FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
`
` Plaintiffs,
`
` -against-
`
`
`84 LUMBER COMPANY; et al.
`
` Defendants.
`
`
`
`
`
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`
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`Index No. 814633/2023
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`COOPER BUSSMANN’S
`VERIFIED ANSWER WITH
`CROSS-CLAIMS
`
`Defendant Cooper Bussmann, sued herein as “Cooper Bussmann, a Division of Cooper
`
`Industries” (“Cooper Bussmann” or “Defendant”), by its attorneys Darger Errante Yavitz & Blau
`
`LLP, for its Verified Answer with Cross-Claims (“Answer”) to the Complaint (“Complaint”) filed
`
`by Plaintiffs Troy Shane Smith and Allyson Jane Smith (“Plaintiff” or collectively “Plaintiffs”):
`
`THE PARTIES
`
`1.
`
`Denies knowledge and information sufficient to form a belief with respect to the
`
`truth of all allegations contained in Paragraphs 1 through 3 (inclusive) of the Complaint.
`
`2.
`
`Paragraph 4 of Plaintiffs’ Complaint contains no allegations to which a response is
`
`required; to the extent a response is required, Cooper Bussmann denies knowledge or information
`
`sufficient to form a belief as to the truth of the allegations set forth.
`
`3.
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`Denies the allegations contained in Paragraph 5 of the Complaint to the extent that
`
`they apply to Cooper Bussmann, except to admit that Cooper Bussmann has done business in the
`
`State of New York, and denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegations as they pertain to other parties.
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`4.
`
`Denies knowledge and information sufficient to form a belief with respect to the
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`truth of all allegations contained in Paragraphs 6 through 20 (inclusive) of the Complaint.
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`1
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`1 of 32
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`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
`
` Plaintiffs,
`
` -against-
`
`
`84 LUMBER COMPANY; et al.
`
` Defendants.
`
`
`
`
`
`
`
`
`Index No. 814633/2023
`
`COOPER BUSSMANN’S
`VERIFIED ANSWER WITH
`CROSS-CLAIMS
`
`Defendant Cooper Bussmann, sued herein as “Cooper Bussmann, a Division of Cooper
`
`Industries” (“Cooper Bussmann” or “Defendant”), by its attorneys Darger Errante Yavitz & Blau
`
`LLP, for its Verified Answer with Cross-Claims (“Answer”) to the Complaint (“Complaint”) filed
`
`by Plaintiffs Troy Shane Smith and Allyson Jane Smith (“Plaintiff” or collectively “Plaintiffs”):
`
`THE PARTIES
`
`1.
`
`Denies knowledge and information sufficient to form a belief with respect to the
`
`truth of all allegations contained in Paragraphs 1 through 3 (inclusive) of the Complaint.
`
`2.
`
`Paragraph 4 of Plaintiffs’ Complaint contains no allegations to which a response is
`
`required; to the extent a response is required, Cooper Bussmann denies knowledge or information
`
`sufficient to form a belief as to the truth of the allegations set forth.
`
`3.
`
`Denies the allegations contained in Paragraph 5 of the Complaint to the extent that
`
`they apply to Cooper Bussmann, except to admit that Cooper Bussmann has done business in the
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`State of New York, and denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegations as they pertain to other parties.
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`4.
`
`Denies knowledge and information sufficient to form a belief with respect to the
`
`truth of all allegations contained in Paragraphs 6 through 20 (inclusive) of the Complaint.
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`1 of 32
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`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`5.
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`Denies the allegations contained in Paragraph 21 of the Complaint, except to admit
`
`that Cooper Bussmann has done business in the State of New York.
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`6.
`
`Denies knowledge and information sufficient to form a belief with respect to the
`
`truth of all allegations contained in Paragraphs 22 through 61 (inclusive) of the Complaint.
`
`7.
`
`Denies the allegations contained in Paragraph 62 of the Complaint to the extent that
`
`they apply to Cooper Bussmann, except to admit that Cooper Bussmann has done business in the
`
`State of New York and denies knowledge or information sufficient to form a belief as to the truth
`
`of the allegations as they pertain to other parties.
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`8.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 63 through 69
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties.
`
`AS TO THE FIRST CAUSE OF ACTION
`
`9.
