,
or abused after they left the custody and control of J-MM.
7. Set-off: J-MM is entitled to a set-off against any payments made by other
Defendants in this action and as against any compensation payments made to Plaintiffs by others,
including bankruptcy trusts, for his alleged injuries. J-MM is also entitled to a set-off for any
payments made to health care providers or others on behalf of the Plaintiff.
8. Superseding, Intervening Cause: The exposure of the Plaintiff to any product
Plaintiff alleges Defendant sold, if such an exposure did in fact occur, was so minimal that it was
not a material contributing cause to any injury or damage alleged to have been sustained. Thus,
the exposure of the Plaintiff to any product manufactured or sold by other person or persons
unknown constitutes a superseding intervening cause of Plaintiff's damages.
9. Unforeseeability: At the time Plaintiff alleges exposure, the injury to Plaintiff, if
any, was not a foreseeable result of the use of this Defendant's products.
10. Reasonable Reliance Upon Buyers: The products sold and/or supplied by this
Defendant, if any, were marketed and sold to buyers who were sophisticated and knowledgeable
concerning the use and hazards of asbestos, if any such products were sold. J-MM did not dealdirectly with any end purchaser or user of any product referred to in Plaintiffs’ Complaint. This
Defendant reasonably relied upon that sophisticated purchaser, and it is not responsible for the
failure of employers to warn or to take proper precautions for their employees. The seller and/or
purchaser of such a product and/or plaintiffs employers were in a better position to warn the
plaintiffs, if a warning was required, and their failure to do so was a superseding cause of any
injury to the Plaintiffs.
11. Market Share Inappropriate: Plaintiffs are barred from relying on alternative
theories of liability, including market share for enterprise liability, because Plaintiff is able to
identify the asbestos-containing products of other manufacturers or sellers to which he was
allegedly exposed.
12. Failure To Join An Indispensable Party: This action fails to name as a Defendant a
potential indispensable party to the litigation.
13. Reliance On Medical And Scientific Art: This action is barred in whole or in part
because at all times material herein, the state of the medical and industrial art was such that there
was no generally accepted or recognized knowledge of any unsafe, inherently dangerous or
hazardous character or nature of products containing asbestos when used in the manner and for
the purpose described by the plaintiffs, and therefore, there was no duty for J-MM to know of
any such character or nature or to warn Plaintiffs or others similarly situated.
14. Shifting Of Burden Of Proof Unconstitutional: J-MM demands that Plaintiffs be
required to prove according to the essential requirements of law, each of the elements necessary
to establish the alleged liability of J-MM. Particularly, Plaintiffs must specifically prove that the
damages claimed are legally caused by defects in products sold or supplied by J-MM and that
said products were defective and were a proximate or direct material cause of injury toPlaintiffs. Any departure from established practice that Plaintiffs bear the burden of proof on all
issues, and the issue of causation in particular, would be a violation of the rights guaranteed by
the equal protection and due process clauses of the 14th Amendment to the Constitution of the
United States, as well as Article I, Section 9 of the Constitution of the State of Florida.
15. Inevitability Of Plaintiffs’ Injury: Plaintiffs’ injuries and damages, if any, should
be reduced proportionate to the probability that he would have suffered the same injury or
damages notwithstanding the alleged exposure to products sold or supplied by J-MM.
Steinhauser_v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970); Lancaster v. Norfolk & Western
Rwy. Co., 773 F.2d 807 (7th Cir. 1985).
16. Tobacco Use: Plaintiff's own conduct and personal health care, including the
continuous use of tobacco, was a substantial, effective, intervening, and superseding cause of
the injuries and damage complained of.
17. No Cause Of Action For Strict Liability For Failure To Warn: Inasmuch as
Plaintiffs’ cause of action for strict liability is based on an alleged failure to warn of J-MM, it
fails to state a cause of action. Strict liability is indistinguishable from negligence when based
upon a failure to warn, which is an allegedly negligent action of a defendant, not a condition of
a product. ‘Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla. 1958).
