FILED: ERIE COUNTY CLERK 12/19/2023 01:17 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 814633/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`--------------------------------------------------------------------X
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`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`
`
`
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`Plaintiff(s),
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`
`
` -against-
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`
`
`
`
`
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`
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`ADSCO MANUFACTURING CORP., et al.,
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`Defendants.
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`--------------------------------------------------------------------X
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`
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`Index No.: 814633/2023
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`DEFENDANT MANNINGTON
`MILLS INC.’S VERIFIED
`ANSWER TO PLAINTIFFS’
`VERIFIED COMPLAINT,
`AFFIRMATIVE DEFENSES
` AND CROSS-CLAIMS
`
`
`
`Defendant, MANNINGTON MILLS, INC. (hereinafter “Mannington” or
`
`“Defendant”), by its attorneys, Hawkins Parnell & Young LLP, for its Answer to Plaintiffs’
`
`Verified Complaint, alleges the following upon information and belief:
`
`1.
`
`Denies all material allegations in Plaintiffs’ Verified Complaint as they pertain to
`
`Mannington.
`
`2.
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`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every other allegation contained in Plaintiffs’ Verified Complaint.
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`WHEREFORE, Defendant MANNINGTON MILLS, INC. demands dismissal of the
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`Verified Complaint and any and all Cross-Claims with prejudice.
`
`AFFIRMATIVE DEFENSES
`
`In the following defenses, the use of the term “Plaintiffs” shall be considered to include
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`both the singular and the plural, the masculine as well as the feminine, and, where appropriate,
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`RECEIVED NYSCEF: 12/19/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`--------------------------------------------------------------------X
`
`TROY SHANE SMITH and ALLYSON JANE SMITH,
`
`
`
`
`
`Plaintiff(s),
`
`
`
` -against-
`
`
`
`
`
`
`
`
`
`ADSCO MANUFACTURING CORP., et al.,
`
`Defendants.
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`
`
`
`--------------------------------------------------------------------X
`
`
`
`Index No.: 814633/2023
`
`DEFENDANT MANNINGTON
`MILLS INC.’S VERIFIED
`ANSWER TO PLAINTIFFS’
`VERIFIED COMPLAINT,
`AFFIRMATIVE DEFENSES
` AND CROSS-CLAIMS
`
`
`
`Defendant, MANNINGTON MILLS, INC. (hereinafter “Mannington” or
`
`“Defendant”), by its attorneys, Hawkins Parnell & Young LLP, for its Answer to Plaintiffs’
`
`Verified Complaint, alleges the following upon information and belief:
`
`1.
`
`Denies all material allegations in Plaintiffs’ Verified Complaint as they pertain to
`
`Mannington.
`
`2.
`
`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every other allegation contained in Plaintiffs’ Verified Complaint.
`
`WHEREFORE, Defendant MANNINGTON MILLS, INC. demands dismissal of the
`
`Verified Complaint and any and all Cross-Claims with prejudice.
`
`AFFIRMATIVE DEFENSES
`
`In the following defenses, the use of the term “Plaintiffs” shall be considered to include
`
`both the singular and the plural, the masculine as well as the feminine, and, where appropriate,
`
`1 of 23
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`the Plaintiffs’ Decedent. Also, references to the “Complaint” shall, where applicable, include
`
`any amendments thereto.
`
`AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE
`
`1.
`
`The Verified Complaint fails to state a cause of action against Defendant.
`
`AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE
`
`2.
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE
`
`3.
`
`This Court lacks personal jurisdiction over Defendant.
`
`AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE
`
`4.
`
`This Court is not the proper venue for this matter.
`
`AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE
`
`5.
`
`The lawsuit was not commenced by Plaintiffs within the time prescribed by law
`
`and the Plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of
`
`limitations.
`
`AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE
`
`6.
`
`Plaintiffs’ claims are barred by the doctrine of laches.
`
`AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE
`
`7.
`
`This action cannot be maintained, as there is another action pending for the same
`
`relief.
