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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`---------------------------------------------------------------------x
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`
`
`
` Plaintiffs,
`
`
`-against-
`
`
`
`84 LUMBER COMPANY, et al.,
`
` Defendants.
`
`----------------------------------------------------------------------x
`COUNSELORS:
`
`
`
`
`
`
`Index No.: 814633/2023
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`FOSTER WHEELER LLC’S
`VERIFIED ANSWER TO
`PLAINTIFFS’ VERIFIED
`COMPLAINT, AFFIRMATIVE
`DEFENSES, CROSS-CLAIMS,
`AND ANSWER TO CROSS-
`CLAIMS
`
`Defendant FOSTER WHEELER, LLC, survivor to a merger with Foster Wheeler Corporation
`(hereinafter “Foster Wheeler”) by its attorneys, Tanenbaum Keale LLP, hereby answers Plaintiffs’
`Verified Complaint (hereinafter "Verified Complaint") as follows:
`
`
`
`
`
`
`THE PARTIES
`
`1.
`
`Foster Wheeler is without knowledge or information sufficient to form a belief as
`
`to the truth of the allegations contained in paragraphs 1 through 3 of the Verified Complaint and
`
`leaves the Plaintiffs to their proofs.
`
`2.
`
`The statements contained in paragraph 4 of Plaintiffs’ Verified Complaint do not
`
`require any admissions or denials as said statements merely define "Defendants" as used within
`
`the context of Plaintiffs’ Verified Complaint.
`
`3.
`
`Foster Wheeler admits that it is a foreign business corporation authorized to and
`
`transacting business in the State of New York, with its principal place of business outside of the
`
`State of New York. Foster Wheeler denies the remaining allegations contained in paragraphs 5
`
`through 64 of Plaintiffs’ Verified Complaint to the extent they pertain to Foster Wheeler and
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`denies knowledge or information sufficient to form a belief as to the truth of the allegations to the
`
`extent they pertain to any other defendant in this action.
`
`4.
`
`Foster Wheeler denies each and every allegation contained in paragraphs 65
`
`through 69 of Plaintiffs’ Verified Complaint to the extent that such allegations are directed toward
`
`Foster Wheeler. Foster Wheeler is without knowledge or information sufficient to form a belief
`
`as to the truth of the allegations contained in paragraphs 65 through 69 of Plaintiffs’ Verified
`
`Complaint as they relate to any other defendant in this action. Foster Wheeler also refers all
`
`conclusions of law contained in paragraphs 65 through 69 to the Court.
`
` AS AND FOR A FIRST CAUSE OF ACTION SOUNDING IN NEGLIGENCE,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`5.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 69 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 70 of Plaintiffs’ Verified
`
`Complaint.
`
`6.
`
`Foster Wheeler denies the allegations contained in paragraphs 71 through 78 of
`
`Plaintiffs’ Verified Complaint, including their subparts, to the extent they pertain to Foster
`
`Wheeler and denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations to the extent they pertain to any other defendant in this action. Foster Wheeler also
`
`refers all conclusions of law contained in paragraphs 71 through 78 to the Court.
`
`AS AND FOR A SECOND CAUSE OF ACTION SOUNDING IN BREACH OF
`WARRANTY.
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`7.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 78 of Plaintiffs’ Verified Complaint with the same
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`force and effect as if fully set forth at length herein answer to paragraph 79 of Plaintiffs’ Verified
`
`Complaint.
`
`8.
`
`Foster Wheeler denies the allegations contained in paragraphs 80 through 83 of
`
`Plaintiffs’ Verified Complaint to the extent they pertain to Foster Wheeler and denies knowledge
`
`or information sufficient to form a belief as to the truth of the allegations to the extent they pertain
`
`to any other defendant in this action. Foster Wheeler also refers all conclusions of law contained
`
`in paragraphs 80 through 83 to the Court.
`
`AS AND FOR A THIRD CAUSE OF ACTION SOUNDING IN STRICT
`LIABILITY,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`9.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 83 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 84 of Plaintiffs’ Verified
`
`Complaint.
