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