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`2 of 23
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`AS AND FOR AN EIGHTH SEPARATE AND COMPLETE DEFENSE
`
`8.
`
`To the extent that any injury relating to Plaintiffs occurred in the context of an
`
`employer-employee relationship, claims for said injuries are preempted by the Workers’
`
`Compensation Act.
`
`AS AND FOR A NINTH SEPARATE AND COMPLETE DEFENSE
`
`9.
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`There is no justiciable issue or controversy.
`
`AS AND FOR A TENTH SEPARATE AND COMPLETE DEFENSE
`
`10.
`
`The claims for damages have not accrued, are purely speculative, uncertain, and
`
`contingent.
`
`AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE DEFENSE
`
`11.
`
`Plaintiffs’ claims are barred under applicable state and federal law.
`
`AS AND FOR A TWELFTH SEPARATE AND COMPLETE DEFENSE
`
`12.
`
`To the extent Plaintiffs seek to maintain a claim for relief on behalf of any
`
`decedent, said Plaintiffs lack capacity and/or standing to maintain such claim for relief against
`
`Defendant.
`
`AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE DEFENSE
`
`13.
`
`Plaintiffs lack the necessary standing to maintain this action.
`
`AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE DEFENSE
`
`14.
`
`To the extent Plaintiffs bring suit in a representative capacity, Plaintiffs have
`
`failed to allege sufficient facts to demonstrate legal capacity to sue pursuant to New York Estate
`
`Powers and Trusts Law §5-1.1 to 5-4.6.
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`3 of 23
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`
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`AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE DEFENSE
`
`15.
`
`Plaintiffs’ injury was not foreseeable.
`
`AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE DEFENSE
`
`16.
`
`Plaintiffs’ claims are barred under applicable law pursuant to public policy, since
`
`social utility and benefit of asbestos-containing products outweighed the risk at the time of
`
`Plaintiffs’ alleged exposure.
`
`AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE DEFENSE
`
`17.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR AN EIGHTEENTH SEPARATE AND COMPLETE DEFENSE
`
`18.
`
`Plaintiffs may not bring this action as Plaintiffs have failed to exhaust all of their
`
`administrative remedies.
`
`AS AND FOR A NINETEENTH SEPARATE AND COMPLETE DEFENSE
`
`19.
`
`At all times relevant to this litigation, Defendant complied with all applicable law,
`
`regulations and standards.
`
`AS AND FOR A TWENTIETH SEPARATE AND COMPLETE DEFENSE
`
`20.
`
`Relief is barred by virtue of the doctrines of estoppel, collateral estoppel, and
`
`waiver.
`
`AS AND FOR A TWENTY-FIRST SEPARATE AND COMPLETE DEFENSE
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`4 of 23
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`21.
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`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of res judicata.
`
`AS AND FOR A TWENTY-SECOND SEPARATE AND COMPLETE DEFENSE
`
`22.
`
`Plaintiffs’ action is barred by the doctrine of preclusion.
`
`AS AND FOR A TWENTY-THIRD SEPARATE AND COMPLETE DEFENSE
`
`23.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of arbitration and award.
`
`AS AND FOR A TWENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
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`24.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of discharge in bankruptcy.
`
`AS AND FOR A TWENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
`
`25.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of payment.
`
`AS AND FOR A TWENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
`
`26.
`
`Upon information and belief, some or all of the causes of action may not be
`
`maintained because of release.
`
`AS AND FOR A TWENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
`
`27.
`
`Upon information and belief, Plaintiffs have made claims concerning Plaintiffs’
`
`alleged injuries in other matters, including but not limited to claims submitted to various trusts,
`
`which claims foreclose Plaintiffs’ claims against Defendant.
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`5 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A TWENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
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`28.
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`This Court lacks jurisdiction over Defendant by reason of improper service of
`
`process.
`
`AS AND FOR A TWENTY-NINTH SEPARATE AND COMPLETE DEFENSE
`
`29.
`
`The Verified Complaint, and each purported cause of action stated therein, is
`
`ambiguous and uncertain.
