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Filing # 101733709 E-Filed 01/15/2020 05:45:09 PM
IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JOE CARL ROGERS and
HILDA ROGERS, his wife,
Plaintiffs,
v.
ACOUSTI ENGINEERING ee
COMPANY OF FLORIDA., et al., CASE NO. 19-025692 (27)
Defendants.
DEFENDANT PREMIX-MARBLETITE MANUFACTURING CO.'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFFS' COMPLAINT
COMES NOW Defendant, PREMIX-MARBLETITE MANUFACTURING CO.
(“PREMIX” or “Defendant”), by and through undersigned counsel, and hereby files its Answer and
Affirmative Defenses to Plaintiffs' Complaint (hereinafter the "Complaint"), and states as follows:
ANSWER
1. In response to Paragraphs 1 and 2 of the Complaint, PREMIX admits that Joe Carl
Rogers and Hilda Rogers (collectively the "Plaintiffs") are the Plaintiffs named in this action and that
Plaintiffs' Complaint purports to state an action for damages in excess of fifteen thousand dollars
($15,000.00), but PREMIX is without knowledge to admit or deny the remaining allegations and
denies generally that the Complaint states a cause of action against PREMIX or that PREMIX is
liable or responsible for any alleged injuries or damages to Plaintiffs, and demands strict proof
thereof.
2. In response to Paragraph 3(h) of the Complaint as directed to PREMIX, PREMIX
admits that it was served in this matter through Corporate Creations Network, Inc. The remaining
allegations of Paragraph 3 of the Complaint do not pertain and are not directed to PREMIX.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14™ FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/15/2020 05:45:08 PM.****CASE NO. 19-025692 (27)
Accordingly, no response is required by PREMIX. Ifa response by PREMIX is deemed necessary,
then PREMIX denies the allegations and demands strict proof thereof.
3. In response to Paragraphs 4(a) and 5 of the Complaint as directed to PREMIX,
PREMIX admits it is a Florida corporation with its principal place of business in Florida.
4. PREMIX denies the allegations contained in Paragraphs 4 (b-l), 6 through 12, 14
through 17, 19 through 27, and 35 through 43 (including all subparagraphs) of the Complaint as they
may be directed to PREMIX, specifically any allegation that Plaintiffs have suffered or will suffer
injuries as a result of any conduct of PREMIX, that Plaintiff Joe Carl Rogers ("Plaintiff") was
exposed to asbestos from any PREMIX product, or that Plaintiffs are entitled to damages from
PREMIX in any amount or for any reason whatsoever, and demands strict proof thereof at trial.
5. There are no paragraphs numbered 28 through 33 in the Complaint.
6. In response to Paragraphs 13, 18, and 34 of the Complaint, which re-allege all
preceding Paragraphs, PREMIX restates its answers herein to said preceding Paragraphs.
7. PREMIX denies any relief or prayer for damages contained in Plaintiffs' “Wherefore”
clauses to the extent directed to Defendant.
8. All allegations not specifically admitted herein are denied.
AFFIRMATIVE DEFENSES
1. The Complaint fails to state a claim upon which relief can be granted against
PREMIX.
2. The claims alleged in the Complaint are barred or are otherwise limited by operation
of any applicable statutes of limitation and/or statutes of repose.
3. The claims alleged in the Complaint are barred by the doctrines of res judicata and/or
collateral estoppel.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
4. Plaintiff was not exposed to and never used any product manufactured, sold, or
supplied by PREMIX, and Plaintiffs cannot show that any alleged damages were proximately caused
by exposure to any products manufactured, distributed or sold by PREMIX.
5. The claims alleged in the Complaint are barred in whole or in part by the contributory
negligence of Plaintiff for reduced by the comparative negligence of Plaintiff.
6. The claims alleged in the Complaint are barred in whole or in part by Plaintiff's
voluntary assumption of a known risk of harm or a risk of harm of which Plaintiff knew or should
have known.
7. If Plaintiff either used or was exposed to products manufactured, sold or supplied by
PREMIX, and if it is shown that such use and/or exposure is causally related to any injuries or
damages alleged in the Complaint, all of which is specifically denied, then it is averred that Plaintiff
was negligent generally and in the following respects:
a. In failing to use proper safety equipment, which was available to Plaintiff,
including but not limited to a respirator approved by the U.S. Bureau of Mines;
b. In failing to demand that proper safety equipment be supplied to Plaintiff,
including but not limited to a respirator approved by the U.S. Bureau of Mines;
c. In failing to read the instructions and/or warnings distributed by PREMIX in
connection with the sale or use of its products, including but not limited to instructions and/or
warnings regarding use of a respirator approved by the U.S. Bureau of Mines;
d. By using improper techniques and methods in the use and application of
PREMIX products; and
e. In otherwise failing to exercise due care and caution under the circumstances.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
8. If Plaintiff used, or was exposed to, any product for which PREMIX may be legally
responsible, which is specifically denied, the injuries or damages alleged in the Complaint were
caused by an unintended or improper use of such products for which PREMIX is not liable or
responsible.
