`NYSCEF DOC. NO. 62
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`INDEX NO. 814633/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`TROY SHANE SMITH and ALLYSON JANE
`SMITH,
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` Plaintiffs,
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` -against-
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`84 LUMBER COMPANY; et al.
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` Defendants.
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`Index No. 814633/2023
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`COOPER BUSSMANN’S
`VERIFIED ANSWER WITH
`CROSS-CLAIMS
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`Defendant Cooper Bussmann, sued herein as “Cooper Bussmann, a Division of Cooper
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`
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`Industries” (“Cooper Bussmann” or “Defendant”), by its attorneys Darger Errante Yavitz & Blau
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`LLP, for its Verified Answer with Cross-Claims (“Answer”) to the Complaint (“Complaint”) filed
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`by Plaintiffs Troy Shane Smith and Allyson Jane Smith (“Plaintiff” or collectively “Plaintiffs”):
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`THE PARTIES
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`1.
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`Denies knowledge and information sufficient to form a belief with respect to the
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`truth of all allegations contained in Paragraphs 1 through 3 (inclusive) of the Complaint.
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`2.
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`Paragraph 4 of Plaintiffs’ Complaint contains no allegations to which a response is
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`required; to the extent a response is required, Cooper Bussmann denies knowledge or information
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`sufficient to form a belief as to the truth of the allegations set forth.
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`3.
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`Denies the allegations contained in Paragraph 5 of the Complaint to the extent that
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`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
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`of the allegations as they pertain to other parties.
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`4.
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`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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`5.
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`Denies the allegations contained in Paragraph 21 of the Complaint, except to admit
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`that Cooper Bussmann has done business in the State of New York.
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`6.
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`Denies knowledge and information sufficient to form a belief with respect to the
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`truth of all allegations contained in Paragraphs 22 through 61 (inclusive) of the Complaint.
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`7.
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`Denies the allegations contained in Paragraph 62 of the Complaint to the extent that
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`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
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`of the allegations as they pertain to other parties.
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`8.
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`Cooper Bussmann denies the allegations contained in Paragraphs 63 through 69
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties.
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`AS TO THE FIRST CAUSE OF ACTION
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`9.
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`In response to Paragraph 70 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`10.
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`Cooper Bussmann denies the allegations contained in Paragraphs 71 through 78
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`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
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`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
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`they pertain to other parties.
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`AS TO THE SECOND CAUSE OF ACTION
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`11.
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`In response to Paragraph 79 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`12.
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`Cooper Bussmann denies the allegations contained in Paragraphs 80 through 83
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties.
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`AS TO THE THIRD CAUSE OF ACTION
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`13.
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`In response to Paragraph 84 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`14.
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`Cooper Bussmann denies the allegations contained in Paragraphs 85 through 93
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties.
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`AS TO THE FOURTH CAUSE OF ACTION
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`15.
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`In response to Paragraph 94 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`16.
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`Cooper Bussmann denies the allegations contained in Paragraphs 95 through 112
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`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
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`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
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`they pertain to other parties and refers all questions of law to the Court.
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`AS TO THE FIFTH CAUSE OF ACTION
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`17.
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`In response to Paragraph 113 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`18.
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`Cooper Bussmann denies knowledge or information sufficient to form a belief as
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`to the truth of the allegations contained in Paragraphs 114 through 120 (inclusive) of the Complaint
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`and refers all questions of law to the Court.
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`AS TO THE SIXTH CAUSE OF ACTION
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`19.
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`In response to Paragraph 121 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`20.
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`Cooper Bussmann denies the allegations contained in Paragraphs 122 through 136
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`(inclusive) of the Complaint, including all subparts therein, as they pertain to Cooper Bussmann,
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`and denies knowledge or information sufficient to form a belief as to the truth of the allegations as
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`they pertain to other parties.
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`AS TO THE SEVENTH CAUSE OF ACTION
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`21.
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`In response to Paragraph 137 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`22.
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`Paragraph 138 of Plaintiffs’ Complaint contains no allegations to which a response
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`is required; to the extent a response is required, Cooper Bussmann denies the allegations and denies
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`knowledge or information sufficient to form a belief as to the truth of the allegations set forth
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`insofar as they pertain to other parties.
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`23.
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`Cooper Bussmann denies the allegations contained in Paragraphs 139 through 150
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties.