`
`AS AND FOR A THIRTIETH SEPARATE AND COMPLETE DEFENSE
`
`30.
`
`Economic and consequential damages are not properly recoverable in tort actions,
`
`including actions based on negligence or strict liability.
`
`AS AND FOR A THIRTY-FIRST SEPARATE AND COMPLETE DEFENSE
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`31.
`
`Defendant asserts the defense of forum non-conveniens
`
`AS AND FOR A THIRTY-SECOND SEPARATE AND COMPLETE DEFENSE
`
`32.
`
`If the Plaintiffs are barred from recovery, the action of his/her spouse is also
`
`barred because it is a derivative action.
`
`AS AND FOR A THIRTY-THIRD SEPARATE AND COMPLETE DEFENSE
`
`33.
`
`If it is determined that Plaintiffs used asbestos containing products or components
`
`of these products and it is determined that said products or components were sold by or on behalf
`
`of the United States of America, then Defendant is entitled to any sovereign or governmental
`
`immunity available to the United States of America.
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`AS AND FOR A THIRTY-FOURTH SEPARATE AND COMPLETE DEFENSE
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`34.
`
`Plaintiffs voluntarily assumed the risk of injury.
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`6 of 23
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`AS AND FOR A THIRTY-FIFTH SEPARATE AND COMPLETE DEFENSE
`
`35.
`
`If Plaintiffs sustained damages as alleged, such damages occurred while Plaintiffs
`
`engaged in activities into which Plaintiffs entered, knowing the hazard, risk and danger of the
`
`activities and they assumed the risks incidental to and attendant to the activities.
`
`AS AND FOR A THIRTY-SIXTH SEPARATE AND COMPLETE DEFENSE
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`36.
`
`Plaintiffs were sophisticated users and were fully aware of any and all potentially
`
`dangerous conditions.
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`AS AND FOR A THIRTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
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`37.
`
`No acts or omissions of Defendant proximately caused Plaintiffs’ damages.
`
`AS AND FOR A THIRTY- EIGHTH SEPARATE AND COMPLETE DEFENSE
`
`38.
`
`To the extent Plaintiffs were exposed to any product containing asbestos as a
`
`result of conduct by Defendant, which is denied, said exposure was de minimis and not a
`
`substantial contributing factor to any asbestos-related disease which Plaintiffs may have
`
`developed, such that Plaintiffs’ claim is not actionable at law or equity.
`
`AS AND FOR A THIRTY- NINTH SEPARATE AND COMPLETE DEFENSE
`
`39.
`
`Exposure to asbestos fibers allegedly attributable to Defendant was so de minimis
`
`so as to be insufficient as a matter of law to enable Plaintiffs to establish to a reasonable degree
`
`of probability that the products are capable of causing injury or damages and must be considered
`
`speculative as a matter of law.
`
`
`
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`7 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A FORTIETH SEPARATE AND COMPLETE DEFENSE
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`40.
`
`Finished or otherwise encapsulated asbestos-containing products are not
`
`unreasonably dangerous as a matter of law.
`
`AS AND FOR A FORTY-FIRST SEPARATE AND COMPLETE DEFENSE
`
`41.
`
`At all times, Defendant acted reasonably and with due care toward Plaintiffs.
`
`Defendant was not negligent, reckless, did not engage in misconduct or willful misconduct and
`
`did not act with wanton disregard for the rights, safety, and position of Plaintiffs or any other
`
`person.
`
`AS AND FOR A FORTY-SECOND SEPARATE AND COMPLETE DEFENSE
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`42.
`
`The damages allegedly sustained by Plaintiffs, which Defendant denies, were not
`
`caused by any product manufactured, sold, distributed, supplied or installed by Defendant.
`
`AS AND FOR A FORTY-THIRD SEPARATE AND COMPLETE DEFENSE
`
`43.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in part, by
`
`the negligence or other culpable conduct of Plaintiffs and/or one or more persons or
`
`instrumentalities over which Defendant had no control and with whom it had no legal
`
`relationship, which conduct constituted a supervening cause of Plaintiffs’ alleged injuries.