`
`10.
`
`Foster Wheeler denies the allegations contained in paragraphs 85 through 93 of
`
`Plaintiffs’ Verified Complaint to the extent they pertain to Foster Wheeler and denies knowledge
`
`or information sufficient to form a belief as to the truth of the allegations to the extent they pertain
`
`to any other defendant in this action. Foster Wheeler also refers all conclusions of law contained
`
`in paragraphs 85 through 93 to the Court.
`
`AS AND FOR A FOURTH CAUSE OF ACTION LABOR LAW VIOLATIONS,
` FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`11.
`
`allegation contained in paragraphs 1 through 93 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 94 of Plaintiffs’ Verified
`
`Complaint.
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`12.
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`Foster Wheeler denies each and every allegation contained in paragraphs 95
`
`through 112 of Plaintiffs’ Verified Complaint, including their subparts, to the extent that such
`
`allegations are directed toward Foster Wheeler. Foster Wheeler is without knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 95
`
`through 112 of Plaintiffs’ Verified Complaint as they relate to any other party or third party in
`
`this action. Foster Wheeler also refers all conclusions of law contained in paragraphs 95 through
`
`112 to the Court.
`
`
`AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT
`METROPOLITAN LIFE INSURANCE COMPANY,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`13.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 112 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 113 of Plaintiffs’ Verified
`
`Complaint.
`
`14.
`
`Foster Wheeler denies knowledge or information sufficient to form a belief as to
`
`the truth of the allegations contained in paragraphs 114 through 120 of Plaintiffs’ Verified
`
`Complaint as they relate to defendant Metropolitan Life Insurance Company and leaves the
`
`Plaintiffs to their proofs.
`
`AS AND FOR A SIXTH CAUSE OF ACTION SOUNDING IN CONSPIRACY AND
`COLLECTIVE LIABILITY/CONCERT OF ACTION,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`15.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 120 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 121 of Plaintiffs’ Verified
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`Complaint.
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`16.
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`Foster Wheeler denies each and every allegation contained in paragraphs 122
`
`through 136 of Plaintiffs’ Verified Complaint, including their subparts, to the extent that such
`
`allegations are directed toward Foster Wheeler. Foster Wheeler is without knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 122
`
`through 136 of Plaintiffs’ Verified Complaint as they relate to any other party or third party in
`
`this action. Foster Wheeler also refers all conclusions of law contained in paragraphs 122 through
`
`136 to the Court.
`
`AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT
`CONTRACTORS,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`17.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 136 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 137of Plaintiffs’ Verified
`
`Complaint.
`
`18.
`
`The statements contained in paragraph 138 of Plaintiffs’ Verified Complaint do
`
`not require any admissions or denials as said statements merely define "contractor(s)" as used
`
`within the context of Plaintiffs’ Verified Complaint.
`
`19.
`
`Foster Wheeler denies each and every allegation contained in paragraphs 139
`
`through 150 of Plaintiffs’ Verified Complaint, including their subparts, to the extent that such
`
`allegations are directed toward Foster Wheeler. Foster Wheeler is without knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 139
`
`through 150 of Plaintiffs’ Verified Complaint as they relate to any other party or third party in
`
`this action. Foster Wheeler also refers all conclusions of law contained in paragraphs 139 through
`
`150 to the Court.
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`AS AND FOR AN EIGHTH CAUSE OF ACTION FOR PREMISES LIABILITY
`AGAINST CERTAIN DEFENDANTS,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`20.
`
`allegation contained in paragraphs 1 through 150 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 151 of Plaintiffs’ Verified
`
`Complaint.
`
`21.
`
`Foster Wheeler denies each and every allegation contained in paragraphs 152
`
`through 165 of Plaintiffs’ Verified Complaint, including their subparts, to the extent that such
`
`allegations are directed toward Foster Wheeler. Foster Wheeler is without knowledge or
`
`information sufficient to form a belief as to the truth of the allegations contained in paragraphs 152
`
`through 165 of Plaintiffs’ Verified Complaint as they relate to any other party or third party in
`
`this action. Foster Wheeler also refers all conclusions of law contained in paragraphs 152 through
`
`165 to the Court.