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`AS TO THE EIGHTH CAUSE OF ACTION
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`24.
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`In response to Paragraph 151 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`25.
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`Cooper Bussmann denies the allegations contained in Paragraphs 152 through 166
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties.
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`AS TO THE NINTH CAUSE OF ACTION
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`26.
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`In response to Paragraph 167 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`27.
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`Cooper Bussmann denies the allegations contained in Paragraphs 168 through 179
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`(inclusive) of the Complaint as they pertain to Cooper Bussmann, and denies knowledge or
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`information sufficient to form a belief as to the truth of the allegations as they pertain to other
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`parties and refers all questions of law to the Court.
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`AS TO THE TENTH CAUSE OF ACTION
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`28.
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`In response to Paragraph 180 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`29.
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`Cooper Bussmann denies the allegations contained in Paragraph 181 of the
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`Complaint as they pertain to Cooper Bussmann, and denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations as they pertain to other parties.
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`AS TO THE ELEVENTH CAUSE OF ACTION
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`30.
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`In response to Paragraph 182 contained in Plaintiffs’ Complaint, Cooper Bussmann
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`repeats and reiterates each and every response contained hereinabove with the same force and
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`effect as if hereinafter set forth at length.
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`31.
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`Denies knowledge and information sufficient to form a belief with respect to the
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`truth of all allegations contained in Paragraphs 183 of the Complaint.
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`32.
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`Cooper Bussmann denies the allegations contained in Paragraph 184 of the
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`Complaint as they pertain to Cooper Bussmann, and denies knowledge or information sufficient
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`to form a belief as to the truth of the allegations as they pertain to other parties.
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`AS AND FOR A
`FIRST AFFIRMATIVE DEFENSE
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`33.
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`The Court lacks jurisdiction over the subject matter of this action.
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`AS AND FOR A
`SECOND AFFIRMATIVE DEFENSE
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`34.
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`This Court lacks personal jurisdiction over Cooper Bussmann.
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`AS AND FOR A
`THIRD AFFIRMATIVE DEFENSE
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`35.
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`All claims are time-barred by the applicable Statute of Limitations.
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`AS AND FOR A
`FOURTH AFFIRMATIVE DEFENSE
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`36.
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`All claims are barred by the applicable statute of repose.
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`AS AND FOR A
`FIFTH AFFIRMATIVE DEFENSE
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`37.
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`All causes of action have not been maintained in a timely fashion and Plaintiff has
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`neglected the same and should be barred by the doctrine of laches.1
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`AS AND FOR A
`SIXTH AFFIRMATIVE DEFENSE
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`38.
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`All claims should be dismissed based upon inconvenient forum.
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`AS AND FOR A
`SEVENTH AFFIRMATIVE DEFENSE
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`39.
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`Plaintiff lacks the legal capacity, standing, and authority to bring this action.
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`AS AND FOR AN
`EIGHTH AFFIRMATIVE DEFENSE
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`40.
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`All claims should be dismissed based upon waiver.
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`AS AND FOR A
`NINTH AFFIRMATIVE DEFENSE
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`41.
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`All claims should be dismissed based upon the doctrines of accord and satisfaction,
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`judicial estoppel, payment and release, collateral estoppel and/or res judicata.
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`AS AND FOR A
`TENTH AFFIRMATIVE DEFENSE
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`42.
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`All claims should be dismissed based upon documentary evidence.
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`AS AND FOR AN
`ELEVENTH AFFIRMATIVE DEFENSE
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`43.
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`All claims should be dismissed based upon Plaintiff’s infancy or other disability.
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`1 The term “Plaintiff,” as used in the Affirmative Defenses, refers to “Plaintiff” individually or “Plaintiffs”
`collectively, as appropriate.
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`AS AND FOR A
`TWELFTH AFFIRMATIVE DEFENSE
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`44.
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`Any damages sustained by Plaintiff were the result of an intervening and/or
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`superseding cause not of Cooper Bussmann’s doing.
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`AS AND FOR A
`THIRTEENTH AFFIRMATIVE DEFENSE
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`45.
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`The Complaint and each and every allegation considered separately fail to state any
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`cause of action against Cooper Bussmann upon which relief can be granted.
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`AS AND FOR A
`FOURTEENTH AFFIRMATIVE DEFENSE
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`46.
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`This action is barred by Plaintiff’s failure to join necessary and/or indispensable
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`parties without which this action should not proceed and should be dismissed.
