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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
`________________________________________________
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`TROY SHANE SMITH and ALLYSON JANE SMITH,
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`Plaintiffs,
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`84 LUMBER COMPANY, et al.,
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` VERIFIED ANSWER
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` Index No.: 814633/2023
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`
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`vs.
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`Defendants.
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`
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`VERIFIED ANSWER OF HOWDEN NORTH AMERICA INC.
`TO THE VERIFIED COMPLAINT
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`Defendant, Howden North America Inc., herein improperly as Howden Buffalo, Inc.,
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`
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`Individually and as Successor in Interest to FB Sturtevant, The Howden Buffalo Group and Buffalo
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`Fan, (hereinafter “Howden”), by its attorneys, Barclay Damon LLP, as and for its verified answer
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`to the verified complaint, respectfully alleges upon information and belief, as follows:
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`1.
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`Denies knowledge or information sufficient to form a belief as to the truth of each
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`and every allegation, and all subparts thereto, contained in the Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 11,
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`12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37,
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`38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 114, 115,
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`116, 117, 118, 119, 120, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 152,
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`153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 166, and 183 of the verified complaint.
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`2.
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`Denies each and every allegation, and all subparts thereto, contained in Paragraphs
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`2, 5, 62, 63, 64, 65, 66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 82, 85, 86, 87, 88, 89, 90,
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`91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112,
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`122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 163, 164, 165, 168,
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`169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 181, and 184 of the verified complaint as it
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`relates to defendant, Howden, and denies knowledge or information sufficient to form a belief as
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`to the truth of the allegations as to the co-defendants.
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`3.
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`As and for its response to paragraphs 70, 79, 84, 94, 113, 121, 137, 151, 167, 180,
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`and 182, defendant Howden repeats, reiterates and realleges the responses previously interposed
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`to the allegations contained in paragraphs 1 through 184 as if fully set forth herein.
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`4.
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`Admit so much of Paragraph 40 that Howden was and is a duly organized foreign
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`corporation doing business in the State of New York and denies the rest and remainder of said
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`paragraph.
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`5.
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`Denies each and every other remaining allegation of the verified complaint not
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`hereinbefore specifically admitted or otherwise denied.
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`First Affirmative Defense
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`6.
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`This Court lacks personal jurisdiction over Howden for any acts complained of in
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`plaintiff’s verified complaint.
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`Second Affirmative Defense
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`7.
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`Plaintiff’s verified complaint fails to state a claim upon which relief may be
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`granted.
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`Third Affirmative Defense
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`8.
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`Plaintiff’s verified complaint fails to state a claim within the applicable statute of
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`limitations.
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`Fourth Affirmative Defense
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`9.
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`Plaintiff’s claims against Howden are pre-empted by the Workers’ Compensation
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`Law of the State of New York and should, therefore, be dismissed.
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`Fifth Affirmative Defense
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`10.
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`Plaintiff has failed to join a party pursuant to the applicable CPLR sections.
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`Sixth Affirmative Defense
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`11.
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`The injuries and damages alleged by plaintiff was caused by the acts or omissions
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`of persons or entities other than Howden.
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`Seventh Affirmative Defense
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`12.
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`The injuries and damages alleged by plaintiff was the result of an intervening and
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`superseding cause and are not the proximate result of the alleged acts of Howden.
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`Eighth Affirmative Defense
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`13.
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`Plaintiff’s claims are subject to apportionment of fault and Howden is not liable for
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`any fault apportionable or attributable to other persons or entities.
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`Ninth Affirmative Defense
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`14.
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`Plaintiff lacks the privity of contract necessary to sustain a cause of action for
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`breach of warranty.
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`Tenth Affirmative Defense
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`15.
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`Plaintiff has not been damaged by Howden.
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`Eleventh Affirmative Defense
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`16.
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`Plaintiff has failed to mitigate his damages, if any.
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`Twelfth Affirmative Defense
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`17.
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`Plaintiff is not entitled to any of the relief for which they pray.
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`Thirteenth Affirmative Defense
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`18.
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`The statute of repose relating to product liability cases has expired.
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`Fourteenth Affirmative Defense
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`19.
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`Plaintiff’s verified complaint fails to identify with sufficient specificity the products
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`allegedly exposed to, the dates of exposure, and the locations of exposure.
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`Fifteenth Affirmative Defense
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`20.