9. If it is shown that Plaintiff used, or was exposed to, any product sold or supplied by
PREMIX, and if it is shown that such products caused or contributed to the injuries or damages
alleged in the Complaint, all of which are specifically denied, then it is averred that the products sold
or supplied by PREMIX were abused, misused, or otherwise substantially changed or altered by
persons or parties other than PREMIX and that PREMIX is not liable.
10. The injuries or damages alleged in the Complaint were caused by the intervening acts
or superseding negligence of persons, parties, or entities over whom PREMIX had no control or
responsibility, and for whose actions PREMIX is not liable.
11. Any injuries or damages alleged in the Complaint were proximately caused by the
acts and/or omissions of Plaintiff's employers with respect to the maintenance of a healthy and safe
work site and environment, which were under such employers’ exclusive control and possession.
12. If it is shown that Plaintiff used, or was exposed to, any products sold or supplied by
PREMIKX, and if it is shown that such products or equipment caused or contributed to the injuries or
damages alleged in the Complaint, all of which are denied, then it is averred that PREMIX neither
knew at the time, nor reasonably should have known in light of the available medical, scientific, or
other information, that any product of the type or nature referred to in the Complaint which allegedly
was manufactured, sold, or supplied by PREMIX was hazardous or constituted a reasonably
foreseeable risk of harm in the normal and expected use of such products.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
13. The injuries or damages alleged in the Complaint arose in whole or in part from one
or more causes or circumstances having nothing to do with PREMIX, and not as a result of any
exposure to any products manufactured, sold, or supplied by PREMIX.
14. | PREMIX is relieved of liability because other, intervening and superseding causes of
loss, injury, or damage alleged in the Complaint obtain, e.g., the failure of labor unions or other
entities to provide training and proper protective equipment to assure a safe working environment, or
to warn workers of possible health hazards associated with exposure to asbestos.
15. _ Exposure, if any, of Plaintiff to asbestos products allegedly manufactured or sold by
this Defendant, was so minimal as to be insufficient to establish to a reasonable degree of certainty
or probability that the injuries and damages complained of resulted from any exposure to, or defects
from, products allegedly manufactured, sold or distributed by PREMIX.
16. This action cannot be maintained on the basis of substantive or jurisdictional statutes,
or legal theories, which did not exist prior to the time of the occurrence giving rise to Plaintiffs’
claims against PREMIX, and the application of such legal theories to this action would be
unconstitutional.
17. Venue in this county is improper. Alternatively, venue in this county is inconvenient
pursuant to the doctrine of forum non conveniens, because the convenience of the parties or
witnesses and/or the interest of justice warrants transfer to another Florida county or, alternatively,
dismissal so that the action may be re-filed in another State.
18. | Apportionment of damages, if any, should be accomplished in accordance with the
provisions of Fla. Stat. § 768.81(3), and the Court should enter judgment against each party (whether
a party to this litigation or not) on the basis of such party's or non-party’s percentage of fault and not
on the basis of the doctrine of joint and several liability, which has been abrogated in Florida.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
19. Pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), 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 the following entities or persons: Plaintiff regarding his negligence and
comparative fault with respect to his employment, self-employment, and/or personal activities,
including but not limited to his failure to heed caution statements and follow proper safety
procedures and/or utilize proper protective clothing and equipment; Employers of Plaintiff, including
but not limited to any employers as relevant to employment, job sites and/or locations identified in
the Exposure Sheets and Sworn Information Form submitted in this action, including the Duval
County Public School System; Premises owner(s) of property upon which the Plaintiff was allegedly
exposed to asbestos or otherwise relevant to Plaintiff's alleged exposure in this case, including but
not limited to any premises owner relevant to employment listed above and/or any other premises
which may be revealed through discovery; Contractors and/or subcontractors and/or independent
contractors who performed work at property upon which the Plaintiff was allegedly exposed to
asbestos; Co-Defendants named in the Complaint and any amendments thereto, and named in any
related actions filed on behalf of Plaintiffs, including but not limited to: Acousti Engineering
Company of Florida; Certainteed Corporation; Honeywell International, Inc. (sued individually and
as s/i/i to Allied-Signal, Inc. and The Bendix Corporation); J-M Manufacturing Company, Inc.;
Kaiser Gypsum Company, Inc.; McKesson Chemical Company; Pfizer, Inc.; Supro Corporation;
Union Carbide Corporation Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc., individually
and as s/i/i to Gouvemmeur Talc Company, Inc.; and W.W. Gay Mechanical Construction Co.; other
manufacturers, distributors, and/or suppliers of products of the type identified by Plaintiffs
(including but not limited to bankrupt entities), both in this case and in any related actions filed on
behalf of Plaintiffs, specifically further including but not limited to: W.R. Grace, Owens-Corning,
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
Kaylo, Johns-Manville, Raybestos, Abex, Philip Carey, Carey Canadian-Mines, Ltd., Carey
Canadian, Georgia-Pacific, Lake Asbestos of Quebec Ltd., Carey Canadian Asbestos Corporation,
Carey Canada, Inc., Gold Bond, National Gypsum, Hedman, Ambrosia, Thompson-Heyward, and
USG Corporation (including United States Gypsum Co., USG Interiors, and L&W Supply
Corporation); any manufacturers, distributors, and/or suppliers that were previously defendants to
this action but have been dismissed (including but not limited to bankrupt entities); any
manufacturers, distributors, and/or suppliers that were defendants at any time in any related actions
filed on behalf of Plaintiffs; any manufacturers, distributors, and/or suppliers that are currently
defendants to this action but are subsequently dismissed; and any other additional persons or entities
revealed through discovery (including but not limited to bankrupt entities). PREMIX specifically
reserves the right to amend its affirmative defenses in order to identify such entities to be included
on the verdict form pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla.