18. Denial OF Joint And Several Liability: Defendant affirmatively alleges that the
Plaintiffs’ damages were caused in whole or in part by third parties for whom Defendant is not
liable. Defendant requests that a jury determine the percent of responsibility of this third party
pursuant to Florida Statute 768.81 (1987).19. Statute Of Repose: Defendant affirmatively alleges that the Plaintiffs’ Complaint
is barred by the applicable statute of repose Section 95.031, Florida Statutes (2007) and Section
95.11, Florida Statutes (2007).
20. Apportionment Of Damages: Other persons or entities not a party to this action
contributed to and/or proximately caused the damages, if any, to the Plaintiffs, and thus any
damages should be apportioned among all the parties solely based on that party’s percentage of
fault pursuant to Florida Statute § 768.81(3). In accordance with Florida Statute § 768.81(3) and
Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), this Defendant reserves the right that these other
entities or persons, whether parties or non-parties, appear on the verdict form so that a jury can
apportion liability among all participants to the incidents which caused Plaintiffs’ damages. This
Defendant seeks apportionment of any damages awarded in this case and will include some or all
of the entities listed below on the jury verdict form in accordance with Nash v. Wells Fargo
Guard Servs., 678 So.2d 1262 (Fla. 1996).
Entities that may be listed include, but are not limited to the following entities or persons
named as Defendants in Plaintiffs’ Complaint and Exposure Sheets, and any and all amendments
or supplements thereto: Acousti Engineering Company of Florida; Certainteed Corporation;
Honeywell International, Inc., individually and as successor in interest to Allied-Signal, Inc., and
Bendix Corporation; Kaiser Gypsum Company, Inc.; Mckesson Chemical Company; Pfizer, Inc.;
Premix-Marbletite Manufacturing Co.; Supro Corporation; Union Carbide Corporation;
Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc., individually and successor-in-interest
to Gouverneur Tale Company, Inc.; and W.W. Gay Mechanical Construction Co.
In addition and also pursuant to Fabre, any damages which may be awarded to Plaintiff's
are subject to apportionment by the jury of the total fault of all participants, including but notlimited to any and all non-defendant employers of Plaintiffs’, including but not limited to those
employers identified in Plaintiffs’ Exposure Sheets, and identified by Plaintiffs’ or by Plaintiffs’
witnesses in any deposition taken in this action or to be taken in this action.
Furthermore and also pursuant to Fabre, any damages which may be awarded to the
Plaintiffs are subject to apportionment by the jury of the total fault of all participants, including
but not limited to any and all manufacturers, suppliers, and/or distributors of products named or
identified by Plaintiffs in Plaintiffs’ Complaint and Exposure Sheets, any and all amendments or
supplements thereto, and any and all manufacturers, suppliers, and/or distributors of products
named or identified by Plaintiffs or by Plaintiffs’ witnesses in any deposition taken in this action
or to be taken in this action, specifically including but not limited to the following products,
manufacturers, distributors, and/or suppliers: Acousti Engineering Company of Florida;
Certainteed Corporation; Honeywell International, Inc., individually and as successor in interest
to Allied-Signal, Inc., and Bendix Corporation; Kaiser Gypsum Company, Inc.; Mckesson
Chemical Company; Pfizer, Inc.; Premix-Marbletite Manufacturing Co.; Supro Corporation;
Union Carbide Corporation; Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc.,
individually and successor-in-interest to Gouverneur Tale Company, Inc.; and W.W. Gay
Mechanical Construction Co.
Accordingly, this Defendant is entitled to an apportionment of damages pursuant to
Florida Statute § 768.81 and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) for the negligence and
strict liability of the above-named entities, Defendant reserves the right to amend in order to
identify such parties or non-parties to be included on the verdict form pursuant to Nash v. Wells
Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996).
21. Res Judicata/Collateral Estoppel: Defendant affirmatively alleges these Plaintiffshave previously litigated these issues with this Defendant and therefore these claims are barred
by the doctrines of res judicata and/or collateral estoppel.
22. Safe Work Area: If the Plaintiffs sustained the injuries and/or damages as alleged,
which is specifically denied, then said injuries and/or damages were proximately caused by the
acts and/or omissions of the Plaintiffs’ employers with respect to the maintenance of a healthy
and safe work site and environment, which were under such employer’s exclusive control and
possession.