`
`22.
`
`In response to paragraph 166 of Plaintiffs’ Verified Complaint, Foster Wheeler
`
`agrees that the Substantive Law of Admiralty governs some or all of the allegations contained in
`
`Plaintiffs’ causes of action but denies that the applicability of the Substantive Law of Admiralty
`
`precludes removal of some of all or those allegations.
`
`AS AND FOR A NINTH CAUSE OF ACTION FOR JOINT AND SEVERAL LIABILITY,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`
`23.
`
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`allegation contained in paragraphs 1 through 166 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 167 of Plaintiffs’ Verified
`
`Complaint.
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`24.
`
`Foster Wheeler denies each and every allegation contained in paragraphs 168
`
`through 179 of Plaintiffs’ Verified Complaint, to the extent that such allegations are directed
`
`toward Foster Wheeler. Foster Wheeler is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in paragraphs 168 through 179 of Plaintiffs’
`
`Verified Complaint as they relate to any other party or third party in this action. Foster Wheeler
`
`also refers all conclusions of law contained in paragraphs 168 through 179 to the Court.
`
` AS AND FOR A TENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`25.
`
`allegation contained in paragraphs 1 through 179 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 180 of Plaintiffs’ Verified
`
`Complaint.
`
`26.
`
`Foster Wheeler denies each and every allegation contained in paragraph 181 of
`
`Plaintiffs’ Verified Complaint, including their subparts, to the extent that such allegations are
`
`directed toward Foster Wheeler. Foster Wheeler is without knowledge or information sufficient
`
`to form a belief as to the truth of the allegations contained in paragraph 181 of Plaintiffs’ Verified
`
`Complaint as they relate to any other party or third party in this action. Foster Wheeler also refers
`
`all
`
`AS AND FOR AN ELEVENTH CAUSE OF ACTION SPOUSAL LOSS OF
`CONSORTIUM,
`FOSTER WHEELER ANSWERS AS FOLLOWS:
`Foster Wheeler repeats and reiterates each and every answer to each and every
`
`27.
`
`allegation contained in paragraphs 1 through 181 of Plaintiffs’ Verified Complaint with the same
`
`force and effect as if fully set forth at length herein answer to paragraph 182 of Plaintiffs’ Verified
`
`Complaint.
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`28.
`
`Foster Wheeler denies each and every allegation contained in paragraphs 183 and
`
`184 of Plaintiffs’ Verified Complaint, including their subparts, to the extent that such allegations
`
`are directed toward Foster Wheeler. Foster Wheeler is without knowledge or information
`
`sufficient to form a belief as to the truth of the allegations contained in paragraphs 183 and 184 of
`
`Plaintiffs’ Verified Complaint as they relate to any other party or third party in this action. Foster
`
`Wheeler also refers all
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Plaintiffs’ Verified Complaint fails to contain any allegations whatsoever against
`
`29.
`
`Foster Wheeler and fails to state a claim upon which relief can be granted against Foster Wheeler.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That Foster Wheeler acted reasonably and with due care toward Plaintiffs.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That Foster Wheeler owed no duty to Plaintiffs.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That Foster Wheeler violated no duty owed to Plaintiffs.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That at all times relevant hereto, Foster Wheeler complied with all applicable laws,
`
`30.
`
`31.
`
`32.
`
`33.
`
`regulations and standards.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`In the event that Plaintiffs relies on New York Law, L. 1986 C. 682 Sections 4 and
`
`34.
`
`12 as grounds for maintaining this action, these sections are unconstitutional, and this action is
`
`time barred.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`The claims are barred by the doctrines of res judicata and/or collateral estoppel.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That Foster Wheeler was not served in accordance with the provisions of the New
`
`35.