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`AS AND FOR A
`FIFTEENTH AFFIRMATIVE DEFENSE
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`47.
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`Venue is improper.
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`AS AND FOR A
`SIXTEENTH AFFIRMATIVE DEFENSE
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`48.
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`There is a lack or insufficiency of service of process upon Cooper Bussmann.
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`AS AND FOR A
`SEVENTEENTH AFFIRMATIVE DEFENSE
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`49.
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`Plaintiff’s claims are or may be barred or otherwise limited or affected by the
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`application of provisions of the law or statutes of states or jurisdictions other than the State of New
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`York where Plaintiff’s alleged exposure may have occurred.
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`AS AND FOR AN
`EIGHTEENTH AFFIRMATIVE DEFENSE
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`50.
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`Plaintiff’s claims are or may be barred or otherwise limited by reason of accord and
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`satisfaction.
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`AS AND FOR A
`NINETEENTH AFFIRMATIVE DEFENSE
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`51.
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`In the event that Plaintiff was employed by Cooper Bussmann, Plaintiff’s sole and
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`exclusive remedy is under the Workers’ Compensation Law of the State of New York, the
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`Longshoremen’s and Harbor Workers’ Compensation Act, and the workers’ compensation laws
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`of any other state, jurisdiction, and/or venue where Plaintiff may have worked.
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`AS AND FOR A
`TWENTIETH AFFIRMATIVE DEFENSE
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`52.
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`Plaintiff’s loss of consortium claim is barred as a matter of law to the extent that
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`the alleged exposure to Cooper Bussmann’s product, material, or equipment predates the date of
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`Plaintiff’s marriage.
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`AS AND FOR A
`TWENTY-FIRST AFFIRMATIVE DEFENSE
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`53.
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`The alleged injuries were or may have been due to exposure to products, materials,
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`or equipment of manufacturers, distributors, or suppliers not named as defendants in this action.
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`AS AND FOR A
`TWENTY-SECOND AFFIRMATIVE DEFENSE
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`54.
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`Plaintiff’s alleged injuries were not caused by exposure to any alleged Cooper
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`Bussmann product, material, or equipment.
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`AS AND FOR A
`TWENTY-THIRD AFFIRMATIVE DEFENSE
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`55.
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`Cooper Bussmann denies any successor liability for any product, material or
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`equipment from which Plaintiff alleges injuries.
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`AS AND FOR A
`TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`56.
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`To the extent that Plaintiff worked with or around any product, material, or
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`equipment manufactured, sold, or distributed by Cooper Bussmann, said product, material, or
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`equipment did not contain asbestos.
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`AS AND FOR A
`TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`57.
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`Cooper Bussmann did not specify, recommend, direct, or require the use of asbestos
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`or asbestos containing products, materials, or equipment.
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`AS AND FOR A
`TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`58.
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`Cooper Bussmann denies that Plaintiff had any exposure to any asbestos or
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`asbestos-containing product, material, or equipment mined, processed, manufactured, supplied,
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`developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the
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`stream of commerce by Cooper Bussmann and, more particularly, denies upon information and
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`belief that Cooper Bussmann mined, processed, manufactured, supplied, developed, tested,
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`fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of
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`commerce any asbestos or asbestos-containing product, material, or equipment at the times and
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`upon the dates alleged by Plaintiff.
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`AS AND FOR A
`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`59.
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`Cooper Bussmann specifically denies that the asbestos or asbestos-containing
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`products, material, or equipment to which Plaintiff alleges exposure are products within the
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`meaning and scope of the Restatement of Torts § 402A, and as such, the Complaint fails to state a
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`cause of action in strict liability.
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`AS AND FOR A
`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`60.
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`In the event Plaintiff should prove exposure to any Cooper Bussmann product,
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`material, or equipment, such exposure was de minimis and not sufficient to establish by a
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`reasonable degree of probability that any Cooper Bussmann product, material, or equipment
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`caused any alleged injury.
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`AS AND FOR A
`TWENTY-NINTH AFFIRMATIVE DEFENSE
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`61.
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`In the event Plaintiff should prove exposure at any location for which Cooper
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`Bussmann is claimed to be legally liable, such exposure was de minimis and not sufficient to
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`establish by a reasonable degree of probability that any Cooper Bussmann product, material, or
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`equipment caused any alleged injury.