23. Governmental Immunity: If it is shown that the Plaintiffs used any product sold or
supplied by J-MM, which is specifically denied, and if it is shown that such product was supplied
to, by or on behalf of the United States Government, then J-MM raises any immunity from suit
or liability conferred upon the United States Government and/or J-MM, which may arise under
the circumstances.
24, Fellow Servant: If Plaintiffs sustained the injuries and/or damages as alleged, then
J-MM alleges that such injuries and damages were due to the negligence of Plaintiffs’ fellow
servants engaged in the course of common employment with Plaintiffs, and that such negligence
of the fellow servants bars this civil action.
25. Learned Intermediaries: Plaintiffs and/or his employers were sophisticated users
of, or learned intermediaries, with respect to the use of the products to which Plaintiffs were
allegedly exposed. Therefore, J-MM is not liable to Plaintiffs.
26. Alternative Design Unavailable: The alleged products sold or supplied by J-MM
of which Plaintiffs complain, with respect to which J-MM admits no liability, are not defective in
design or manufacture because at the time such products allegedly left control of J-MM, apractical and technically feasible alternative design or formulation was not available without
substantially impairing the usefulness or intended purpose of such products.
27. Section 774.201 et. seq.: Plaintiffs’ claim may be barred by Fla. Stat. Chapter
774.201 et. seq., the Asbestos and Silica Compensation Fairness Act. Plaintiffs are barred by
one, or more, of the following:
a. Plaintiffs are barred from recovery because the evidence of physical impairment,
including the written reports and test results, if any, were not oblained in accordance with Fla.
Stat. §774.204,
b. Plaintiffs are barred from recovery for his/her failure to file a verified written
report disclosing collateral source payments received and to be received in the future. Fla, Stat.
§774.207.
c. Plaintiffs have failed to comply with all requirements set forth in Section 774.208;
Liability rules applicable to protect sellers, renters and lessors.
28. Encapsulated Product: The products that contained asbestos that were allegedly
supplied, or otherwise placed in the stream of commerce by the Defendant were made so that the
asbestos fibers were encapsulated in other material which would prevent the release of injury-
producing levels of such fibers upon the use of said product.
29. Punitive Damages Inappropriate: Any claim for punitive damages is barred by
Section 774.207, Fla. Stat. (2007).
30. Improper Venue: Venue is improper in this action and Defendant reserves its right
to move for dismissal and/or transfer of the action based on improper and/or inconvenient venue
and/or the doctrine of forum non conveniens.
31. Failure To State A Claim: Plaintiffs’ Complaint and each of its causes of actionfails to state a claim upon which relief may be granted against Defendant. In addition, Plaintiffs’
Complaint is subject to dismissal for improper commingling of allegations against all defendants
such that it is impossible for any individual defendant to answer Plaintiffs’ overly broad and
vague allegations directed against all defendants.
32. Federal Preemption: Plaintiffs’ claims are preempted by federal law and are
therefore barred under Florida law.
33. If it should be proven at the time of trial that the plaintiff was exposed to asbestos
containing products alleged to have been designed, sold, distributed, supplied and/or utilized by
Defendant, such products were accompanied by adequate warnings which were in conformity
with the existing state of the art in regard to the foreseeable use of said products or materials.
34, J-MM reserves the right to amend its answer and adopt additional defenses which
have been or will be served by other defendants. In addition J-MM will rely upon further
defenses which become available or appear during discovery proceedings in these actions and
hereby specifically reserve the right to amend the answer for the purposes of asserting any such
additional defenses.
35. Defendant incorporates by reference, as if more fully set forth at length herein, all
defenses, both affirmative and otherwise, raised, pleaded or asserted by all other answering
defendants and third party defendants.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 17, 2020, I electronically filed the foregoing with
the Clerk of the Courts by using the Florida Courts eFiling Portal and served via File & Serve
Xpress which will send electronic notice to all counsel of record on the attached Service List./s/ Jeffrey W. Kirsheman yn
JEFFREY W. KIRSHEMAN, ESQUIRE
Florida Bar No. 0059341
Fisher Rushmer, P.A.