`
`In response to Paragraph 70 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`10.
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`Cooper Bussmann denies the allegations contained in Paragraphs 71 through 78
`
`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
`
`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
`
`they pertain to other parties.
`
`AS TO THE SECOND CAUSE OF ACTION
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`11.
`
`In response to Paragraph 79 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
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`2
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`2 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`12.
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`Cooper Bussmann denies the allegations contained in Paragraphs 80 through 83
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties.
`
`AS TO THE THIRD CAUSE OF ACTION
`
`13.
`
`In response to Paragraph 84 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`14.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 85 through 93
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties.
`
`AS TO THE FOURTH CAUSE OF ACTION
`
`15.
`
`In response to Paragraph 94 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`16.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 95 through 112
`
`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
`
`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
`
`they pertain to other parties and refers all questions of law to the Court.
`
`AS TO THE FIFTH CAUSE OF ACTION
`
`17.
`
`In response to Paragraph 113 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
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`3
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`3 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`18.
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`Cooper Bussmann denies knowledge or information sufficient to form a belief as
`
`to the truth of the allegations contained in Paragraphs 114 through 120 (inclusive) of the Complaint
`
`and refers all questions of law to the Court.
`
`AS TO THE SIXTH CAUSE OF ACTION
`
`19.
`
`In response to Paragraph 121 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`20.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 122 through 136
`
`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
`
`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
`
`they pertain to other parties.
`
`AS TO THE SEVENTH CAUSE OF ACTION
`
`21.
`
`In response to Paragraph 137 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`22.
`
`Paragraph 138 of Plaintiffs’ Complaint contains no allegations to which a response
`
`is required; to the extent a response is required, Cooper Bussmann denies the allegations and denies
`
`knowledge or information sufficient to form a belief as to the truth of the allegations set forth
`
`insofar as they pertain to other parties.
`
`23.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 139 through 150
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties.
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`4
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`4 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
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`AS TO THE EIGHTH CAUSE OF ACTION
`
`24.
`
`In response to Paragraph 151 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`25.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 152 through 166
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties.
`
`AS TO THE NINTH CAUSE OF ACTION
`
`26.
`
`In response to Paragraph 167 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`27.
`
`Cooper Bussmann denies the allegations contained in Paragraphs 168 through 179
`
`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
`
`information sufficient to form a belief as to the truth of the allegations as they pertain to other
`
`parties and refers all questions of law to the Court.
`
`AS TO THE TENTH CAUSE OF ACTION
`
`28.
`
`In response to Paragraph 180 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`29.
`
`Cooper Bussmann denies the allegations contained in Paragraph 181 of the
`
`Complaint as they pertain to Cooper Bussmann, and denies knowledge or information sufficient
`
`to form a belief as to the truth of the allegations as they pertain to other parties.
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`5
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`5 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`AS TO THE ELEVENTH CAUSE OF ACTION
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`30.
`
`In response to Paragraph 182 contained in Plaintiffs’ Complaint, Cooper Bussmann
`
`repeats and reiterates each and every response contained hereinabove with the same force and
`
`effect as if hereinafter set forth at length.
`
`31.
`
`Denies knowledge and information sufficient to form a belief with respect to the
`
`truth of all allegations contained in Paragraphs 183 of the Complaint.
`
`32.
`
`Cooper Bussmann denies the allegations contained in Paragraph 184 of the
`
`Complaint as they pertain to Cooper Bussmann, and denies knowledge or information sufficient
`
`to form a belief as to the truth of the allegations as they pertain to other parties.
`
`AS AND FOR A
`FIRST AFFIRMATIVE DEFENSE
`
`33.
`
`The Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A
`SECOND AFFIRMATIVE DEFENSE
`
`34.
`
`This Court lacks personal jurisdiction over Cooper Bussmann.
`
`AS AND FOR A
`THIRD AFFIRMATIVE DEFENSE
`
`35.
`
`All claims are time-barred by the applicable Statute of Limitations.
`
`AS AND FOR A
`FOURTH AFFIRMATIVE DEFENSE
`
`36.
`
`All claims are barred by the applicable statute of repose.
`
`
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`6
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`6 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
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`AS AND FOR A
`FIFTH AFFIRMATIVE DEFENSE
`
`37.