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`AS AND FOR A
`THIRTIETH AFFIRMATIVE DEFENSE
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`62.
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`Contact with or use by Plaintiff of any asbestos or asbestos-containing products,
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`materials, or equipment supplied, sold, or manufactured by Cooper Bussmann was not a substantial
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`contributing cause of any alleged injury.
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`AS AND FOR A
`THIRTY-FIRST AFFIRMATIVE DEFENSE
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`63.
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`To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a
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`location for which Cooper Bussmann is claimed to be legally liable at a time when Cooper
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`Bussmann had no legal relationship to that location, Cooper Bussmann cannot be held liable for
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`the alleged injuries.
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`AS AND FOR A
`THIRTY-SECOND AFFIRMATIVE DEFENSE
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`64.
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`Plaintiff’s claims against Cooper Bussmann must be dismissed because Cooper
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`Bussmann did not own, lease, occupy, possess, supervise, manage, and/or control the area at or
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`near the location where Plaintiff was allegedly injured.
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`AS AND FOR A
`THIRTY-THIRD AFFIRMATIVE DEFENSE
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`65.
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`Plaintiff’s claims against Cooper Bussmann must be dismissed because Cooper
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`Bussmann did not supervise, control, manage, and/or direct Plaintiff, Plaintiff’s employer,
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`Plaintiff’s coworkers, and/or any person or persons in the area at or near the location where
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`Plaintiff was allegedly injured.
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`AS AND FOR A
`THIRTY-FOURTH AFFIRMATIVE DEFENSE
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`66.
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`The conditions at and around the location at which Plaintiff was allegedly injured
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`constituted open and obvious hazards against which Cooper Bussmann had no duty to warn.
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`AS AND FOR A
`THIRTY-FIFTH AFFIRMATIVE DEFENSE
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`67.
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`To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a
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`location for which Cooper Bussmann is claimed to be legally liable, Plaintiff’s claims against
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`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,
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`Plaintiff’s employer, Plaintiff’s co-workers, and/or any person or persons in the area at or near the
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`location of Plaintiff’s alleged injury.
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`AS AND FOR A
`THIRTY-SIXTH AFFIRMATIVE DEFENSE
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`68.
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`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
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`reasonable and appropriate precautions so as to avoid injury.
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`AS AND FOR A
`THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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`69.
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`Plaintiff’s claims are barred or limited by the doctrines of contributory negligence
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`and comparative fault.
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`AS AND FOR A
`THIRTY-EIGHTH AFFIRMATIVE DEFENSE
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`70.
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`The alleged injuries were caused directly, solely and proximately by sensitivities,
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`idiosyncrasies, and/or other reactions peculiar to Plaintiff alone and not found in the general public.
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`AS AND FOR A
`THIRTY-NINTH AFFIRMATIVE DEFENSE
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`71.
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`Plaintiff’s significant pre-existing medical conditions caused the alleged injuries
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`and/or damages.
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`AS AND FOR A
`FORTIETH AFFIRMATIVE DEFENSE
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`72.
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`Cooper Bussmann did not have a duty to warn Plaintiff.
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`AS AND FOR A
`FORTY-FIRST AFFIRMATIVE DEFENSE
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`73.
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`All claims are barred or diminished because of Plaintiff’s failure to preserve
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`evidence.
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`AS AND FOR A
`FORTY-SECOND AFFIRMATIVE DEFENSE
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`74.
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`Plaintiff was contributorily negligent in:
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`75. Working with materials he knew or should have known to be hazardous to his
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`health, without use of available protective devices, and without taking reasonable precautions to
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`guard against damages resulting from work with such materials.
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`76.
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`Failing to seek medical treatment and advice, and/or continuing to smoke, after the
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`first manifestation of their alleged asbestos illness;
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`77.
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`Using, in whole or in part, of other substances, products, medications, and drugs;
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`and/or
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`78.
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`As further discovery may reveal.
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`AS AND FOR A
`FORTY-THIRD AFFIRMATIVE DEFENSE
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`79.
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`If Plaintiff used tobacco products, his use was a failure to exercise ordinary care for
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`his own safety and the sole or primary cause of his injuries. The negligence of Plaintiff in using
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`tobacco products or the negligence of third parties engaged in the sale, manufacture, distribution,
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`or use of tobacco products is a partial or complete bar to all claims asserted in Plaintiff’s complaint.