1996).
20. Plaintiffs failed to mitigate damages.
21. — Theclaims alleged in the Complaint are barred by prior settlement and/or release with
this Defendant.
22. The claims alleged in the Complaint are barred in whole or in part by the doctrine of
laches or estoppel.
23. Plaintiff's employers were, or are, sophisticated users of the products at issue, and
knew, or should have known, of any dangers or risks associated with use of said products, if any,
and/or exposure to asbestos dust and/or fibers, and should have conveyed that information to
Plaintiff. The acts and/or omissions of the aforesaid employers are the sole proximate cause of any
injuries or damages alleged in the Complaint.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
24. Pursuant to §768.76, Fla. Stat., PREMIX is entitled to a set-off for all benefits paid,
or payable to the Plaintiffs or previously to the Plaintiffs from collateral sources.
25. | PREMIX is not a joint tortfeasor with any other defendants in this action and thus
may not be held jointly liable with other defendants.
26. — The doctrine of joint and several liability does not apply to this action because the
doctrine was abrogated before the causes of action alleged in the Complaint accrued.
27. | PREMIX’s wamings and labels complied with federal and state regulations, standards
and laws. Accordingly, the claims alleged in the Complaint are preempted by federal and/or state
law.
28. The products of PREMIX were not defective in design or manufacture, and any
alleged defect was a generic aspect of such product which could not be eliminated without
substantially compromising the usefulness or desirability of such products, as recognized by the
ordinary person with ordinary knowledge in the community.
29. The subject products of PREMIX are not defective in design or manufacture because
at the time they left the control of PREMIX, there was no practical or technically feasible alternative
design or formulation available which would not have substantially impaired the effectiveness or
utility of the products.
30. At the time the subject product(s) or equipment was manufactured, the state of the art
or technological and/or medical knowledge did not give PREMIX sufficient information regarding
the alleged risks, or available and practical remediability of said risks, of exposure to the subject
product(s), relieving PREMIX of liability in whole or in part.
31. Imposition of strict liability in the absence of such state of the art or technical and/or
medical knowledge as to apprise PREMIX of the alleged risks, or of available and practical
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
remediability of said risks of exposure to the subject product(s) prior to their sale, would constitute
an impermissible impairment of contract.
32. Imposition of strict liability in the absence of such state of the art or technical and/or
medical knowledge as to apprise PREMIX of the alleged risks, or of available and practical
remediability of said risks of exposure to the subject product(s) prior to their sale, would deny
PREMIX substantive and due process rights.
33. Thenumber of different products or agents to which Plaintiff was allegedly exposed,
and the lack of evidence as to the amount of actual exposure to each product or agent makes it
impossible to determine, and to a sufficient degree of legal certainty, the alleged causal connection
between the alleged injuries and said products or agents, if any.
34. The damages claimed in the Complaint which have not accrued are speculative and
uncertain.
35. The subject product(s) were industrial products and not consumer products. The
subject product(s) at issue exceeded or satisfied industry standards, as well as the ordinary
expectations of the industrial consumers of such products at the time of their manufacture,
distribution and/or sale.
36. In the absence of identification of exposure to specific product(s) manufactured by
PREMIX which caused any injury or damages as alleged in the Complaint, imposition of liability on
this Defendant would deprive PREMIX of its constitutional rights to substantive and procedural due
process guaranteed by the Fourteenth Amendment of the United States Constitution and Article lof
the Florida Constitution.
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
37. Pursuant to §4 of the Asbestos and Silica Compensation Faimess Act, Plaintiffs'
recovery is barred because factors other than asbestos exposure were more probably the cause of any
injury or damages as alleged in the Complaint.
38. There is no cognizable strict liability claim based upon failure to warn or a
manufacturer’s failure to provide safety equipment with its products.
39. To predicate a judgment against the Defendant based on a contemporary theory of
law for events which occurred as long ago as the 1960s deprives the Defendant of due process of law
under both the United States and Florida Constitutions.
40. The products of this Defendant, if any, were marketed and sold to manufacturers or
buyers who were sophisticated and knowledgeable concerning the use and hazards of asbestos, if
any, when such products were sold, thereby obviating any duty to warn. The knowledge of the
manufacturers and purchasers to whom Defendant’s products were sold was equal to or superior to
that of the Defendant. Therefore, Defendant had no duty to warn Plaintiff or anyone associated with
Plaintiff of possible health hazards associated with exposure to asbestos. Defendant reasonably
relied upon the sophisticated employers, and is not responsible for the failure of employers to warn
or take proper precautions for their employees.
41. The Complaint must be dismissed for failure to submit, within the relevant time frame
as required by §774.204 and §774.205, Florida Statutes, both a written report and supporting test
results constituting prima facie medical evidence that Plaintiff was diagnosed with an asbestos-
related physical impairment meeting the requirements set forth in §774.204 and §774.205, Florida
Statutes. Alternatively, Plaintiffs’ purported prima facie evidence is inadequate in that it fails to
include some or all of the requisite elements for the asbestos-related physical impairment alleged, as
set forth in §774.204 and §774.205, Florida Statutes.