`
`AS AND FOR AN FORTY-FOURTH SEPARATE AND COMPLETE DEFENSE
`
`44.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in part,
`
`through unavoidable and/or unforeseeable natural consequences and/or the idiosyncrasy of
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`Plaintiffs’ Decedent’s bodily composition and consequential unforeseeable reaction to the
`
`product, if any, and/or one or more of its components, if any.
`
`
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`8 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A FORTY-FIFTH SEPARATE AND COMPLETE DEFENSE
`
`45.
`
`Defendant was under no duty to warn purchasers, their employees, other
`
`independent contractors, or those under their control. If such warning was required, purchaser or
`
`Plaintiffs’ employer owed a duty to warn and their failure to do so was a superseding proximate
`
`cause of injury.
`
`AS AND FOR A FORTY-SIXTH SEPARATE AND COMPLETE DEFENSE
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`46.
`
`Defendant denies that there was any defect and/or negligence in the mining,
`
`processing, manufacture, designing, testing, investigation, fashioning, packaging, distribution,
`
`delivery, and/or sale, in any asbestos product or material referred to in Plaintiffs’ Verified
`
`Complaint, but if there was any defect or negligence as alleged, then the Defendant is not liable
`
`as it justifiably relied upon inspection by others in the regular course of trade and business, and
`
`their failure constitutes a superseding proximate cause of any alleged injury suffered by
`
`Plaintiffs.
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`AS AND FOR A FORTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
`
`47.
`
`Plaintiffs’ claims are completely barred or diminished pursuant to the doctrine of
`
`comparative negligence.
`
`AS AND FOR A FORTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
`
`48.
`
`Any damages which Plaintiffs sustained resulted solely from Plaintiffs’ own
`
`negligence.
`
`AS AND FOR A FORTY-NINTH SEPARATE AND COMPLETE DEFENSE
`
`49.
`
`To the extent that Plaintiffs rely upon allegations of negligence, breach of
`
`warranty, fraudulent representation and strict products liability as against Defendant prior to
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`September 1, 1975, the Verified Complaint fails to state a cause of action against Defendant by
`
`reason of its failure to allege the freedom of Plaintiffs from contributory negligence. Insofar as
`
`the Verified Complaint, and each cause of action considered separately, alleges a cause of action
`
`accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of
`
`damages recoverable thereon must be diminished by reason of the culpable conduct attributable
`
`to the Plaintiffs, including contributory negligence and assumption of risk, in the proportion
`
`which the culpable conduct attributable to the Plaintiffs bear on the culpable conduct which
`
`caused the damages.
`
`AS AND FOR A FIFTIETH SEPARATE AND COMPLETE DEFENSE
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`50.
`
`If Defendant was on notice of any hazard or defect for which Plaintiffs seek relief,
`
`which Defendant denies, Plaintiffs also had such notice of the existing hazard at or about the
`
`same time as Defendant and are thereby barred from recovery.
`
`AS AND FOR A FIFTY-FIRST SEPARATE AND COMPLETE DEFENSE
`
`51.
`
`Plaintiffs were warned of risk of exposure to use of asbestos-containing materials
`
`and failed to take necessary or recommended precautions to prevent against the risk of injury.
`
`AS AND FOR A FIFTY-SECOND SEPARATE AND COMPLETE DEFENSE
`
`52.
`
`Plaintiffs contributed to the illness, either in whole or in part, by exposure to or
`
`the use of tobacco products and/or other substances, products, medications or drugs.
`
`AS AND FOR A FIFTY-THIRD SEPARATE AND COMPLETE DEFENSE
`
`53.
`
`Plaintiffs failed to provide any timely notice to Defendant of any alleged defect in
`
`any product which Defendant allegedly supplied or manufactured.
`
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`10 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`
`
`AS AND FOR A FIFTY-FOURTH SEPARATE AND COMPLETE DEFENSE
`
`54.