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`Plaintiff’s verified complaint fails to allege that any exposure is a substantial factor
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`in the proximate causation of plaintiff’s alleged injuries.
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`Sixteenth Affirmative Defense
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`21.
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`Any asbestos-containing component in any product manufactured by Howden did
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`not release fibers in excess of any established threshold limit or regulatory limit. Every product
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`manufactured by Howden was reasonably safe based upon the established state of medical
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`knowledge and engineering that existed at the time of sale.
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`Seventeenth Affirmative Defense
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`22.
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`Any product manufactured by Howden met all established and applicable Federal,
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`State, and Local safety guidelines and regulations and all industry standards.
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`Eighteenth Affirmative Defense
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`23.
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`No product manufactured by Howden was unreasonably dangerous or defective in
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`design, manufacture or information accompanying the product.
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`Nineteenth Affirmative Defense
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`24.
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`Howden is not responsible for any asbestos-related product or material that it did
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`not design, manufacture or sell, but that may have been specified and applied by others at, near,
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`on or within any property allegedly owned or maintained by Howden or on any product
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`manufactured by Howden.
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`Twentieth Affirmative Defense
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`25.
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`Howden denies that plaintiff sustained any injury as a result of contact or use of
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`any product present at any property allegedly owned or maintained by Howden and further states
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`that any contact or use of any such product would be so slight that it would not cause or contribute
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`to the cause of any injury of which plaintiff complains.
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`Twenty-First Affirmative Defense
`Howden denies that any product or products which it manufactured or sold caused
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`26.
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`any injury or illness, if any, to plaintiff, and further states that the physical conditions of which
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`plaintiff complains were in no way caused or brought about by any product present at any property
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`allegedly owned or maintained by Howden.
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`Twenty-Second Affirmative Defense
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`27.
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`If plaintiff sustained any injury, or sustained any occupational disease as a result of
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`exposure to any unreasonably dangerous product present at any property allegedly owned or
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`maintained by Howden, such being expressly denied, then plaintiff was guilty of comparative fault
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`by reason of his own voluntary acts and omissions, each and all of which amounted to assumption
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`of the risk which was a proximate cause of his injury, then his recovery must be reduced by his
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`percentage of fault.
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`Twenty-Third Affirmative Defense
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`28.
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`If plaintiff sustained any injury, or sustained any occupational disease as a result of
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`any negligent act or omission on the part of Howden in breach of any duty it owed to plaintiff,
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`such being expressly denied, the plaintiff was guilty of comparative negligence by reason of his
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`own negligent act or omission which proximately caused such injury or disease, than his recovery
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`must be reduced by his own comparative fault.
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`Twenty-Fourth Affirmative Defense
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`29.
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`Given the staggering proliferation of asbestos products liability suits, the expected
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`number of future suits, the increasing number of asbestos manufacturers who are filing for
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`bankruptcy and the effect of joint and several liability, Howden asserts that punitive damages are
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`not appropriate in this case under either New York law or federal common law, which Howden
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`asserts pre-empts state law and precludes recovery or punitive damages. Howden further asserts
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`that permitting the recovery of punitive damages in this case would amount to repeated and
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`excessive punitive damages awards for a single course of alleged tortuous conduct in violation of
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`the Fifth Amendment Double Jeopardy Clause. Howden would further show that the standard for
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`awarding punitive damages in this and most jurisdictions is so vague as to deny Howden’s rights
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`to due process in violation of the Fourteenth Amendment. Repetitive punitive damage awards for
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`a single course of conduct amounts to an unconstitutionally excessive fine in violation of the Eight
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`Amendment. In the alternative, an award of punitive damages is barred by Federal Common Law
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`and the Constitution and an award of punitive damages violates the Eight and Fourteenth
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`Amendment to the United States Constitution. An award of punitive damages is also barred in this
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`case because the award would be imposed under a standard of conduct that was newly formulated
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`by the courts and applied retroactively to conduct that occurred years before that standard of
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`conduct was announced.
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`Twenty-Fifth Affirmative Defense
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`30.
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`If plaintiff has settled any claims relating to any alleged injury to plaintiff’s lungs,
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`respiratory system or related cancer, whether asbestos-related or not, with any person or entity,
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`regardless of whether they may be a defendant herein, than Howden is entitled to a percentage or
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`pro-rata reduction of its liability to plaintiff or to a credit for the amount of the settlement paid by
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`the settling person.