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`AS AND FOR A
`FORTY-FOURTH AFFIRMATIVE DEFENSE
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`80.
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`Plaintiff misused asbestos and/or asbestos-containing products, materials and/or
`
`equipment, which misuse proximately caused and/or contributed to the alleged injuries and
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`damages of which he complains.
`
`AS AND FOR A
`FORTY-FIFTH AFFIRMATIVE DEFENSE
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`81.
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`Plaintiff was warned of the risk of exposure to asbestos and asbestos-containing
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`products, materials and equipment.
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 02/07/2024
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`AS AND FOR A
`FORTY-SIXTH AFFIRMATIVE DEFENSE
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`82.
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`The alleged incident, injuries, and damages of which Plaintiff complains were
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`caused by unauthorized, unintended, and/or improper use of asbestos, asbestos-containing product,
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`material, and/or equipment complained of, and as a result of the failure to exercise reasonable care,
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`caution, or vigilance for which Cooper Bussmann is not legally liable or responsible.
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`AS AND FOR A
`FORTY-SEVENTH AFFIRMATIVE DEFENSE
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`83.
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`The conditions precedent to the maintenance of a wrongful death claim have not
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`been met.
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`AS AND FOR A
`FORTY-EIGHTH AFFIRMATIVE DEFENSE
`
`84.
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`Any amount of damages recoverable based upon the claims and causes of action in
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`the Complaint must be diminished by reason of the culpable conduct attributable to Plaintiff,
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`including contributory negligence and assumption of risk, in the proportion which the culpable
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`conduct attributable to Plaintiff bears to the culpable conduct which caused the damages.
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`AS AND FOR A
`FORTY-NINTH AFFIRMATIVE DEFENSE
`
`85.
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`Each and every cause of action in the Complaint is barred or limited by reason of
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`the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of
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`the risk.
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`AS AND FOR A
`FIFTIETH AFFIRMATIVE DEFENSE
`
`86.
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`Plaintiff failed to mitigate or otherwise act to lessen or reduce the alleged injuries
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`and damages.
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`15
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`15 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 02/07/2024
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`AS AND FOR A
`FIFTY-FIRST AFFIRMATIVE DEFENSE
`
`87.
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`Plaintiff, his coworkers, and/or his employers misused, abused, mistreated,
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`misapplied, and/or substantially modified the product, material, and/or equipment to which
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`Plaintiff alleges exposure.
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`AS AND FOR A
`FIFTY-SECOND AFFIRMATIVE DEFENSE
`
`88.
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`If the Court finds that any misuse, abuse, mistreatment, misapplication, and/or
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`substantial modification of the product, material, or equipment caused and/or contributed to the
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`alleged damages or injuries, Cooper Bussmann requests that the amount of damages that might be
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`recoverable be diminished by the proportion that the same misuse, abuse, mistreatment,
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`misapplication, and/or substantial modification attributed to Plaintiff, his coworkers, and/or his
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`employers bears to the conduct that caused the alleged injuries or damages.
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`AS AND FOR A
`FIFTY-THIRD AFFIRMATIVE DEFENSE
`
`89.
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`Each and every cause of action in the Complaint is barred in whole or in part by the
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`negligence and conduct of Plaintiff’s employers.
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`AS AND FOR A
`FIFTY-FOURTH AFFIRMATIVE DEFENSE
`
`90.
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`Cooper Bussmann asserts the change of the product, material, or equipment’s
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`condition as a defense.
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`AS AND FOR A
`FIFTY-FIFTH AFFIRMATIVE DEFENSE
`
`91.
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`Plaintiff failed to exercise ordinary care for his own safety, and that failure is a
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`partial or complete bar to all claims asserted in the Complaint.
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`16
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`16 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 02/07/2024
`
`AS AND FOR A
`FIFTY-SIXTH AFFIRMATIVE DEFENSE
`
`92.
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`If Plaintiff should prove that injuries and damages were sustained as alleged, such
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`injuries and damages resulted from acts or omissions on the part of third parties over whom Cooper
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`Bussmann had no control or right of control.
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`AS AND FOR A
`FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`
`93.
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`Plaintiff’s claims are barred to the extent they are based on exposure, if any, of
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`Plaintiff to materials or raw materials sold or supplied by Cooper Bussmann as a bulk supplier or
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`a component supplier.