`
`Any product sold, manufactured, marketed or distributed by Defendant was in all
`
`respects fit and suitable for its intended and reasonably foreseeable uses and was not in a
`
`defective or dangerous condition when it left Defendant’s possession and control.
`
`AS AND FOR A FIFTY-FIFTH SEPARATE AND COMPLETE DEFENSE
`
`55.
`
`Any asbestos products sold or used by Defendant were not inherently defective,
`
`unsafe, ultra-hazardous, dangerous, deleterious, poisonous, and/or otherwise legally harmful and
`
`were not incorrectly packaged.
`
`AS AND FOR A FIFTY-SIXTH SEPARATE AND COMPLETE DEFENSE
`
`56.
`
`At the time any product left Defendant’s control, there was no practical and/or
`
`technically feasible safer alternative design that would have prevented the harm without
`
`substantially impairing the reasonably anticipated and intended function of that product.
`
`AS AND FOR A FIFTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
`
`57.
`
`Defendant did not have a duty to test any asbestos products which it might have
`
`sold, used or received from a third party.
`
`AS AND FOR A FIFTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
`
`58.
`
`Any asbestos-containing product sold by Defendant or used in conjunction with
`
`products sold by Defendant that may have been present at Plaintiffs’ job locations were installed
`
`or configured on the basis of the specifications, approval or at the instruction of governmental or
`
`legislative agencies or other regulatory bodies.
`
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`11 of 23
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`
`
`AS AND FOR A FIFTY-NINTH SEPARATE AND COMPLETE DEFENSE
`
`59.
`
`Any asbestos-containing product sold by Defendant or used in conjunction with
`
`products sold by Defendant that may have been present at Plaintiffs’ job locations were installed
`
`or configured on the basis of the specifications, approval or at the instruction Plaintiffs’
`
`employers.
`
`AS AND FOR A SIXTIETH SEPARATE AND COMPLETE DEFENSE
`
`60.
`
`To the extent that Plaintiffs allege exposure to products manufactured by
`
`Defendant for a government or shipyard contract, the government had a contractual right to
`
`specify how the contract would be complied with, the government exercised that right, and
`
`Defendant complied with those specifications.
`
`AS AND FOR A SIXTY-FIRST SEPARATE AND COMPLETE DEFENSE
`
`61.
`
`The damages sustained by Plaintiffs arising from his or her alleged exposure to
`
`asbestos-containing products while working on or near the equipment or other product allegedly
`
`manufactured or sold by Defendant (the “Product”), were caused, in whole or in part, by the
`
`improper use and operation of the Product, rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the Product by Defendant.
`
`AS AND FOR A SIXTY-SECOND SEPARATE AND COMPLETE DEFENSE
`
`62.
`
`The damages sustained by the Plaintiffs which allegedly arose from the product
`
`were caused by its alteration, misuse and/or improper maintenance by one or more persons or
`
`instrumentalities other than Defendant, rather than any defect in the design, manufacture,
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`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection
`
`of the product by Defendant.
`
`AS AND FOR A SIXTY-THIRD SEPARATE AND COMPLETE DEFENSE
`
`63.
`
`At all times and places mentioned in the Verified Complaint, the Plaintiffs and/or
`
`other persons used this Defendant’s products, if indeed any were used, in an unreasonable
`
`manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products
`
`were not intended, manufactured, or designed; Plaintiffs’ injuries and damages, if any, were
`
`directly and proximately caused by said misuse and abuse, and Plaintiffs’ recovery herein, if any
`
`is barred or must be diminished in proportion to the fault attributable to the Plaintiffs and/or such
`
`other parties and person.
`
`AS AND FOR A SIXTY-FOURTH SEPARATE AND COMPLETE DEFENSE
`
`64.
`
`“Market share” or “enterprise” liability doctrine does not apply to this action.
`
`Defendant is not liable under any such theory.
`
`AS AND FOR A SIXTY-FIFTH SEPARATE AND COMPLETE DEFENSE
`
`65.
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged
`
`in the Verified Complaint.