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FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
42. The Complaint must be dismissed because the written report and supporting test
results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set
forth in §774.204 and §774.205, Florida Statutes, were not obtained from a “qualified physician,” as
that term is defined in §774.204 and §774.205.
43. | The Complaint must be dismissed because the written report and supporting test
results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set
forth in §774.204 and §774.205, Florida Statutes, were obtained through examinations and tests that
do not comply with the requirements of §774.204 and §774.205 setting forth the technical
recommendations for examinations, testing procedures, quality assurance, quality control, and
equipment.
44. | The Complaint must be dismissed because the written report and supporting test
results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set
forth in §774.204 and §774.205, Florida Statutes, were obtained through examinations and tests that
violated applicable laws, regulations, licensing requirements, and/or medical codes of practice in
contravention of §774.204 and §774.205.
45. | The Complaint must be dismissed because the prima facie evidence, ifany, submitted
on behalf of Plaintiffs pursuant to the above-referenced requirements set forth in §774.204 and
§774.205, Florida Statutes, was obtained under the condition that Plaintiffs retain legal services in
exchange for the examination, test, or screening underlying the alleged prima facie evidence, which
is a violation of §774.204 and §774.205.
46. The Complaint must be dismissed because Plaintiffs have failed to provide this
Defendant with a sworn information form as required by §774.205(3), Florida Statutes.
Alternatively, the purported sworn information form submitted on behalf of Plaintiffs are inadequate
ll
FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
in that it fails to include some or all of the requisite elements as set forth in (3)§774.205, Florida
Statutes.
47. Ifthere is any connection between Plaintiff's purported exposure to various products
and agents during his lifetime, and any injury or damages as alleged in the Complaint, which
connection PREMIX does not concede, the number of such products or agents and the lack of
probative evidence as to the amount or extent of actual exposure to each product or agent makes it
impossible to determine to a requisite degree of legal certainty whether there is a proximate causal
connection between the product and any injury or damages as alleged in the Complaint.
48. Plaintiffs have failed to provide PREMIX with timely notice of the claims as alleged
in the Complaint.
49. This action is barred by the Plaintiffs’ failure to join indispensable parties as
Defendants, including but not limited to the Manville Asbestos Disease Compensation Fund.
50. To the extent that Plaintiffs purport to state a claim for misrepresentation or fraud, or
any claim other than negligent failure to warn or strict liability, such claims are barred by the
applicable Omnibus Order or other prior applicable Orders of this Court or are barred for failure to
plead each with particularity.
51. Plaintiffs have failed to state a cause of action against Defendant for negligence
and/or negligent failure to warn.
52. Plaintiffs have failed to state a cause of action against Defendant for strict liability
including failure to warn.
53. Plaintiffs have failed to state a cause of action against Defendant for failure to
exercise reasonable care.
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FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
54. Plaintiffs’ allegations that Defendant owed a duty to Plaintiff to provide protective
clothing and equipment with respect to Defendant’s products do not support recovery in negligence
under Florida law because Florida imposes no such duty upon manufacturers.
55. Any allegations by Plaintiffs that Defendant owed a duty to Plaintiff to develop,
publish, adopt and disseminate safe methods of service, handling and installing asbestos materials or
asbestos-containing products or equipment do not support recovery in negligence under Florida law
because Florida imposes no such duty upon manufacturers.
56. Any allegations by Plaintiffs that Defendant owed a duty to Plaintiff to develop and
place on the market non-asbestos containing materials with respect to Defendant’s products do not
support recovery in negligence under Florida law because Florida imposes no such duty upon
manufacturers.
57. Plaintiffs have failed to state a cause of action against Defendant for gross negligence,
carelessness, and/or willful omissions.
58. Defendant did not owe a duty of care to Plaintiff.
59. Plaintiffs have failed to state a cause of action for loss of consortium.
60. To the extent that Plaintiffs purport to state a claim for punitive damages, such
damages in this action are barred by Florida's Asbestos and Silica Compensation Fairness Act,
Chapter 774, Florida Statutes.
61. | PREMIX reserves the right to assert against the Plaintiffs, the co-defendants and any
other subsequent defendants or third-party defendants, any other affirmative defenses that may
become apparent during the development of this action.
62. | PREMIX hereby adopts and incorporates by reference all applicable Affirmative
Defenses filed herein by all other Defendants in this cause.
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FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27)
DEMAND FOR JURY TRIAL
PREMIX hereby demands a jury trial for all issues triable as of right to a jury.
WHEREFORE PREMIX prays that the Plaintiffs' Complaint be dismissed and that the
Plaintiffs take nothing by reason of the Complaint; that PREMIX be dismissed; and that PREMIX be
granted such other and further relief as is deemed necessary and proper.
Respectfully submitted,
/s/ Peter J. Melaragno
Edward J. Briscoe
Fla. Bar No. 109691
Peter J. Melaragno
Fla. Bar No. 174432
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to all counsel of
record via the E-Portal system and File & ServeXpress this 15th day of January, 2020.