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`Twenty-Sixth Affirmative Defense
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`31.
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`Howden states that its products were not defective or unreasonably dangerous
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`because the alleged risk to uses of asbestos-containing products of Howden, if any, was not known,
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`and thus was not reasonably foreseeable. As a matter of law, manufacturer or distributor of a
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`product is under no duty to warn of a prospective risk of harm in the absence of knowledge, actual
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`or constructive, of the risk.
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`Twenty-Seventh Affirmative Defense
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`32.
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`Any recovery by any plaintiff that has filed an action against their employer for
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`asbestos-related injuries (i.e. FELA or workers’ compensation claims) constitutes a violation of
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`“one satisfaction rule” and/or a double recovery due to the pendency of such cause of action.
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`Twenty-Eighth Affirmative Defense
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`33.
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`Howden denies it owed any legal duty to the plaintiff and, alternatively, if the Court
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`determines that Howden owed duty to the plaintiff, then Howden denies it breached any such duty.
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`Twenty-Ninth Affirmative Defense
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`34.
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`In the alternative, and by way of a separate or affirmative defense, Howden states
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`that the conditions about which plaintiff complains, if any, are shown to exist, are due to causes
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`other than exposure to products present on property allegedly owned or maintained by Howden.
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`Furthermore, no act or omission by Howden was a direct, producing or proximate cause of any of
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`plaintiff’s alleged injuries or damages.
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`Thirtieth Affirmative Defense
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`35.
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`Pleading strictly
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`in
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`the alternative, and without waiving
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`its claim of
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`unconstitutionality of punitive damages, Howden would show that, unless liability for punitive
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`damages and the appropriate amount of punitive damages are required to be established by clear
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`and convincing evidence, any award of such damages would violate Howden’s due process rights
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`guaranteed by the Fourteenth Amendment to the United States Constitution.
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`Thirty-First Affirmative Defense
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`36.
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`In the alternative, and by way of separate or affirmative defense, Howden would
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`show that plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
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`damages by a jury that: (1) is not provided any standard of sufficient clarity for determining the
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`appropriateness or the appropriate size of any punitive damages award; (2) is not instructed on the
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`limits on punitive damages imposed by the applicable principles of deterrence; (3) is not expressly
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`prohibited from awarding punitive damages or determining the amount of an award of punitive
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`damages, in whole or in part, on the basis of insidiously discriminatory characteristics; (4) is
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`permitted to award punitive damages for vague and arbitrary reasons without sufficient definition
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`and clarity regarding the conduct or mental state that makes punitive damages permissible; and (5)
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`is not subject to the judicial review on the basis of objective standards, would violate Howden’s
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`due process rights guaranteed by the Fourteenth Amendment to the United States Constitution as
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`well as the constitution or laws of any other state deemed to apply to this case.
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`Thirty-Second Affirmative Defense
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`37.
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`In the alternative, and by ways of separate or affirmative defense, Howden would
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`show that plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
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`damages for the purposes of compensating plaintiff for elements of damages not otherwise
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`recognized by the laws of New York would violate Howden’s due process rights guaranteed by
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`the Fourteenth Amendment to the United States Constitution as well as the constitution of the State
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`of New York as set forth herein.
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`Thirty-Third Affirmative Defense
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`38.
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`In the alternative, and by way of separate or affirmative defense, Howden would
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`show that it is entitled to raise the Doctrine of Learned Intermediary and would further show that
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`plaintiff’s employers were Learned Intermediaries as that term is known in law.
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`Thirty-Fourth Affirmative Defense
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`39.
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`Howden would further plead, in the alternative, that it did not have control of the
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`means of methods of plaintiff’s employment. Thus, Howden is not responsible for providing, or
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`failing to provide, safety equipment, safety training, proper supervision and a safe work
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`environment, and lack of the above was the sole cause for any of plaintiff’s alleged injuries.
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`Thirty-Fifth Affirmative Defense
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`40.
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`Howden further pleads that, during the period of time that plaintiff is asserting a
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`claim for injury, there was an applicable workers’ compensation law which provides that the
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`disease complained of by plaintiff is an occupational disease for which a person engaged in the
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`occupation can claim workers’ compensation disability benefits against his employer at the time
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`the disease is discovered. Further, plaintiff’s claims are barred under the applicable workers’
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`compensation laws because these laws provide the exclusive remedy for the disability of an
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`employee if such resulted from an injury or occupational disease incurred or sustained in the course
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`of his employment.