`
`AS AND FOR A SIXTY-SIXTH SEPARATE AND COMPETE DEFENSE
`
`66.
`
`Any alleged liability of Defendant must be reduced by operation of GOL
`
`§ 15-108.
`
`AS AND FOR A SIXTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
`
`67.
`
`Pursuant to Article 16 of the CPLR should the liability, if any, of Defendant be
`
`found to be 50% or less of the total liability assigned to all parties liable, then Defendant’s
`
`13 of 23
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`liability to Plaintiffs for non-economic loss shall be limited to said Defendant’s equitable share,
`
`as determined in accordance with the relative culpability of each party causing or contributing to
`
`the total liability for non-economic loss of Plaintiffs.
`
`AS AND FOR A SIXTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
`
`68.
`
`In the event that Plaintiffs succeed in establishing that any conduct of Defendant
`
`caused or contributed to the injuries which Plaintiffs allege, any damages awarded against
`
`Defendant must be reduced pro tanto by any workmen’s compensation to which the Plaintiffs are
`
`or may be entitled under the applicable statutes.
`
`AS AND FOR A SIXTY-NINTH SEPARATE AND COMPLETE DEFENSE
`
`69.
`
`Upon information and belief, Plaintiffs’ economic loss, if any, as specified in
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`§4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral
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`sources, and the answering Defendant is entitled to have the Court consider the same in
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`determining such special damages as provided in §4545 of the CPLR.
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`AS AND FOR A SEVENTIETH SEPARATE AND COMPLETE DEFENSE
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`70.
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`To the extent that Plaintiffs sustained injuries from the use of a product sold by
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`Defendant that is alleged to have contained asbestos, which is denied, Plaintiffs, Plaintiffs’
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`decedents, other defendants or other parties not under the control of Defendant misused, abused,
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`misapplied and otherwise mishandled the part of the product alleged to have been asbestos
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`material. Therefore, the amount of damages must be diminished by the proportion, which said
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`misuse, abuse, misapplication and mishandling bears to the conduct, which allegedly caused
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`Plaintiffs’ damage or injury.
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A SEVENTY-FIRST SEPARATE AND COMPLETE DEFENSE
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`71.
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`In the event it should be proven at the time of trial that all defendants are subject
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`to market share liability, then Defendant’s share of such liability would be of such a de minimis
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`amount as to make its contribution for damages negligible, and Defendant would be entitled to
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`contribution, either in whole or in part, and/or indemnification from co-defendants.
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`AS AND FOR A SEVENTY-SECOND SEPARATE AND COMPLETE DEFENSE
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`72.
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`All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July
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`31, 1986) are time-barred in that said statute is in violation of the Constitution of the United
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`States and the Constitution of the State of New York.
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`AS AND FOR A SEVENTY-THIRD SEPARATE AND COMPLETE DEFENSE
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`73.
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`To the extent that Plaintiffs are unable to identify any manufacturer of any
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`product which allegedly caused his or her injuries, Plaintiffs cannot state a claim upon which
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`relief may be granted because that failure would violate Defendant’s constitutional rights: (1) to
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`substantive and procedural due process of law and equal protection guaranteed by the Fourteenth
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`Amendment of the United States Constitution and the New York Constitution; and (2) protection
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`against the taking of private property for public use without just compensation guaranteed by the
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`Fourteenth Amendment of the United States Constitution and by the New York Constitution.
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`AS AND FOR A SEVENTY-FOURTH SEPARATE AND COMPLETE DEFENSE
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`74.
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`At all times relevant to this litigation, the agents, servants and/or employees of
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`Defendant utilized proper methods in the conduct of its operations, in conformity with the
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`available knowledge and research of the scientific, industrial and medical communities, and
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`thereby complied with the state of the art existing at all relevant times. In the event that any
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`15 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`product manufactured or supplied by Defendant is determined to have been dangerous,
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`Defendant was unaware of that danger and discovery of it was beyond the state of the art at that
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`time.
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`AS AND FOR A SEVENTY-FIFTH SEPARATE AND COMPLETE DEFENSE
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`75.