4s/ Peter J. Melaragno
Peter J. Melaragno
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FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200
Preview
Filing # 101733709 E-Filed 01/15/2020 05:45:09 PM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JOE CARL ROGERS and HILDA ROGERS, his wife, Plaintiffs, v. ACOUSTI ENGINEERING ee COMPANY OF FLORIDA., et al., CASE NO. 19-025692 (27) Defendants. DEFENDANT PREMIX-MARBLETITE MANUFACTURING CO.'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' COMPLAINT COMES NOW Defendant, PREMIX-MARBLETITE MANUFACTURING CO. (“PREMIX” or “Defendant”), by and through undersigned counsel, and hereby files its Answer and Affirmative Defenses to Plaintiffs' Complaint (hereinafter the "Complaint"), and states as follows: ANSWER 1. In response to Paragraphs 1 and 2 of the Complaint, PREMIX admits that Joe Carl Rogers and Hilda Rogers (collectively the "Plaintiffs") are the Plaintiffs named in this action and that Plaintiffs' Complaint purports to state an action for damages in excess of fifteen thousand dollars ($15,000.00), but PREMIX is without knowledge to admit or deny the remaining allegations and denies generally that the Complaint states a cause of action against PREMIX or that PREMIX is liable or responsible for any alleged injuries or damages to Plaintiffs, and demands strict proof thereof. 2. In response to Paragraph 3(h) of the Complaint as directed to PREMIX, PREMIX admits that it was served in this matter through Corporate Creations Network, Inc. The remaining allegations of Paragraph 3 of the Complaint do not pertain and are not directed to PREMIX. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14™ FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/15/2020 05:45:08 PM.****CASE NO. 19-025692 (27) Accordingly, no response is required by PREMIX. Ifa response by PREMIX is deemed necessary, then PREMIX denies the allegations and demands strict proof thereof. 3. In response to Paragraphs 4(a) and 5 of the Complaint as directed to PREMIX, PREMIX admits it is a Florida corporation with its principal place of business in Florida. 4. PREMIX denies the allegations contained in Paragraphs 4 (b-l), 6 through 12, 14 through 17, 19 through 27, and 35 through 43 (including all subparagraphs) of the Complaint as they may be directed to PREMIX, specifically any allegation that Plaintiffs have suffered or will suffer injuries as a result of any conduct of PREMIX, that Plaintiff Joe Carl Rogers ("Plaintiff") was exposed to asbestos from any PREMIX product, or that Plaintiffs are entitled to damages from PREMIX in any amount or for any reason whatsoever, and demands strict proof thereof at trial. 5. There are no paragraphs numbered 28 through 33 in the Complaint. 6. In response to Paragraphs 13, 18, and 34 of the Complaint, which re-allege all preceding Paragraphs, PREMIX restates its answers herein to said preceding Paragraphs. 7. PREMIX denies any relief or prayer for damages contained in Plaintiffs' “Wherefore” clauses to the extent directed to Defendant. 8. All allegations not specifically admitted herein are denied. AFFIRMATIVE DEFENSES 1. The Complaint fails to state a claim upon which relief can be granted against PREMIX. 2. The claims alleged in the Complaint are barred or are otherwise limited by operation of any applicable statutes of limitation and/or statutes of repose. 3. The claims alleged in the Complaint are barred by the doctrines of res judicata and/or collateral estoppel. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 4. Plaintiff was not exposed to and never used any product manufactured, sold, or supplied by PREMIX, and Plaintiffs cannot show that any alleged damages were proximately caused by exposure to any products manufactured, distributed or sold by PREMIX. 5. The claims alleged in the Complaint are barred in whole or in part by the contributory negligence of Plaintiff for reduced by the comparative negligence of Plaintiff. 6. The claims alleged in the Complaint are barred in whole or in part by Plaintiff's voluntary assumption of a known risk of harm or a risk of harm of which Plaintiff knew or should have known. 7. If Plaintiff either used or was exposed to products manufactured, sold or supplied by PREMIX, and if it is shown that such use and/or exposure is causally related to any injuries or damages alleged in the Complaint, all of which is specifically denied, then it is averred that Plaintiff was negligent generally and in the following respects: a. In failing to use proper safety equipment, which was available to Plaintiff, including but not limited to a respirator approved by the U.S. Bureau of Mines; b. In failing to demand that proper safety equipment be supplied to Plaintiff, including but not limited to a respirator approved by the U.S. Bureau of Mines; c. In failing to read the instructions and/or warnings distributed by PREMIX in connection with the sale or use of its products, including but not limited to instructions and/or warnings regarding use of a respirator approved by the U.S. Bureau of Mines; d. By using improper techniques and methods in the use and application of PREMIX products; and e. In otherwise failing to exercise due care and caution under the circumstances. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 8. If Plaintiff used, or was exposed to, any product for which PREMIX may be legally responsible, which is specifically denied, the injuries or damages alleged in the Complaint were caused by an unintended or improper use of such products for which PREMIX is not liable or responsible. 9. If it is shown that Plaintiff used, or was exposed to, any product sold or supplied by PREMIX, and if it is shown that such products caused or contributed to the injuries or damages alleged in the Complaint, all of which are specifically denied, then it is averred that the products sold or supplied by PREMIX were abused, misused, or otherwise substantially changed or altered by persons or parties other than PREMIX and that PREMIX is not liable. 10. The injuries or damages alleged in the Complaint were caused by the intervening acts or superseding negligence of persons, parties, or entities over whom PREMIX had no control or responsibility, and for whose actions PREMIX is not liable. 