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`AS AND FOR A
`FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`
`94. While Cooper Bussmann denies Plaintiff’s allegations as to negligence, statutory
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`liability, strict liability, premises liability, injury, and damages, to the extent that Plaintiff may be
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`able to prove the same, they were the result of intervening and/or interceding acts of superseding
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`negligence on the part of third parties over whom Cooper Bussmann had neither control nor right
`
`of control.
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`AS AND FOR A
`FIFTY-NINTH AFFIRMATIVE DEFENSE
`
`95.
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`Plaintiff’s employer’s failure to provide the proper equipment to ensure a safe
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`working environment was a proximate cause of the alleged injuries.
`
`AS AND FOR A
`SIXTIETH AFFIRMATIVE DEFENSE
`
`96.
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`Cooper Bussmann at all times relevant hereto complied with all applicable federal,
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`state, and other regulations, and acted reasonably in all of its activities.
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`17
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`17 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 814633/2023
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`RECEIVED NYSCEF: 02/07/2024
`
`AS AND FOR A
`SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`97.
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`Cooper Bussmann is immune from liability for any conduct performed in
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`conformity with the United States government specifications and/or contracts.
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`AS AND FOR A
`SIXTY-SECOND AFFIRMATIVE DEFENSE
`
`98.
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`To the extent that Cooper Bussmann might be held vicariously liable for the actions
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`or inactions of the Federal Occupational Safety and Health Administration (“OSHA”), the Federal
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`Environmental Protection Agency (“EPA”), and/or other federal, state, and city agencies and
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`employees for which those agencies or employees are immune from liability under federal and/or
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`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
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`federal and/or state statute.
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`AS AND FOR A
`SIXTY-THIRD AFFIRMATIVE DEFENSE
`
`99.
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`Cooper Bussmann is immune from liability for any conduct performed in
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`conformity with the specifications mandated by Plaintiff’s employer.
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`AS AND FOR A
`SIXTY-FOURTH AFFIRMATIVE DEFENSE
`
`100. This action is barred by the doctrines of sophisticated purchaser/employer,
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`sophisticated/learned intermediary, and/or sophisticated user.
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`AS AND FOR A
`SIXTY-FIFTH AFFIRMATIVE DEFENSE
`
`101. Cooper Bussmann owed no legal duty to Plaintiff.
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`
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`18
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`18 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 02/07/2024
`
`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
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`governmental entities to take actions to prevent the alleged injuries and damages, was superior to
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`that of Cooper Bussmann and, therefore, if there was a duty to warn Plaintiff, then the duty was
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`on those other persons, business entities, and/or governmental entities, and not on Cooper
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`Bussmann.
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`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
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`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,
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`and/or employees of Cooper Bussmann used proper methods in designing, testing, and
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`manufacturing its products, materials, and equipment in conformity with the federal and state
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`regulations, standards, specifications, and laws in effect; the available knowledge and research of
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`the scientific and industrial communities; the generally recognized and prevailing industry
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`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.
`
`
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`19
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`19 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 02/07/2024
`
`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
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`research of the scientific and industrial communities.
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`AS AND FOR A
`SEVENTIETH AFFIRMATIVE DEFENSE
`
`106. Cooper Bussmann had no knowledge of the dangerous propensities, if any, of the
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`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
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`dangerous, hazardous, or defective character or nature of asbestos or asbestos-containing products,
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`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
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`similarly situated, and that, to the extent such duty arose, adequate warnings either were given or
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`were not necessary under all circumstances.
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`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’
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`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.
`
`
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`20
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`20 of 32
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`FILED: ERIE COUNTY CLERK 02/07/2024 03:50 PM
`NYSCEF DOC. NO. 62
`
`INDEX NO. 814633/2023
`
`RECEIVED NYSCEF: 02/07/2024
`
`AS AND FOR A
`SEVENTY-THIRD AFFIRMATIVE DEFENSE
`
`109. Cooper Bussmann is not a joint tortfeasor with any other defendant herein, and
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`accordingly, Cooper Bussmann may not be jointly and severally liable with other defendants.
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`AS AND FOR A
`SEVENTY-FOURTH AFFIRMATIVE DEFENSE
`
`110. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and
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`unavailable because of the provisions of the applicable Statute of Frauds.
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`AS AND FOR A
`SEVENTY-FIFTH AFFIRMATIVE DEFENSE
`
`111. Cooper Bussmann denies the existence of any express warranty, implie