`
`All causes of action have not been maintained in a timely fashion and Plaintiff has
`
`neglected the same and should be barred by the doctrine of laches.1
`
`AS AND FOR A
`SIXTH AFFIRMATIVE DEFENSE
`
`38.
`
`All claims should be dismissed based upon inconvenient forum.
`
`AS AND FOR A
`SEVENTH AFFIRMATIVE DEFENSE
`
`39.
`
`Plaintiff lacks the legal capacity, standing, and authority to bring this action.
`
`AS AND FOR AN
`EIGHTH AFFIRMATIVE DEFENSE
`
`40.
`
`All claims should be dismissed based upon waiver.
`
`AS AND FOR A
`NINTH AFFIRMATIVE DEFENSE
`
`41.
`
`All claims should be dismissed based upon the doctrines of accord and satisfaction,
`
`judicial estoppel, payment and release, collateral estoppel and/or res judicata.
`
`AS AND FOR A
`TENTH AFFIRMATIVE DEFENSE
`
`42.
`
`All claims should be dismissed based upon documentary evidence.
`
`AS AND FOR AN
`ELEVENTH AFFIRMATIVE DEFENSE
`
`43.
`
`All claims should be dismissed based upon Plaintiff’s infancy or other disability.
`
`
`1 The term “Plaintiff,” as used in the Affirmative Defenses, refers to “Plaintiff” individually or “Plaintiffs”
`collectively, as appropriate.
`
`
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`7
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`7 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`AS AND FOR A
`TWELFTH AFFIRMATIVE DEFENSE
`
`44.
`
`Any damages sustained by Plaintiff were the result of an intervening and/or
`
`superseding cause not of Cooper Bussmann’s doing.
`
`AS AND FOR A
`THIRTEENTH AFFIRMATIVE DEFENSE
`
`45.
`
`The Complaint and each and every allegation considered separately fail to state any
`
`cause of action against Cooper Bussmann upon which relief can be granted.
`
`AS AND FOR A
`FOURTEENTH AFFIRMATIVE DEFENSE
`
`46.
`
`This action is barred by Plaintiff’s failure to join necessary and/or indispensable
`
`parties without which this action should not proceed and should be dismissed.
`
`AS AND FOR A
`FIFTEENTH AFFIRMATIVE DEFENSE
`
`47.
`
`Venue is improper.
`
`AS AND FOR A
`SIXTEENTH AFFIRMATIVE DEFENSE
`
`48.
`
`There is a lack or insufficiency of service of process upon Cooper Bussmann.
`
`AS AND FOR A
`SEVENTEENTH AFFIRMATIVE DEFENSE
`
`49.
`
`Plaintiff’s claims are or may be barred or otherwise limited or affected by the
`
`application of provisions of the law or statutes of states or jurisdictions other than the State of New
`
`York where Plaintiff’s alleged exposure may have occurred.
`
`AS AND FOR AN
`EIGHTEENTH AFFIRMATIVE DEFENSE
`
`50.
`
`Plaintiff’s claims are or may be barred or otherwise limited by reason of accord and
`
`satisfaction.
`
`
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`8
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`8 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
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`AS AND FOR A
`NINETEENTH AFFIRMATIVE DEFENSE
`
`51.
`
`In the event that Plaintiff was employed by Cooper Bussmann, Plaintiff’s sole and
`
`exclusive remedy is under the Workers’ Compensation Law of the State of New York, the
`
`Longshoremen’s and Harbor Workers’ Compensation Act, and the workers’ compensation laws
`
`of any other state, jurisdiction, and/or venue where Plaintiff may have worked.
`
`AS AND FOR A
`TWENTIETH AFFIRMATIVE DEFENSE
`
`52.
`
`Plaintiff’s loss of consortium claim is barred as a matter of law to the extent that
`
`the alleged exposure to Cooper Bussmann’s product, material, or equipment predates the date of
`
`Plaintiff’s marriage.
`
`AS AND FOR A
`TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`53.
`
`The alleged injuries were or may have been due to exposure to products, materials,
`
`or equipment of manufacturers, distributors, or suppliers not named as defendants in this action.
`
`AS AND FOR A
`TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`54.