11. Any injuries or damages alleged in the Complaint were proximately caused by the acts and/or omissions of Plaintiff's employers with respect to the maintenance of a healthy and safe work site and environment, which were under such employers’ exclusive control and possession. 12. If it is shown that Plaintiff used, or was exposed to, any products sold or supplied by PREMIKX, and if it is shown that such products or equipment caused or contributed to the injuries or damages alleged in the Complaint, all of which are denied, then it is averred that PREMIX neither knew at the time, nor reasonably should have known in light of the available medical, scientific, or other information, that any product of the type or nature referred to in the Complaint which allegedly was manufactured, sold, or supplied by PREMIX was hazardous or constituted a reasonably foreseeable risk of harm in the normal and expected use of such products. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 13. The injuries or damages alleged in the Complaint arose in whole or in part from one or more causes or circumstances having nothing to do with PREMIX, and not as a result of any exposure to any products manufactured, sold, or supplied by PREMIX. 14. | PREMIX is relieved of liability because other, intervening and superseding causes of loss, injury, or damage alleged in the Complaint obtain, e.g., the failure of labor unions or other entities to provide training and proper protective equipment to assure a safe working environment, or to warn workers of possible health hazards associated with exposure to asbestos. 15. _ Exposure, if any, of Plaintiff to asbestos products allegedly manufactured or sold by this Defendant, was so minimal as to be insufficient to establish to a reasonable degree of certainty or probability that the injuries and damages complained of resulted from any exposure to, or defects from, products allegedly manufactured, sold or distributed by PREMIX. 16. This action cannot be maintained on the basis of substantive or jurisdictional statutes, or legal theories, which did not exist prior to the time of the occurrence giving rise to Plaintiffs’ claims against PREMIX, and the application of such legal theories to this action would be unconstitutional. 17. Venue in this county is improper. Alternatively, venue in this county is inconvenient pursuant to the doctrine of forum non conveniens, because the convenience of the parties or witnesses and/or the interest of justice warrants transfer to another Florida county or, alternatively, dismissal so that the action may be re-filed in another State. 18. | Apportionment of damages, if any, should be accomplished in accordance with the provisions of Fla. Stat. § 768.81(3), and the Court should enter judgment against each party (whether a party to this litigation or not) on the basis of such party's or non-party’s percentage of fault and not on the basis of the doctrine of joint and several liability, which has been abrogated in Florida. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 19. Pursuant to Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), 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 the following entities or persons: Plaintiff regarding his negligence and comparative fault with respect to his employment, self-employment, and/or personal activities, including but not limited to his failure to heed caution statements and follow proper safety procedures and/or utilize proper protective clothing and equipment; Employers of Plaintiff, including but not limited to any employers as relevant to employment, job sites and/or locations identified in the Exposure Sheets and Sworn Information Form submitted in this action, including the Duval County Public School System; Premises owner(s) of property upon which the Plaintiff was allegedly exposed to asbestos or otherwise relevant to Plaintiff's alleged exposure in this case, including but not limited to any premises owner relevant to employment listed above and/or any other premises which may be revealed through discovery; Contractors and/or subcontractors and/or independent contractors who performed work at property upon which the Plaintiff was allegedly exposed to asbestos; Co-Defendants named in the Complaint and any amendments thereto, and named in any related actions filed on behalf of Plaintiffs, including but not limited to: Acousti Engineering Company of Florida; Certainteed Corporation; Honeywell International, Inc. (sued individually and as s/i/i to Allied-Signal, Inc. and The Bendix Corporation); J-M Manufacturing Company, Inc.; Kaiser Gypsum Company, Inc.; McKesson Chemical Company; Pfizer, Inc.; Supro Corporation; Union Carbide Corporation Vanderbilt Minerals, LLC, f/k/a Vanderbilt Company, Inc., individually and as s/i/i to Gouvemmeur Talc Company, Inc.; and W.W. Gay Mechanical Construction Co.; other manufacturers, distributors, and/or suppliers of products of the type identified by Plaintiffs (including but not limited to bankrupt entities), both in this case and in any related actions filed on behalf of Plaintiffs, specifically further including but not limited to: W.R. Grace, Owens-Corning, FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) Kaylo, Johns-Manville, Raybestos, Abex, Philip Carey, Carey Canadian-Mines, Ltd., Carey Canadian, Georgia-Pacific, Lake Asbestos of Quebec Ltd., Carey Canadian Asbestos Corporation, Carey Canada, Inc., Gold Bond, National Gypsum, Hedman, Ambrosia, Thompson-Heyward, and USG Corporation (including United States Gypsum Co., USG Interiors, and L&W Supply Corporation); any manufacturers, distributors, and/or suppliers that were previously defendants to this action but have been dismissed (including but not limited to bankrupt entities); any manufacturers, distributors, and/or suppliers that were defendants at any time in any related actions filed on behalf of Plaintiffs; any manufacturers, distributors, and/or suppliers that are currently defendants to this action but are subsequently dismissed; and any other additional persons or entities revealed through discovery (including but not limited to bankrupt entities). PREMIX specifically reserves the right to amend its affirmative defenses in order to identify such entities to be included on the verdict form pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996). 