Post Office Box 3753
Orlando, FL 32802-3753
Tel: 407-843-2111 / Fax: 407-422-1080
Primary: jkirsheman@fisherlawfirm.com
Secondary: mmontanez@fisherlawfirm.com
Attorneys for Defendant, J-M Manufacturing
Company, Inc,SERVICE LIST
Counsel for Plaintiffs JOEL CARL ROGERS and HILDA ROGERS:
Rebecca S, Vinocur J. Andrew Sealey
Rebecca S, Vinocur, P.A. Simmons Hanly Conroy
5915 Ponce De Leon Blvd., Suite 14 One Court Street
Coral Gables, FL 33146 Alton, IL 62002
rvinocur@rsv-law.com, ayala@rsv-law.com
Counsel for ACOUSTI ENGINEERING COMPANY OF FLORIDA:
Joseph A. Lane
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
Joe.lane@lowndes-law.com, litcontrol@lowndes-law.com, terri. bagley@lowndes-law.com
Counsel for HONEYWELL INTERNATIONAL, INC. (sued individually and as successor in
interest to Allied-Signal, Inc., and Bendix Corporation):
Caroline M. Iovino
Anthony N. Upshaw
McDermott Will & Emery, LLP
333 Avenue of the Americas, Suite 4500
Miami, FL 33131-4338
clovino@mwe.com, aupshaw@mwe.com, mblancoaleman@mwe.com, mmoya@mwe.com
Counsel for MCKESSON CHEMICAL COMPANY:
Michelle Gervais-Kullman
Blank Rome, LLP
201 East Kennedy Blvd., Suite 520
Tampa, FL 33602
mgervais@blankrome.com, jneel@blankrome.com
Counsel for PFIZER, INC.:
Susan J. Cole, B.C.S.
Melanie Chung-Tims
Amanda Cachaldora
Bice Cole Law Firm, P.L.
999 Ponce de Leon Blvd., Suite 710
Coral Gables, FL 33134
chungtims@bicecolelaw.com, cachaldora@bicolelaw.com, asbestosservice@bicecolelaw.comCounsel for PREMIX-MARBLETITE MANUFACTURING CO.:
Edward J. Briscoe
Peter J. Melaragno
Fowler White Burnett, P.A.
Espiritu Santo Plaza 14" Floor
1395 Brickell Avenue
Miami, FL 33131
ebriscoe@fowler-white.com, shoag@fowler-white.com, pmelaragno@fowler-white,com
Counsel for VANDERBILT MINERALS, LLC, f/k/a VANDERBILT COMPANY, INC.,
Individually and successor-in-interest to GOUVERNEUR TALC COMPANY, INC.:
Eduardo J. Medina
Foley & Mansfield, PLLP
4770 Biscayne Blvd, Suite 1000
Miami, FL 33137
courtmailmiami@foleymansfield.com, emedina@foleymansfield.com
L:\WWK\JMM-Rogers\PLEADING\-MM (FL) Roger - ANSWER - AER - final.docx
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Filing # 101829847 E-Filed 01/17/2020 11:01:04 AM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA JOEL CARL ROGERS and HILDA ROGERS, his wife, GENERAL JURISDICTION DIVISION CASE NO.: CACE-19-025692 Plaintiffs, Vv. ACOUSTI ENGINEERING COMPANY OF FLORIDA; CERTAINTEED CORPORATION; HONEYWELL INTERNATIONAL, INC. (sued individually and as successor in interest to Allied-Signal, Inc., and Bendix Corporation); J-M MANUFACTURING COMPANY, INC.; KAISER GYPSUM COMPANY, INC.; MCKESSON CHEMICAL COMPANY; PFIZER, INC.; PREMIX-MARBLETITE MANUFACTURING CO.; SUPRO CORPORATION; UNION CARBIDE CORPORATION; VANDERBILT MINERALS, LLC, f/k/a VANDERBILT COMPANY, INC., Individually and successor-in-interest to GOUVERNEUR TALC COMPANY, INC.; W.W. GAY MECHANICAL CONSTRUCTION CO., Defendants. / DEFENDANT J-M MANUFACTURING COMPANY, INC.’S ANSWER AND AFFIRMATIVE DEFENSES Defendant J-M MANUFACTURING COMPANY, INC., (hereinafter “J-MM”), by and through its undersigned attorney and pursuant to Florida Rule of Civil Procedure 1.140, submits its Answer and Affirmative Defenses responding to Plaintiffs’ Complaint and Demand for Jury Trial as follows: 1, J-MM admits paragraph 1 of the Complaint for purposes of jurisdiction only and denies the remaining allegations of paragraph 1. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/17/2020 11:01:03 AM.****2. J-MM admits paragraph 3 of the Complaint to the extent J-MM is a Delaware corporation with its primary place of business in California, and is without knowledge as to other Defendants. 3. J-MM is without knowledge and therefore denies the allegations contained in paragraphs 2 and 35 of the Complaint. 4, J-MM denies each and every remaining allegation of the Complaint not expressly admitted and demands strict proof thereof. 5. J-MM demands a trial by jury on all issues so triable. AFFIRMATIVE DEFENSES 1. Statute Of Limitations: The Plaintiffs’ Complaint is barred by the applicable statute of limitations. 