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`Thirty-Sixth Affirmative Defense
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`41.
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`Pleading further, Howden would show that it had no notice or reason to believe that
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`any products on any property allegedly owned or maintained by it might be potentially hazardous,
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`and that Howden could not have reasonably foreseen any danger associated with its premises, and
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`cannot be charged with notice that any property allegedly owned or maintained by it posed a
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`hazard.
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`Thirty-Seventh Affirmative Defense
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`42.
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`In further verified answer, Howden would show that the aggregation or
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`consolidation of these claims against numerous defendants, involving plaintiffs with different
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`alleged injuries, different work sites and different occupations would severely prejudice this
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`defendant. The prejudice to Howden substantially outweighs any basis for consolidating the
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`actions, and amounts to a denial of Howden’s right to a fair trial. Thus, the plaintiff’s claims
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`should remain separated or severed from that of any other plaintiff's trials; otherwise, any recovery
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`by Answer must be barred.
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`Thirty-Eighth Affirmative Defense
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`43.
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`Pleading further, and in the alternative, Howden would show that plaintiff’s claims
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`based upon negligence and the negligent failure to warn are barred because Howden must be
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`proved to have known or that it should have known that products present at property allegedly
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`owned or maintained by Howden were dangerous when used in their customary manner, and
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`Howden did not have this knowledge, nor could it have had this knowledge, at the time of the
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`alleged exposure about which plaintiff complains.
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`Thirty-Ninth Affirmative Defense
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`44.
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`At all relevant times during plaintiff’s work history there were in effect Federal
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`statutes, laws, and regulations governing the permissible levels of exposure to asbestos fibers and
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`if plaintiff was exposed to asbestos fibers in excess of the applicable regulatory limit, such
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`exposure was caused by plaintiff’s employer, which conduct was an unforeseeable intervening act
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`breaking the chain of causation between the latent condition of any asbestos-containing product
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`and the active disturbance of fibers.
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`Fortieth Affirmative Defense
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`45.
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`At all relevant times during plaintiff’s work history, there were in effect Federal
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`statutes, laws, and regulations governing the permissible levels of exposure to asbestos fibers
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`which preempt all of plaintiff’s claims against Howden.
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`Forty-First Affirmative Defense
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`46.
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`If plaintiff alleges that there was exposure to asbestos from a product or equipment
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`associated with this answering defendant, then such asbestos was manufactured and supplied by
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`others and this defendant has no duty to warn for such asbestos and has no liability for injuries or
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`damages caused by such asbestos.
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`Forty-Second Affirmative Defense
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`47.
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`At all relevant times during plaintiff’s work history there were in effect Federal
`
`statutes, laws, and regulations governing the permissible levels of exposure to asbestos fibers, and
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`in the event plaintiff proves exposure to asbestos fibers at levels greater than those set by such
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`Federal statutes, laws and regulations, plaintiff will have established that they and/or their
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`employer, in allowing such exposure, violated said statutes, laws, and regulations which violations
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`are criminal.
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`Forty-Third Affirmative Defense
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`48.
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`In accordance with CPLR Article 16, Howden’s liability for non-economic loss is
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`limited to its equitable share of the total liability for non-economic loss.
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`Forty-Fourth Affirmative Defense
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`49.
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`In accordance with CPLR Article 16, Howden is entitled to a set-off for any past
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`due or future costs or expenses incurred or to be incurred by plaintiff’s medical care, custodial care
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`of rehabilitation service, loss or warnings or other economic loss, which has been or will with
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`reasonable certainty be replaced or indemnified in whole or in part from a collateral source.
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`Forty-Fifth Affirmative Defense
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`50.
`
`To the extent that plaintiff’s alleged exposure to Howden products occurred outside
`
`of the State of New York and insofar as Howden is neither incorporated, nor maintains its principal
`
`place of business in New York, Howden is not subject to the jurisdiction of New York State Courts.
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`Forty-Sixth Affirmative Defense
`
`51.
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`That in the event there has been a settlement between plaintiff and any joint or co-
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`tortfeasor, or person, company or entity liable or claimed to be liable, including bankrupt persons,
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`companies and entities, then defendant, Howden, hereby pleads and seeks the full benefit of §15-
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`108 of the General Obligations Law that plaintiff’s claim against defendant, Howden, be reduced
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`to the fullest extent permitted by §15-108 of the General Obligations Law.