20. Plaintiffs failed to mitigate damages. 21. — Theclaims alleged in the Complaint are barred by prior settlement and/or release with this Defendant. 22. The claims alleged in the Complaint are barred in whole or in part by the doctrine of laches or estoppel. 23. Plaintiff's employers were, or are, sophisticated users of the products at issue, and knew, or should have known, of any dangers or risks associated with use of said products, if any, and/or exposure to asbestos dust and/or fibers, and should have conveyed that information to Plaintiff. The acts and/or omissions of the aforesaid employers are the sole proximate cause of any injuries or damages alleged in the Complaint. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 24. Pursuant to §768.76, Fla. Stat., PREMIX is entitled to a set-off for all benefits paid, or payable to the Plaintiffs or previously to the Plaintiffs from collateral sources. 25. | PREMIX is not a joint tortfeasor with any other defendants in this action and thus may not be held jointly liable with other defendants. 26. — The doctrine of joint and several liability does not apply to this action because the doctrine was abrogated before the causes of action alleged in the Complaint accrued. 27. | PREMIX’s wamings and labels complied with federal and state regulations, standards and laws. Accordingly, the claims alleged in the Complaint are preempted by federal and/or state law. 28. The products of PREMIX were not defective in design or manufacture, and any alleged defect was a generic aspect of such product which could not be eliminated without substantially compromising the usefulness or desirability of such products, as recognized by the ordinary person with ordinary knowledge in the community. 29. The subject products of PREMIX are not defective in design or manufacture because at the time they left the control of PREMIX, there was no practical or technically feasible alternative design or formulation available which would not have substantially impaired the effectiveness or utility of the products. 30. At the time the subject product(s) or equipment was manufactured, the state of the art or technological and/or medical knowledge did not give PREMIX sufficient information regarding the alleged risks, or available and practical remediability of said risks, of exposure to the subject product(s), relieving PREMIX of liability in whole or in part. 31. Imposition of strict liability in the absence of such state of the art or technical and/or medical knowledge as to apprise PREMIX of the alleged risks, or of available and practical FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) remediability of said risks of exposure to the subject product(s) prior to their sale, would constitute an impermissible impairment of contract. 32. Imposition of strict liability in the absence of such state of the art or technical and/or medical knowledge as to apprise PREMIX of the alleged risks, or of available and practical remediability of said risks of exposure to the subject product(s) prior to their sale, would deny PREMIX substantive and due process rights. 33. Thenumber of different products or agents to which Plaintiff was allegedly exposed, and the lack of evidence as to the amount of actual exposure to each product or agent makes it impossible to determine, and to a sufficient degree of legal certainty, the alleged causal connection between the alleged injuries and said products or agents, if any. 34. The damages claimed in the Complaint which have not accrued are speculative and uncertain. 35. The subject product(s) were industrial products and not consumer products. The subject product(s) at issue exceeded or satisfied industry standards, as well as the ordinary expectations of the industrial consumers of such products at the time of their manufacture, distribution and/or sale. 36. In the absence of identification of exposure to specific product(s) manufactured by PREMIX which caused any injury or damages as alleged in the Complaint, imposition of liability on this Defendant would deprive PREMIX of its constitutional rights to substantive and procedural due process guaranteed by the Fourteenth Amendment of the United States Constitution and Article lof the Florida Constitution. FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 37. Pursuant to §4 of the Asbestos and Silica Compensation Faimess Act, Plaintiffs' recovery is barred because factors other than asbestos exposure were more probably the cause of any injury or damages as alleged in the Complaint. 38. There is no cognizable strict liability claim based upon failure to warn or a manufacturer’s failure to provide safety equipment with its products. 39. To predicate a judgment against the Defendant based on a contemporary theory of law for events which occurred as long ago as the 1960s deprives the Defendant of due process of law under both the United States and Florida Constitutions. 40. The products of this Defendant, if any, were marketed and sold to manufacturers or buyers who were sophisticated and knowledgeable concerning the use and hazards of asbestos, if any, when such products were sold, thereby obviating any duty to warn. The knowledge of the manufacturers and purchasers to whom Defendant’s products were sold was equal to or superior to that of the Defendant. Therefore, Defendant had no duty to warn Plaintiff or anyone associated with Plaintiff of possible health hazards associated with exposure to asbestos. Defendant reasonably relied upon the sophisticated employers, and is not responsible for the failure of employers to warn or take proper precautions for their employees. 41. The Complaint must be dismissed for failure to submit, within the relevant time frame as required by §774.204 and §774.205, Florida Statutes, both a written report and supporting test results constituting prima facie medical evidence that Plaintiff was diagnosed with an asbestos- related physical impairment meeting the requirements set forth in §774.204 and §774.205, Florida Statutes. Alternatively, Plaintiffs’ purported prima facie evidence is inadequate in that it fails to include some or all of the requisite elements for the asbestos-related physical impairment alleged, as set forth in §774.204 and §774.205, Florida Statutes. 