`
`Plaintiff’s alleged injuries were not caused by exposure to any alleged Cooper
`
`Bussmann product, material, or equipment.
`
`AS AND FOR A
`TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`55.
`
`Cooper Bussmann denies any successor liability for any product, material or
`
`equipment from which Plaintiff alleges injuries.
`
`
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`9
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`9 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
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`AS AND FOR A
`TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`56.
`
`To the extent that Plaintiff worked with or around any product, material, or
`
`equipment manufactured, sold, or distributed by Cooper Bussmann, said product, material, or
`
`equipment did not contain asbestos.
`
`AS AND FOR A
`TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`57.
`
`Cooper Bussmann did not specify, recommend, direct, or require the use of asbestos
`
`or asbestos containing products, materials, or equipment.
`
`AS AND FOR A
`TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`58.
`
`Cooper Bussmann denies that Plaintiff had any exposure to any asbestos or
`
`asbestos-containing product, material, or equipment mined, processed, manufactured, supplied,
`
`developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the
`
`stream of commerce by Cooper Bussmann and, more particularly, denies upon information and
`
`belief that Cooper Bussmann mined, processed, manufactured, supplied, developed, tested,
`
`fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of
`
`commerce any asbestos or asbestos-containing product, material, or equipment at the times and
`
`upon the dates alleged by Plaintiff.
`
`AS AND FOR A
`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`59.
`
`Cooper Bussmann specifically denies that the asbestos or asbestos-containing
`
`products, material, or equipment to which Plaintiff alleges exposure are products within the
`
`meaning and scope of the Restatement of Torts § 402A, and as such, the Complaint fails to state a
`
`cause of action in strict liability.
`
`
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`10
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`10 of 32
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`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
`
`AS AND FOR A
`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`60.
`
`In the event Plaintiff should prove exposure to any Cooper Bussmann product,
`
`material, or equipment, such exposure was de minimis and not sufficient to establish by a
`
`reasonable degree of probability that any Cooper Bussmann product, material, or equipment
`
`caused any alleged injury.
`
`AS AND FOR A
`TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`61.
`
`In the event Plaintiff should prove exposure at any location for which Cooper
`
`Bussmann is claimed to be legally liable, such exposure was de minimis and not sufficient to
`
`establish by a reasonable degree of probability that any Cooper Bussmann product, material, or
`
`equipment caused any alleged injury.
`
`AS AND FOR A
`THIRTIETH AFFIRMATIVE DEFENSE
`
`62.
`
`Contact with or use by Plaintiff of any asbestos or asbestos-containing products,
`
`materials, or equipment supplied, sold, or manufactured by Cooper Bussmann was not a substantial
`
`contributing cause of any alleged injury.
`
`AS AND FOR A
`THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`63.
`
`To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a
`
`location for which Cooper Bussmann is claimed to be legally liable at a time when Cooper
`
`Bussmann had no legal relationship to that location, Cooper Bussmann cannot be held liable for
`
`the alleged injuries.
`
`
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`11
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`11 of 32
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`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
`
`AS AND FOR A
`THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`64.
`
`Plaintiff’s claims against Cooper Bussmann must be dismissed because Cooper
`
`Bussmann did not own, lease, occupy, possess, supervise, manage, and/or control the area at or
`
`near the location where Plaintiff was allegedly injured.
`
`AS AND FOR A
`THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`65.
`
`Plaintiff’s claims against Cooper Bussmann must be dismissed because Cooper
`
`Bussmann did not supervise, control, manage, and/or direct Plaintiff, Plaintiff’s employer,
`
`Plaintiff’s coworkers, and/or any person or persons in the area at or near the location where
`
`Plaintiff was allegedly injured.
`
`AS AND FOR A
`THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`66.
`
`The conditions at and around the location at which Plaintiff was allegedly injured
`
`constituted open and obvious hazards against which Cooper Bussmann had no duty to warn.
`
`AS AND FOR A
`THIRTY-FIFTH AFFIRMATIVE DEFENSE
`
`67.