2. Comparative Negligence: The Plaintiffs’ Complaint is barred and/or Plaintiffs’ damages should be reduced, because the injuries and damages allegedly suffered by the Plaintiff were proximately caused in whole or in part by the negligence of the Plaintiff. Such acts of negligence include, but are not limited to, the handling and misuse of products to which exposure is alleged, failure to use precautionary measures readily available, failure to demand that proper safety equipment be supplied to Plaintiff, using or being voluntarily exposed to tobacco known to aggravate or exacerbate conditions resultant from exposure to asbestos products, continuing voluntarily to be exposed to asbestos products at a time when the Plaintiff knew or should have known of the harm therefrom, failing to exercise due care and caution under the circumstances, and other acts unknown to Defendants at this time. 3. Assumption Of Risk: The Plaintiffs’ Complaint is barred because the Plaintiff knowingly assumed the risk of the injuries and damages allegedly suffered.4. Compliance With Standards: If Defendant supplied asbestos products, either directly or indirectly, to Plaintiffs employer, such products were supplied according to specifications and standards promulgated by that employer and/or agencies and departments of the United States of America. 5. State Of The Art: Products supplied and/or sold by Defendant were not defective or unduly hazardous and were within the existing state of the art. 6. Misuse Of Product: The Plaintiffs’ claims against J-MM are barred in that the products that Plaintiff alleges caused or contributed to Plaintiff's injuries were altered, misused, or abused after they left the custody and control of J-MM. 7. Set-off: J-MM is entitled to a set-off against any payments made by other Defendants in this action and as against any compensation payments made to Plaintiffs by others, including bankruptcy trusts, for his alleged injuries. J-MM is also entitled to a set-off for any payments made to health care providers or others on behalf of the Plaintiff. 8. Superseding, Intervening Cause: The exposure of the Plaintiff to any product Plaintiff alleges Defendant sold, if such an exposure did in fact occur, was so minimal that it was not a material contributing cause to any injury or damage alleged to have been sustained. Thus, the exposure of the Plaintiff to any product manufactured or sold by other person or persons unknown constitutes a superseding intervening cause of Plaintiff's damages. 9. Unforeseeability: At the time Plaintiff alleges exposure, the injury to Plaintiff, if any, was not a foreseeable result of the use of this Defendant's products. 10. Reasonable Reliance Upon Buyers: The products sold and/or supplied by this Defendant, if any, were marketed and sold to buyers who were sophisticated and knowledgeable concerning the use and hazards of asbestos, if any such products were sold. J-MM did not dealdirectly with any end purchaser or user of any product referred to in Plaintiffs’ Complaint. This Defendant reasonably relied upon that sophisticated purchaser, and it is not responsible for the failure of employers to warn or to take proper precautions for their employees. The seller and/or purchaser of such a product and/or plaintiffs employers were in a better position to warn the plaintiffs, if a warning was required, and their failure to do so was a superseding cause of any injury to the Plaintiffs. 11. Market Share Inappropriate: Plaintiffs are barred from relying on alternative theories of liability, including market share for enterprise liability, because Plaintiff is able to identify the asbestos-containing products of other manufacturers or sellers to which he was allegedly exposed. 12. Failure To Join An Indispensable Party: This action fails to name as a Defendant a potential indispensable party to the litigation. 13. Reliance On Medical And Scientific Art: This action is barred in whole or in part because at all times material herein, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and for the purpose described by the plaintiffs, and therefore, there was no duty for J-MM to know of any such character or nature or to warn Plaintiffs or others similarly situated. 