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`Forty-Seventh Affirmative Defense
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`52.
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`At all times material hereto, the state of the medical and industrial art was such that
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`there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently
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`dangerous or hazardous character or nature of products containing asbestos when used in the
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`manner and purpose described by plaintiff, therefore, there was no duty for Howden to know of
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`such character or nature or to warn plaintiff or others similarly situated.
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`Forty-Eighth Affirmative Defense
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`53.
`
`The answering defendant denies that plaintiff had any exposure to any asbestos
`
`product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged,
`
`distributed, delivered, sold and/or otherwise placed in the stream of commerce by the answering
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`defendant, and more particularly denies upon information and belief that this answering defendant
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`mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed,
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`delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the
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`times and upon the dates alleged in the plaintiff’s verified complaint herein.
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`Forty-Ninth Affirmative Defense
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`54.
`
`Any recovery by the plaintiff herein must be reduced by collateral source payments
`
`pursuant to CPLR §4545.
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`CROSS-CLAIM FOR CONTRIBUTION AND INDEMNIFICATION
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`55.
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`In the event that Howden is found liable to plaintiff, Howden alleges that any such
`
`liability was caused in whole or in part, or contributed to, by the culpable conduct and/or
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`negligence of the co-defendants to this action, and, therefore, Howden will be entitled to
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`indemnification or contribution and judgment over as against said co-defendants for the full
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`amount of said liability or such proportionate share as represents the amount, degree and kind of
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`culpable conduct attributable to them.
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`WHEREFORE, Howden demands as follows:
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`A.
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`that plaintiffs’ verified complaint and each and every allegation contained therein
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`be dismissed with prejudice as to Howden;
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`that judgment be awarded in favor of Howden;
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`that Howden be granted its costs and expenses incurred in this action, including
`
`B.
`
`C.
`
`reasonable attorney’s fees; and
`
`D.
`
`that Howden be granted all further relief to which it may appear entitled.
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`HOWDEN NORTH AMERICA INC.,
`Defendant
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`
`
`By
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`
`
`DATED:
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`Buffalo, New York
`February 13, 2024
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`
`
`TO:
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`
`
`
`
`
`Joseph W. Belluck, Esq.
`BELLUCK & FOX, LLP
`546 Fifth Avenue, 5th Floor
`New York, New York 10036
`(212) 681-1575
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`
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`Carol G. Snider, Esq.
`BARCLAY DAMON LLP
`The Avant Building, Suite 1200
`200 Delaware Avenue
`Buffalo, New York 14202-2150
`Telephone: (716) 856-5500
`
`
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`27646996.1
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`FILED: ERIE COUNTY CLERK 02/13/2024 10:41 AM
`NYSCEF DOC. NO. 64
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`INDEX NO. 814633/2023
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`I
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`RECEIVED NYSCEF: 02/13/2024
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`VERIFICATION
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`STATE OF NEW YORK
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`COIINTY OF E,RIE,
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`)I
`it
`it
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`SS.
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`CAROL G. SNIDER, ESQ., being duly sworn herein says:
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`1.
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`That she is one of the attomeys fbr the defendant, Howden Nofih America Inc., in
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`this action; that she has read the verified answer to the verified complaint and knows the contents
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`thereof; that the same is true to her own knowledge except as to the matters therein stated to be
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`alleged upon information and belief and as to those matters, she believes them to be true.
`2.
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`That the reason this verification is made by the deponent and not by defendant,
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`Howden Nofih America Inc., is that the answering def-endant is outside the County of Erie where
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`the deponent maintains her ot1lce.
`3.
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`That the sources of deponent's knowledge and the grounds for her belief are liom
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`the correspondence with said defendant, Howden North America Inc., and corespondence and
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`conversations with the representatives of said defendant, and from reports of investigation of the
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`said defendant's representatives, certain of which the cor:respondence and reports are now in
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`deponent' s possession.
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`,rffi-_
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`, Esq
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`Carol G
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`Subscribed and swom to before me
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`this 13ft day of February,2024
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`Notary Public
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`27646996.1
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`PATRICIA DEEB
`Notarv Public, State of New York
`Qual. in Erie Co., No. 01DE4838958 . 7
`My Commission Expires Aug. 31, 209(\)
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