`
`To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a
`
`location for which Cooper Bussmann is claimed to be legally liable, Plaintiff’s claims against
`
`Cooper Bussmann must be dismissed because Cooper Bussmann did not specify, purchase, or
`
`supply any asbestos-containing products, materials, or equipment used or handled by Plaintiff,
`
`Plaintiff’s employer, Plaintiff’s co-workers, and/or any person or persons in the area at or near the
`
`location of Plaintiff’s alleged injury.
`
`
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`12
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`12 of 32
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`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`THIRTY-SIXTH AFFIRMATIVE DEFENSE
`
`68.
`
`The conditions at and around the location at which Plaintiff was allegedly injured
`
`constituted open and obvious hazards that Plaintiff was obligated to avoid and/or required to take
`
`reasonable and appropriate precautions so as to avoid injury.
`
`AS AND FOR A
`THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`
`69.
`
`Plaintiff’s claims are barred or limited by the doctrines of contributory negligence
`
`and comparative fault.
`
`AS AND FOR A
`THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`
`70.
`
`The alleged injuries were caused directly, solely and proximately by sensitivities,
`
`idiosyncrasies, and/or other reactions peculiar to Plaintiff alone and not found in the general public.
`
`AS AND FOR A
`THIRTY-NINTH AFFIRMATIVE DEFENSE
`
`71.
`
`Plaintiff’s significant pre-existing medical conditions caused the alleged injuries
`
`and/or damages.
`
`AS AND FOR A
`FORTIETH AFFIRMATIVE DEFENSE
`
`72.
`
`Cooper Bussmann did not have a duty to warn Plaintiff.
`
`AS AND FOR A
`FORTY-FIRST AFFIRMATIVE DEFENSE
`
`73.
`
`All claims are barred or diminished because of Plaintiff’s failure to preserve
`
`evidence.
`
`AS AND FOR A
`FORTY-SECOND AFFIRMATIVE DEFENSE
`
`74.
`
`Plaintiff was contributorily negligent in:
`
`
`
`13
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`13 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 01/22/2024
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`
`
`75. Working with materials he knew or should have known to be hazardous to his
`
`health, without use of available protective devices, and without taking reasonable precautions to
`
`guard against damages resulting from work with such materials.
`
`76.
`
`Failing to seek medical treatment and advice, and/or continuing to smoke, after the
`
`first manifestation of their alleged asbestos illness;
`
`77.
`
`Using, in whole or in part, of other substances, products, medications, and drugs;
`
`and/or
`
`78.
`
`As further discovery may reveal.
`
`AS AND FOR A
`FORTY-THIRD AFFIRMATIVE DEFENSE
`
`79.
`
`If Plaintiff used tobacco products, his use was a failure to exercise ordinary care for
`
`his own safety and the sole or primary cause of his injuries. The negligence of Plaintiff in using
`
`tobacco products or the negligence of third parties engaged in the sale, manufacture, distribution,
`
`or use of tobacco products is a partial or complete bar to all claims asserted in Plaintiff’s complaint.
`
`AS AND FOR A
`FORTY-FOURTH AFFIRMATIVE DEFENSE
`
`80.
`
`Plaintiff misused asbestos and/or asbestos-containing products, materials and/or
`
`equipment, which misuse proximately caused and/or contributed to the alleged injuries and
`
`damages of which he complains.
`
`AS AND FOR A
`FORTY-FIFTH AFFIRMATIVE DEFENSE
`
`81.
`
`Plaintiff was warned of the risk of exposure to asbestos and asbestos-containing
`
`products, materials and equipment.
`
`
`
`14
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`14 of 32
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`FORTY-SIXTH AFFIRMATIVE DEFENSE
`
`82.
`
`The alleged incident, injuries, and damages of which Plaintiff complains were
`
`caused by unauthorized, unintended, and/or improper use of asbestos, asbestos-containing product,
`
`material, and/or equipment complained of, and as a result of the failure to exercise reasonable care,
`
`caution, or vigilance for which Cooper Bussmann is not legally liable or responsible.
`
`AS AND FOR A
`FORTY-SEVENTH AFFIRMATIVE DEFENSE
`
`83.
`
`The conditions precedent to the maintenance of a wrongful death claim have not
`
`been met.
`
`AS AND FOR A
`FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`84.