`
`36.
`
`York Civil Practice Law and Rules and therefore Plaintiffs’ Verified Complaint must be
`
`dismissed due to insufficient process and insufficient service of process.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Plaintiffs’ Verified Complaint contains no information regarding dates of
`
`37.
`
`exposure, injury or diagnosis, or any other information necessary to determine whether Plaintiffs’
`
`claims were timely filed. Foster Wheeler asserts the claims may be barred under the terms of any
`
`relevant statutes of limitations or repose from the jurisdiction or jurisdictions whose limitations or
`
`repose provisions govern.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Plaintiffs have failed to plead any basis for claims of misrepresentation, deliberate
`
`38.
`
`concealment, or fraud against Foster Wheeler, much less state such claims with the specificity
`
`required by the New York Civil Practice Law and Rules and Federal Rules of Civil Procedure.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That one or more of the causes of action have not been maintained in a timely
`
`39.
`
`fashion and Plaintiffs have neglected the same and should be barred by the doctrine of laches.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That any injuries and/or damages sustained by the Plaintiffs, as alleged in Plaintiffs’
`
`40.
`
`Verified Complaint herein, were caused in whole or in part by the contributory negligence and/or
`
`culpable conduct of said Plaintiffs and not as a result of any contributory negligence and/or
`
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`culpable conduct on the part of the answering defendant, which either bars or reduces Plaintiffs’
`
`claims herein an amount to be determined by the trier of fact.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`If Plaintiffs sustained any injury as alleged, which is denied, the same resulted,
`
`41.
`
`upon information and belief, from their own negligence in failing to care for their own health by
`
`using tobacco products over an extended period of time. The use of said tobacco products is the
`
`sole, direct and proximate cause, or a contributing cause, of the alleged injury or damage, if any,
`
`about which Plaintiffs complain.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`If Plaintiffs sustained any injuries or damages as alleged in Plaintiffs’ Verified
`
`42.
`
`Complaint, all of which Foster Wheeler specifically denies, then such injuries and damages were
`
`caused or contributed to by reason of the negligence of said Plaintiffs, by reason of, but not limited
`
`to, said Plaintiffs’ failure to wear a respirator, engage in safe work practices or to protect
`
`themselves adequately from risk of harm.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`If Plaintiffs sustained any injury or damage, which is denied, then such injury or
`
`43.
`
`damage were proximately caused or contributed to by exposure to and inhalation of noxious and
`
`deleterious fumes and residues from industrial products and by-products prevalent on Plaintiffs’
`
`job sites and substances other than those manufactured or sold by Foster Wheeler, if any, and by
`
`cumulative exposure to all types of environmental and industrial pollutants of air and water.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Insofar as Plaintiffs’ Verified Complaint and each cause of action considered
`
`44.
`
`separately allege a cause of action accruing before September 1, 1975, each such cause of action
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`is barred by reason of the culpable conduct attributable to Plaintiffs, including contributory
`
`negligence and assumption of the risk.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`This action may be barred by the applicable state and/or federal industrial insurance
`
`45.
`
`and/or worker's compensation laws which may provide an exclusive remedy for the damages
`
`which Plaintiffs allegedly sustained, if any.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`In the event that Plaintiffs were employed by this answering defendant, Plaintiffs’
`
`46.
`
`sole and exclusive remedy is under the Workers’ Compensation Law of the State of New York.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That the accident and injuries complained of in the Plaintiffs’ Verified Complaint
`
`47.
`
`were caused or brought about by the negligence of a third person or persons over whom this
`
`answering defendant had no control and for whose acts the answering defendant was in no way
`
`responsible.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That by entering into the activity in which the Plaintiffs were engaged at the time
`
`48.
`
`of the occurrence set forth in Plaintiffs’ Verified Complaint, said Plaintiffs knew the hazards
`
`thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that
`
`whatever injuries and damages were sustained by the Plaintiffs herein as alleged in Plaintiffs’
`
`Verified Complaint arose from and were caused by the reason of such risks voluntarily undertaken
`
`by the Plaintiffs in their activities and such risks were assumed and accepted by them in performing
`
`and engaging in said activities.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`There should be no recovery against Foster Wheeler because of any failure to warn
`
`49.