14. Shifting Of Burden Of Proof Unconstitutional: J-MM demands that Plaintiffs be required to prove according to the essential requirements of law, each of the elements necessary to establish the alleged liability of J-MM. Particularly, Plaintiffs must specifically prove that the damages claimed are legally caused by defects in products sold or supplied by J-MM and that said products were defective and were a proximate or direct material cause of injury toPlaintiffs. Any departure from established practice that Plaintiffs bear the burden of proof on all issues, and the issue of causation in particular, would be a violation of the rights guaranteed by the equal protection and due process clauses of the 14th Amendment to the Constitution of the United States, as well as Article I, Section 9 of the Constitution of the State of Florida. 15. Inevitability Of Plaintiffs’ Injury: Plaintiffs’ injuries and damages, if any, should be reduced proportionate to the probability that he would have suffered the same injury or damages notwithstanding the alleged exposure to products sold or supplied by J-MM. Steinhauser_v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970); Lancaster v. Norfolk & Western Rwy. Co., 773 F.2d 807 (7th Cir. 1985). 16. Tobacco Use: Plaintiff's own conduct and personal health care, including the continuous use of tobacco, was a substantial, effective, intervening, and superseding cause of the injuries and damage complained of. 17. No Cause Of Action For Strict Liability For Failure To Warn: Inasmuch as Plaintiffs’ cause of action for strict liability is based on an alleged failure to warn of J-MM, it fails to state a cause of action. Strict liability is indistinguishable from negligence when based upon a failure to warn, which is an allegedly negligent action of a defendant, not a condition of a product. ‘Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla. 1958). 18. Denial OF Joint And Several Liability: Defendant affirmatively alleges that the Plaintiffs’ damages were caused in whole or in part by third parties for whom Defendant is not liable. Defendant requests that a jury determine the percent of responsibility of this third party pursuant to Florida Statute 768.81 (1987).19. Statute Of Repose: Defendant affirmatively alleges that the Plaintiffs’ Complaint is barred by the applicable statute of repose Section 95.031, Florida Statutes (2007) and Section 95.11, Florida Statutes (2007). 20. Apportionment Of Damages: Other persons or entities not a party to this action contributed to and/or proximately caused the damages, if any, to the Plaintiffs, and thus any damages should be apportioned among all the parties solely based on that party’s percentage of fault pursuant to Florida Statute § 768.81(3). In accordance with Florida Statute § 768.81(3) and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), this Defendant reserves the right that these other entities or persons, whether parties or non-parties, appear on the verdict form so that a jury can apportion liability among all participants to the incidents which caused Plaintiffs’ damages. This Defendant seeks apportionment of any damages awarded in this case and will include some or all of the entities listed below on the jury verdict form in accordance with Nash v. Wells Fargo Guard Servs., 678 So.2d 1262 (Fla. 1996). Entities that may be listed include, but are not limited to the following entities or persons named as Defendants in Plaintiffs’ Complaint and Exposure Sheets, and any and all amendments or supplements thereto: Acousti Engineering Company of Florida; Certainteed Corporation; Honeywell International, Inc., individually and as successor in interest to Allied-Signal, Inc., and Bendix Corporation; Kaiser Gypsum Company, Inc.; Mckesson Chemical Company; Pfizer, Inc.; Premix-Marbletite Manufacturing Co.; Supro Corporation; Union Carbide Corporation; Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc., individually and successor-in-interest to Gouverneur Tale Company, Inc.; and W.W. Gay Mechanical Construction Co. In addition and also pursuant to Fabre, any damages which may be awarded to Plaintiff's are subject to apportionment by the jury of the total fault of all participants, including but notlimited to any and all non-defendant employers of Plaintiffs’, including but not limited to those employers identified in Plaintiffs’ Exposure Sheets, and identified by Plaintiffs’ or by Plaintiffs’ witnesses in any deposition taken in this action or to be taken in this action. Furthermore and also pursuant to Fabre, any damages which may be awarded to the Plaintiffs are subject to apportionment by the jury of the total fault of all participants, including but not limited to any and all manufacturers, suppliers, and/or