`
`Any amount of damages recoverable based upon the claims and causes of action in
`
`the Complaint must be diminished by reason of the culpable conduct attributable to Plaintiff,
`
`including contributory negligence and assumption of risk, in the proportion which the culpable
`
`conduct attributable to Plaintiff bears to the culpable conduct which caused the damages.
`
`AS AND FOR A
`FORTY-NINTH AFFIRMATIVE DEFENSE
`
`85.
`
`Each and every cause of action in the Complaint is barred or limited by reason of
`
`the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of
`
`the risk.
`
`AS AND FOR A
`FIFTIETH AFFIRMATIVE DEFENSE
`
`86.
`
`Plaintiff failed to mitigate or otherwise act to lessen or reduce the alleged injuries
`
`and damages.
`
`
`
`15
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`15 of 32
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`
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`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`87.
`
`Plaintiff, his coworkers, and/or his employers misused, abused, mistreated,
`
`misapplied, and/or substantially modified the product, material, and/or equipment to which
`
`Plaintiff alleges exposure.
`
`AS AND FOR A
`FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`88.
`
`If the Court finds that any misuse, abuse, mistreatment, misapplication, and/or
`
`substantial modification of the product, material, or equipment caused and/or contributed to the
`
`alleged damages or injuries, Cooper Bussmann requests that the amount of damages that might be
`
`recoverable be diminished by the proportion that the same misuse, abuse, mistreatment,
`
`misapplication, and/or substantial modification attributed to Plaintiff, his coworkers, and/or his
`
`employers bears to the conduct that caused the alleged injuries or damages.
`
`AS AND FOR A
`FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`89.
`
`Each and every cause of action in the Complaint is barred in whole or in part by the
`
`negligence and conduct of Plaintiff’s employers.
`
`AS AND FOR A
`FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`90.
`
`Cooper Bussmann asserts the change of the product, material, or equipment’s
`
`condition as a defense.
`
`AS AND FOR A
`FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`91.
`
`Plaintiff failed to exercise ordinary care for his own safety, and that failure is a
`
`partial or complete bar to all claims asserted in the Complaint.
`
`
`
`16
`
`16 of 32
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`
`
`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`92.
`
`If Plaintiff should prove that injuries and damages were sustained as alleged, such
`
`injuries and damages resulted from acts or omissions on the part of third parties over whom Cooper
`
`Bussmann had no control or right of control.
`
`AS AND FOR A
`FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`93.
`
`Plaintiff’s claims are barred to the extent they are based on exposure, if any, of
`
`Plaintiff to materials or raw materials sold or supplied by Cooper Bussmann as a bulk supplier or
`
`a component supplier.
`
`AS AND FOR A
`FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`94. While Cooper Bussmann denies Plaintiff’s allegations as to negligence, statutory
`
`liability, strict liability, premises liability, injury, and damages, to the extent that Plaintiff 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 whom Cooper Bussmann had neither control nor right
`
`of control.
`
`AS AND FOR A
`FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`95.
`
`Plaintiff’s employer’s failure to provide the proper equipment to ensure a safe
`
`working environment was a proximate cause of the alleged injuries.
`
`AS AND FOR A
`SIXTIETH AFFIRMATIVE DEFENSE
`
`96.
`
`Cooper Bussmann at all times relevant hereto complied with all applicable federal,
`
`state, and other regulations, and acted reasonably in all of its activities.
`
`
`
`17
`
`17 of 32
`
`
`
`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`97.
`
`Cooper Bussmann is immune from liability for any conduct performed in
`
`conformity with the United States government specifications and/or contracts.
`
`AS AND FOR A
`SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`98.
`
`To the extent that Cooper Bussmann might be held vicariously liable for the actions
`
`or inactions of the Federal Occupational Safety and Health Administration (“OSHA”), the Federal
`
`Environmental Protection Agency (“EPA”), and/or other federal, state, and city agencies and
`
`employees for which those agencies or employees are immune from liability under federal and/or
`
`state common law and/or under federal and/or state statute, Cooper Bussmann is likewise immune
`
`from liability for those actions or inactions pursuant to the federal and/or state common law and/or
`
`federal and/or state statute.
`
`AS AND FOR A
`SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`99.
`
`Cooper Bussmann is immune from liability for any conduct performed in
`
`conformity with the specifications mandated by Plaintiff’s employer.