`
`or inadequacy of warning because, upon information and belief, at all times pertinent to Plaintiffs’
`
`claims, said Plaintiffs were possessed of or should have been possessed of good and adequate
`
`knowledge which negated any need for said warning and/or Plaintiffs were required to follow
`
`specific written safety procedures as established by their employers which negated the need or
`
`requirement for any such warning.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`50. Whatever damages Plaintiffs may have suffered, if any, were solely or proximately
`
`caused by the Plaintiffs when they assumed and voluntarily exposed themselves to specific and
`
`appreciated risks pursuant to the doctrine of volenti non fit injuria and assumption of risk, for
`
`which Plaintiffs are barred from receiving damages, or, in the alternative, for which recovery is
`
`reduced.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That after the product(s) left the control of this answering defendant, they were
`
`51.
`
`subject to abuse, alteration, change, improper installation or operation by persons not in the employ
`
`or control of this defendant, which alteration, change, abuse, improper installation or operation
`
`proximately caused the injuries complained of by Plaintiffs in Plaintiffs’ Verified Complaint.
`
`Such change in condition bars the action as against this defendant.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`The alleged injuries and damages of which the Plaintiffs complain were caused by
`
`52.
`
`unauthorized, unattended, or improper use of the products complained of, and as a result of failure
`
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`to exercise reasonable and ordinary care, caution and vigilance for which Foster Wheeler is not
`
`liable or not responsible.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`That any oral warranties upon which Plaintiffs allegedly relied are inadmissible and
`
`53.
`
`unavailable because of the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Those Plaintiffs, their coworkers or employers misused, abused, mistreated and
`
`54.
`
`misapplied the product(s) designated as asbestos material as alleged in Plaintiffs’ Verified
`
`Complaint herein.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`55. Whatever damages Plaintiffs may have suffered, if any, were due solely or in part
`
`to the failure of Plaintiffs’ employers to take adequate precautions and provide Plaintiffs with a
`
`safe place to work.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`56. While this answering defendant denies the allegations of Plaintiffs with respect to
`
`negligence, statutory liability, strict liability, injury and damages, to the extent that Plaintiffs may
`
`be able to prove the same, they were the result of intervening and/or interceding acts of superseding
`
`negligence on the part of third-parties over which this defendant had neither control nor right of
`
`control and are not recoverable as against this defendant.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`In accordance with CPLR 1601 et seq., the liability of this answering defendant, if
`
`57.
`
`any, to the Plaintiffs for non-economic loss is limited to this defendant’s equitable share,
`
`determined in accordance with the relative culpability of all persons or entities contributing to the
`
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`NYSCEF DOC. NO. 25
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`total liability for non-economic loss, including named parties and others over whom Plaintiffs
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`could have obtained personal jurisdiction with due diligence.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`In the event Plaintiffs recover a verdict or judgment against the defendant, then said
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`58.
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`verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have
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`been, or will, with reasonable certainty, replace or indemnify Plaintiffs, in whole or in part, for any
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`past or future claimed economic loss, from any collateral source such as insurance, social security,
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`workers compensation or employee benefit programs.
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`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`If Plaintiffs have heretofore settled or should hereafter settle or have any judgment
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`59.
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`rendered in their favor for any of their alleged injuries and damages with any entity, then Foster
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`Wheeler is entitled to a setoff in the amount of said settlement.
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Plaintiffs contributed to their illness and/or injuries, in whole or in part, by the use
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`60.
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`of other substances, product, drugs or medications.
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`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`The place of trial of this action is stated for an improper venue.
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`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`In the event it should be proven at the time of trial that this answering defendant is
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`61.
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`62.