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`Products or materials manufactured, designed, sold, distributed, supplied and/or
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`utilized by this answering Defendant were accompanied by adequate warnings which were in
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`conformity with the existing state of the art in regard to the foreseeable use of said products or
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`materials.
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`AS AND FOR A SEVENTY-SIXTH SEPARATE AND COMPLETE DEFENSE
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`76.
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`Defendant is not liable for the damages allegedly sustained by Plaintiffs because
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`Plaintiffs are not in privity of contract with Defendant at any time and the product was not
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`inherently dangerous.
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`AS AND FOR A SEVENTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
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`77.
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`No implied warranties, including the warranties of merchantability and fitness for
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`a particular purpose, became a part of the basis of the bargain in the sale of the product.
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`AS AND FOR A SEVENTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
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`78.
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`Oral warranties upon which Plaintiffs allegedly relied are unavailable as violative
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`of the provisions of the applicable Statute of Frauds.
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`AS AND FOR A SEVENTY-NINTH SEPARATE AND COMPLETE DEFENSE
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`79.
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`Plaintiffs did not directly or indirectly purchase any asbestos-containing products
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`from Defendant and, therefore, were not the recipient of an express or implied warranty made by
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`Defendant.
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`16 of 23
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR AN EIGHTIETH SEPARATE AND COMPLETE DEFENSE
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`80.
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`Defendant breached no warranties, express or implied.
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`AS AND FOR AN EIGHTY-FIRST SEPARATE AND COMPLETE DEFENSE
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`81.
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`Any breach of warranty claim is barred by written disclaimers and exclusions on
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`the labels of the subject products.
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`AS AND FOR AN EIGHTY-SECOND SEPARATE AND COMPLETE DEFENSE
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`82.
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`Plaintiffs did not reasonably and justifiably rely on any alleged representations or
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`warranties – express or implied.
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`AS AND FOR AN EIGHTY-THIRD SEPARATE AND COMPLETE DEFENSE
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`83.
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`Plaintiffs’ claims if based upon the allegations of express or implied warranty are
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`barred because no sale of goods occurred.
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`AS AND FOR AN EIGHTY-FOURTH SEPARATE AND COMPLETE DEFENSE
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`84.
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`Plaintiffs and all third-party beneficiaries of any warranties, express or implied,
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`relating to Defendant’s product or services failed to provide notice of the alleged breaches
`
`pursuant to the applicable provision of the Uniform Commercial Code.
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`AS AND FOR AN EIGHTY-FIFTH SEPARATE AND COMPLETE DEFENSE
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`85.
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`The concept of strict liability does not apply to this litigation.
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`AS AND FOR AN EIGHTY-SIXTH SEPARATE AND COMPLETE DEFENSE
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`86.
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`Defendant denies that the asbestos products alleged in Plaintiffs’ Verified
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`Complaint are products within the meaning and scope of the Restatement of Torts Section 402A
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`and as such the Verified Complaint fails to state a cause of action in strict liability.
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`17 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR AN EIGHTY-SEVENTH SEPARATE AND COMPLETE DEFENSE
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`87.
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`Defendant cannot be held liable under principles of strict tort liability because
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`products manufactured and/or products which left Defendant’s possession did so prior to the
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`enactment of New York’s law regarding strict liability.
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`AS AND FOR AN EIGHTY-EIGHTH SEPARATE AND COMPLETE DEFENSE
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`88.
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`Plaintiffs’ cause of action for exemplary or punitive damages is barred because
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`such damages are not recoverable under applicable law or otherwise unwarranted in this action.
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`AS AND FOR AN EIGHTY-NINTH SEPARATE AND COMPLETE DEFENSE
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`89.
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`Plaintiffs’ demands for punitive damages are barred by the due process clauses of
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`the Fourteenth Amendment to the United States Constitution and the New York State
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`Constitution.
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`AS AND FOR A NINETIETH SEPARATE AND COMPLETE DEFENSE
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`90.