distributors of products named or identified by Plaintiffs in Plaintiffs’ Complaint and Exposure Sheets, any and all amendments or supplements thereto, and any and all manufacturers, suppliers, and/or distributors of products named or identified by Plaintiffs or by Plaintiffs’ witnesses in any deposition taken in this action or to be taken in this action, specifically including but not limited to the following products, manufacturers, distributors, and/or suppliers: Acousti Engineering Company of Florida; Certainteed Corporation; Honeywell International, Inc., individually and as successor in interest to Allied-Signal, Inc., and Bendix Corporation; Kaiser Gypsum Company, Inc.; Mckesson Chemical Company; Pfizer, Inc.; Premix-Marbletite Manufacturing Co.; Supro Corporation; Union Carbide Corporation; Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc., individually and successor-in-interest to Gouverneur Tale Company, Inc.; and W.W. Gay Mechanical Construction Co. Accordingly, this Defendant is entitled to an apportionment of damages pursuant to Florida Statute § 768.81 and Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) for the negligence and strict liability of the above-named entities, Defendant reserves the right to amend in order to identify such parties or non-parties to be included on the verdict form pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996). 21. Res Judicata/Collateral Estoppel: Defendant affirmatively alleges these Plaintiffshave previously litigated these issues with this Defendant and therefore these claims are barred by the doctrines of res judicata and/or collateral estoppel. 22. Safe Work Area: If the Plaintiffs sustained the injuries and/or damages as alleged, which is specifically denied, then said injuries and/or damages were proximately caused by the acts and/or omissions of the Plaintiffs’ employers with respect to the maintenance of a healthy and safe work site and environment, which were under such employer’s exclusive control and possession. 23. Governmental Immunity: If it is shown that the Plaintiffs used any product sold or supplied by J-MM, which is specifically denied, and if it is shown that such product was supplied to, by or on behalf of the United States Government, then J-MM raises any immunity from suit or liability conferred upon the United States Government and/or J-MM, which may arise under the circumstances. 24, Fellow Servant: If Plaintiffs sustained the injuries and/or damages as alleged, then J-MM alleges that such injuries and damages were due to the negligence of Plaintiffs’ fellow servants engaged in the course of common employment with Plaintiffs, and that such negligence of the fellow servants bars this civil action. 25. Learned Intermediaries: Plaintiffs and/or his employers were sophisticated users of, or learned intermediaries, with respect to the use of the products to which Plaintiffs were allegedly exposed. Therefore, J-MM is not liable to Plaintiffs. 26. Alternative Design Unavailable: The alleged products sold or supplied by J-MM of which Plaintiffs complain, with respect to which J-MM admits no liability, are not defective in design or manufacture because at the time such products allegedly left control of J-MM, apractical and technically feasible alternative design or formulation was not available without substantially impairing the usefulness or intended purpose of such products. 27. Section 774.201 et. seq.: Plaintiffs’ claim may be barred by Fla. Stat. Chapter 774.201 et. seq., the Asbestos and Silica Compensation Fairness Act. Plaintiffs are barred by one, or more, of the following: a. Plaintiffs are barred from recovery because the evidence of physical impairment, including the written reports and test results, if any, were not oblained in accordance with Fla. Stat. §774.204, b. Plaintiffs are barred from recovery for his/her failure to file a verified written report disclosing collateral source payments received and to be received in the future. Fla, Stat. §774.207. c. Plaintiffs have failed to comply with all requirements set forth in Section 774.208; Liability rules applicable to protect sellers, renters and lessors. 28. Encapsulated Product: The products that contained asbestos that were allegedly supplied, or otherwise placed in the stream of commerce by the Defendant were made so that the asbestos fibers were encapsulated in other material which would prevent the release of injury- producing levels of such fibers upon the use of said product. 