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`subject to market share liability, then this defendant’s respective share of such liability would be
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`of such a de minimus amount as to make its contribution for damages negligible and this defendant
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`would be entitled to contribution, either in whole or in part, from the co-defendants not represented
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`by this answer.
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`14 of 25
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`FILED: ERIE COUNTY CLERK 01/02/2024 04:06 PM
`NYSCEF DOC. NO. 25
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/02/2024
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`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`At all times material to Plaintiffs’ claims, the state of medical and scientific
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`63.
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`knowledge did not provide Foster Wheeler with knowledge, either actual or constructive, and by
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`the application of reasonable developed human skill and foresight Foster Wheeler had no reason
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`to know the propensities, if any, of “asbestos,” “asbestos dust,” “asbestos fibers” and/or “asbestos
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`products” to cause or contribute to the creation of medical conditions or circumstances involving
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`alleged injuries to the lungs, respiratory system, larynx, stomach or other bodily organs, bone and
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`tissue, and also including asbestosis, respiratory disorders, risk of mesothelioma or any other
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`illness of any type whatsoever at the times relevant to Plaintiffs’ claims.
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`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`This answering defendant did not give, make or otherwise extend warranties,
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`64.
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`whether express or implied, upon which Plaintiffs could rely.
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`This answering defendant breached no warranties, whether express or implied.
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`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Any cause of action against Foster Wheeler based on a breach of warranties is
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`65.
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`66.
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`barred because of failure to give Foster Wheeler timely notice required by the Uniform
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`Commercial Code enacted in New York.
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`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`The doctrine of strict liability in tort is inapplicable to this litigation.
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`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`To the extent Plaintiffs’ Verified Complaint and the causes of action pled therein
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`67.
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`68.
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`fail to identify Foster Wheeler as the manufacturer in fact of any injury-causing products, or fail
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/02/2024
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`to identify any product manufactured by Foster Wheeler as the cause in fact of any injuries to
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`Plaintiffs, Plaintiffs’ Verified Complaint fails to state a claim upon which relief can be granted,
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`inasmuch as such claims, if granted, would contravene Foster Wheeler's constitutional rights to
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`substantive and procedural due process of law as guaranteed by the Fifth and Fourteenth
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`Amendments to the Constitution of the United States and the Constitution of the State of New
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`York or any other applicable jurisdiction.
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`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`Plaintiffs’ claim for relief, if granted, would constitute a taking of private property
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`69.
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`for public use without just compensation, and would contravene Foster Wheeler's rights as
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`preserved by the Fifth and Fourteenth Amendments to the Constitution of the United States and
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`the Constitution of the State of New York or any other applicable jurisdiction.
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`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`To the extent Plaintiffs’ Verified Complaint and the causes of action pled therein
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`70.
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`fail to identify Foster Wheeler as the manufacturer in fact of any injury-causing products, or fail
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`to identify any product manufactured by Foster Wheeler as the cause in fact of any injuries to
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`Plaintiffs, said Verified Complaint fails to state a claim upon which relief can be granted, inasmuch
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`as such claims, if granted, would constitute a denial by this court of this defendant's right to equal
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`protection of the law, as preserved by the Fourteenth Amendment to the Constitution of the United
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`States as well as the Constitution of the State of New York or any other applicable jurisdiction.
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`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE,
`DEFENDANT FOSTER WHEELER STATES:
`To the extent Plaintiffs’ Verified Complaint and the causes of action pled therein
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`71.
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`fail to identify Foster Wheeler as the manufacturer in fact of any injury-causing products, or fail
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`to identify any product manufactured by Foster Wheeler as the cause in fact of any injuries to
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`16 of 25
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`FILED: ERIE COUNTY CLERK 01/02/2024 04:06 PM
`NYSCEF DOC. NO. 25
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/02/2024
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`Plaintiffs, said Verified Complaint fails to state a claim upon which relief can be granted, inasmuch
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`as such claims, if granted, would constitute an invalid burden by this court on interstate commerce,
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`and a burden without resort to less burdensome alternatives, in violation of the C