10 FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 42. The Complaint must be dismissed because the written report and supporting test results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set forth in §774.204 and §774.205, Florida Statutes, were not obtained from a “qualified physician,” as that term is defined in §774.204 and §774.205. 43. | The Complaint must be dismissed because the written report and supporting test results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set forth in §774.204 and §774.205, Florida Statutes, were obtained through examinations and tests that do not comply with the requirements of §774.204 and §774.205 setting forth the technical recommendations for examinations, testing procedures, quality assurance, quality control, and equipment. 44. | The Complaint must be dismissed because the written report and supporting test results, if any, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set forth in §774.204 and §774.205, Florida Statutes, were obtained through examinations and tests that violated applicable laws, regulations, licensing requirements, and/or medical codes of practice in contravention of §774.204 and §774.205. 45. | The Complaint must be dismissed because the prima facie evidence, ifany, submitted on behalf of Plaintiffs pursuant to the above-referenced requirements set forth in §774.204 and §774.205, Florida Statutes, was obtained under the condition that Plaintiffs retain legal services in exchange for the examination, test, or screening underlying the alleged prima facie evidence, which is a violation of §774.204 and §774.205. 46. The Complaint must be dismissed because Plaintiffs have failed to provide this Defendant with a sworn information form as required by §774.205(3), Florida Statutes. Alternatively, the purported sworn information form submitted on behalf of Plaintiffs are inadequate ll FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) in that it fails to include some or all of the requisite elements as set forth in (3)§774.205, Florida Statutes. 47. Ifthere is any connection between Plaintiff's purported exposure to various products and agents during his lifetime, and any injury or damages as alleged in the Complaint, which connection PREMIX does not concede, the number of such products or agents and the lack of probative evidence as to the amount or extent of actual exposure to each product or agent makes it impossible to determine to a requisite degree of legal certainty whether there is a proximate causal connection between the product and any injury or damages as alleged in the Complaint. 48. Plaintiffs have failed to provide PREMIX with timely notice of the claims as alleged in the Complaint. 49. This action is barred by the Plaintiffs’ failure to join indispensable parties as Defendants, including but not limited to the Manville Asbestos Disease Compensation Fund. 50. To the extent that Plaintiffs purport to state a claim for misrepresentation or fraud, or any claim other than negligent failure to warn or strict liability, such claims are barred by the applicable Omnibus Order or other prior applicable Orders of this Court or are barred for failure to plead each with particularity. 51. Plaintiffs have failed to state a cause of action against Defendant for negligence and/or negligent failure to warn. 52. Plaintiffs have failed to state a cause of action against Defendant for strict liability including failure to warn. 53. Plaintiffs have failed to state a cause of action against Defendant for failure to exercise reasonable care. 12 FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) 54. Plaintiffs’ allegations that Defendant owed a duty to Plaintiff to provide protective clothing and equipment with respect to Defendant’s products do not support recovery in negligence under Florida law because Florida imposes no such duty upon manufacturers. 55. Any allegations by Plaintiffs that Defendant owed a duty to Plaintiff to develop, publish, adopt and disseminate safe methods of service, handling and installing asbestos materials or asbestos-containing products or equipment do not support recovery in negligence under Florida law because Florida imposes no such duty upon manufacturers. 56. Any allegations by Plaintiffs that Defendant owed a duty to Plaintiff to develop and place on the market non-asbestos containing materials with respect to Defendant’s products do not support recovery in negligence under Florida law because Florida imposes no such duty upon manufacturers. 57. Plaintiffs have failed to state a cause of action against Defendant for gross negligence, carelessness, and/or willful omissions. 58. Defendant did not owe a duty of care to Plaintiff. 59. Plaintiffs have failed to state a cause of action for loss of consortium. 60. To the extent that Plaintiffs purport to state a claim for punitive damages, such damages in this action are barred by Florida's Asbestos and Silica Compensation Fairness Act, Chapter 774, Florida Statutes. 61. | PREMIX reserves the right to assert against the Plaintiffs, the co-defendants and any other subsequent defendants or third-party defendants, any other affirmative defenses that may become apparent during the development of this action. 62. | PREMIX hereby adopts and incorporates by reference all applicable Affirmative Defenses filed herein by all other Defendants in this cause. 13 FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200CASE NO. 19-025692 (27) DEMAND FOR JURY TRIAL PREMIX hereby demands a jury trial for all issues triable as of right to a jury. WHEREFORE PREMIX prays that the Plaintiffs' Complaint be dismissed and that the Plaintiffs take nothing by reason of the Complaint; that PREMIX be dismissed; and that PREMIX be granted such other and further relief as is deemed necessary and proper. Respectfully submitted, /s/ Peter J. Melaragno Edward J. Briscoe Fla. Bar No. 109691 Peter J. Melaragno Fla. Bar No. 174432 FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to all counsel of record via the E-Portal system and File & ServeXpress this 15th day of January, 2020. 4s/ Peter J. Melaragno Peter J. Melaragno 14 FOWLER WHITE BURNETT P.A. * BRICKELL ARCH, 1395 BRICKELL AVENUE, 14 FLOOR, MIAMI, FLORIDA 33131 * (305) 789-9200