29. Punitive Damages Inappropriate: Any claim for punitive damages is barred by Section 774.207, Fla. Stat. (2007). 30. Improper Venue: Venue is improper in this action and Defendant reserves its right to move for dismissal and/or transfer of the action based on improper and/or inconvenient venue and/or the doctrine of forum non conveniens. 31. Failure To State A Claim: Plaintiffs’ Complaint and each of its causes of actionfails to state a claim upon which relief may be granted against Defendant. In addition, Plaintiffs’ Complaint is subject to dismissal for improper commingling of allegations against all defendants such that it is impossible for any individual defendant to answer Plaintiffs’ overly broad and vague allegations directed against all defendants. 32. Federal Preemption: Plaintiffs’ claims are preempted by federal law and are therefore barred under Florida law. 33. If it should be proven at the time of trial that the plaintiff was exposed to asbestos containing products alleged to have been designed, sold, distributed, supplied and/or utilized by Defendant, such products were accompanied by adequate warnings which were in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. 34, J-MM reserves the right to amend its answer and adopt additional defenses which have been or will be served by other defendants. In addition J-MM will rely upon further defenses which become available or appear during discovery proceedings in these actions and hereby specifically reserve the right to amend the answer for the purposes of asserting any such additional defenses. 35. Defendant incorporates by reference, as if more fully set forth at length herein, all defenses, both affirmative and otherwise, raised, pleaded or asserted by all other answering defendants and third party defendants. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 17, 2020, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal and served via File & Serve Xpress which will send electronic notice to all counsel of record on the attached Service List./s/ Jeffrey W. Kirsheman yn JEFFREY W. KIRSHEMAN, ESQUIRE Florida Bar No. 0059341 Fisher Rushmer, P.A. Post Office Box 3753 Orlando, FL 32802-3753 Tel: 407-843-2111 / Fax: 407-422-1080 Primary: jkirsheman@fisherlawfirm.com Secondary: mmontanez@fisherlawfirm.com Attorneys for Defendant, J-M Manufacturing Company, Inc,SERVICE LIST Counsel for Plaintiffs JOEL CARL ROGERS and HILDA ROGERS: Rebecca S, Vinocur J. Andrew Sealey Rebecca S, Vinocur, P.A. Simmons Hanly Conroy 5915 Ponce De Leon Blvd., Suite 14 One Court Street Coral Gables, FL 33146 Alton, IL 62002 rvinocur@rsv-law.com, ayala@rsv-law.com Counsel for ACOUSTI ENGINEERING COMPANY OF FLORIDA: Joseph A. Lane Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Joe.lane@lowndes-law.com, litcontrol@lowndes-law.com, terri. bagley@lowndes-law.com Counsel for HONEYWELL INTERNATIONAL, INC. (sued individually and as successor in interest to Allied-Signal, Inc., and Bendix Corporation): Caroline M. Iovino Anthony N. Upshaw McDermott Will & Emery, LLP 333 Avenue of the Americas, Suite 4500 Miami, FL 33131-4338 clovino@mwe.com, aupshaw@mwe.com, mblancoaleman@mwe.com, mmoya@mwe.com Counsel for MCKESSON CHEMICAL COMPANY: Michelle Gervais-Kullman Blank Rome, LLP 201 East Kennedy Blvd., Suite 520 Tampa, FL 33602 mgervais@blankrome.com, jneel@blankrome.com Counsel for PFIZER, INC.: Susan J. Cole, B.C.S. Melanie Chung-Tims Amanda Cachaldora Bice Cole Law Firm, P.L. 999 Ponce de Leon Blvd., Suite 710 Coral Gables, FL 33134 chungtims@bicecolelaw.com, cachaldora@bicolelaw.com, asbestosservice@bicecolelaw.comCounsel for PREMIX-MARBLETITE MANUFACTURING CO.: Edward J. Briscoe Peter J. Melaragno Fowler White Burnett, P.A. Espiritu Santo Plaza 14" Floor 1395 Brickell Avenue Miami, FL 33131 ebriscoe@fowler-white.com, shoag@fowler-white.com, pmelaragno@fowler-white,com Counsel for VANDERBILT MINERALS, LLC, f/k/a VANDERBILT COMPANY, INC., Individually and successor-in-interest to GOUVERNEUR TALC COMPANY, INC.: Eduardo J. Medina Foley & Mansfield, PLLP 4770 Biscayne Blvd, Suite 1000 Miami, FL 33137 courtmailmiami@foleymansfield.com, emedina@foleymansfield.com L:\WWK\JMM-Rogers\PLEADING\-MM (FL) Roger - ANSWER - AER - final.docx