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`Plaintiffs’ demands for punitive damages are barred by the proscription of the
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`Eighth Amendment to the United States Constitution, as applied to the states through the
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`Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting
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`the imposition of excessive fines.
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`AS AND FOR A NINETY-FIRST SEPARATE AND COMPLETE DEFENSE
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`91.
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`Plaintiffs’ demands for punitive damages are barred by the “double jeopardy”
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`clause of the Fifth Amendment to the United States Constitution, as applied to the states through
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`the Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
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`18 of 23
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A NINETY-SECOND SEPARATE AND COMPLETE DEFENSE
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`92.
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`Punitive damages cannot be awarded against this Defendant for any of the alleged
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`actions or omissions of any of this Defendant’s predecessors because there is not a sufficient
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`degree of identity between this Defendant and any of its predecessors to justify such an award.
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`AS AND FOR A NINETY-THIRD SEPARATE AND COMPLETE DEFENSE
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`93.
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`Defendant did not take part in and was not part of or party to any conspiracy.
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`AS AND FOR A NINETY-FOURTH SEPARATE AND COMPLETE DEFENSE
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`94.
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`Defendant did not make any misrepresentation and/or commit any fraudulent acts.
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`AS AND FOR A NINETY-FIFTH SEPARATE AND COMPLETE DEFENSE
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`95.
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`Defendant did not distort or cause to be distorted any medical examinations,
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`results or data, did not edit or alter medical literature, did not attempt to prevent the publication
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`of medical literature and did not distort or cause to be distorted medical information.
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`AS AND FOR A NINETY-SIXTH SEPARATE AND COMPLETE DEFENSE
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`96.
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`If Plaintiffs have received, or are now or subsequently become entitled to recover,
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`any compensation or benefits from any source in connection with the harm alleged in the
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`Verified Complaint, including economic and non-economic loss, the amount of damages, if any,
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`that may be recoverable in this civil action must be diminished by the amount of such recovery,
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`compensation and/or benefits.
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`AS AND FOR A NINETY-SEVENTH SEPARATE AND COMPLETE DEFENSE
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`97.
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`Defendant alleges that Plaintiffs and/or his or her agents negligently or
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`intentionally failed to preserve and permitted the spoliation of material evidence including but
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`not limited to the products which Plaintiffs allege give rise to his Verified complaint. Such
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`19 of 23
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`RECEIVED NYSCEF: 12/19/2023
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`conduct bars Plaintiffs’ action and/or gives rise to evidentiary sanctions against Plaintiffs and/or
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`other remedies for this defendant.
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`AS AND FOR A NINETY-EIGHTH SEPARATE AND COMPLETE DEFENSE
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`98.
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`The Order of the Bankruptcy Court, which prevents Defendant from joining
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`indispensable parties who have declared bankruptcy, has the effect of requiring this defendant to
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`defend this action without those other parties as co-defendants and prevents the Court from being
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`able to hear and adjudge all relevant evidence in regard to Plaintiffs’ claims and therefore denies
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`this defendant its constitutional right to due process under the Fourteenth Amendment of the
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`United States Constitution.
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`AS AND FOR A NINETY-NINTH SEPARATE AND COMPLETE DEFENSE
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`99.
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`Plaintiffs may not pursue the claim for loss of consortium pursuant to the matter
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`of Consorti v. Owens-Corning, 86 N.Y.2d 449 (1995).
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`AS AND FOR A ONE-HUNDREDTH SEPARATE AND COMPLETE DEFENSE
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`100. All defenses which have been or will be asserted by other defendants and/or any
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`third-party defendants in this action are adopted and incorporated by reference as if fully set
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`forth at length herein as defenses to Plaintiffs’ Verified Complaint. In addition, Defendant will
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`rely upon any and all other further defenses which become available or appear during discovery
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`proceedings in this action and hereby specifically reserves the right to amend its answer for the
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`purposes of asserting any such additional defenses.
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`20 of 23
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`NYSCEF DOC. NO. 6
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 12/19/2023
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`AS AND FOR A ONE HUNDREDTH AN
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