`
`AS AND FOR A
`SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
`100. This action is barred by the doctrines of sophisticated purchaser/employer,
`
`sophisticated/learned intermediary, and/or sophisticated user.
`
`AS AND FOR A
`SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`101. Cooper Bussmann owed no legal duty to Plaintiff.
`
`
`
`18
`
`18 of 32
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`
`
`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`SIXTY-SIXTH AFFIRMATIVE DEFENSE
`
`102. At all times relevant hereto the knowledge of other persons, business entities,
`
`and/or governmental entities, and the ability of such other persons, business entities, and/or
`
`governmental entities to take actions to prevent the alleged injuries and damages, was superior to
`
`that of Cooper Bussmann and, therefore, if there was a duty to warn Plaintiff, then the duty was
`
`on those other persons, business entities, and/or governmental entities, and not on Cooper
`
`Bussmann.
`
`AS AND FOR A
`SIXTY-SEVENTH AFFIRMATIVE DEFENSE
`
`103. The failure of the purchasers/employers to warn and/or safeguard Plaintiff from any
`
`possible health hazards associated with asbestos was an intervening and/or superseding cause of
`
`the alleged injuries.
`
`AS AND FOR A
`SIXTY-EIGHTH AFFIRMATIVE DEFENSE
`
`104. At all times during the conduct of its corporate operations, the agents, servants,
`
`and/or employees of Cooper Bussmann used proper methods in designing, testing, and
`
`manufacturing its products, materials, and equipment in conformity with the federal and state
`
`regulations, standards, specifications, and laws in effect; the available knowledge and research of
`
`the scientific and industrial communities; the generally recognized and prevailing industry
`
`standards; and the state of the art in existence at the time the design was prepared and the products,
`
`materials, and/or equipment manufactured and tested.
`
`
`
`19
`
`19 of 32
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`
`
`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`SIXTY-NINTH AFFIRMATIVE DEFENSE
`
`105. At all times during the conduct of its corporate operations, the agents, servants,
`
`and/or employees of Cooper Bussmann acted in conformity to the available knowledge and
`
`research of the scientific and industrial communities.
`
`AS AND FOR A
`SEVENTIETH AFFIRMATIVE DEFENSE
`
`106. Cooper Bussmann had no knowledge of the dangerous propensities, if any, of the
`
`products, materials, and/or equipment that allegedly caused injuries to Plaintiff.
`
`AS AND FOR A
`SEVENTY-FIRST AFFIRMATIVE DEFENSE
`
`107. At all times relevant hereto, the state of the medical, industrial, and scientific arts
`
`was that there was no generally accepted or recognized knowledge of any unsafe, inherently
`
`dangerous, hazardous, or defective character or nature of asbestos or asbestos-containing products,
`
`materials, and/or equipment when used in the manner and for the purposes intended, so that there
`
`was no duty by Cooper Bussmann to know of such character or nature or to warn Plaintiff or others
`
`similarly situated, and that, to the extent such duty arose, adequate warnings either were given or
`
`were not necessary under all circumstances.
`
`AS AND FOR A
`SEVENTY-SECOND AFFIRMATIVE DEFENSE
`
`108. This action cannot be maintained on substantive or jurisdictional statutes or legal
`
`theories which did not exist prior to the date on which Plaintiff allegedly used Cooper Bussmann’
`
`products, materials, and/or equipment, in that such statutes are inapplicable to this action, and in
`
`that the application of such legal theories to this action would be unconstitutionally retroactive.
`
`
`
`20
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`20 of 32
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`
`
`FILED: ERIE COUNTY CLERK 01/22/2024 12:14 PM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 01/22/2024
`
`
`
`AS AND FOR A
`SEVENTY-THIRD AFFIRMATIVE DEFENSE
`
`109. Cooper Bussmann is not a joint tortfeasor with any other defendant herein, and
`
`accordingly, Cooper Bussmann may not be jointly and severally liable with other defendants.
`
`AS AND FOR A
`SEVENTY-FOURTH AFFIRMATIVE DEFENSE
`
`110. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
`
`unavailable because of the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A
`SEVENTY-FIFTH AFFIRMATIVE DEFENSE
`
`111. Coop
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