FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`
`
`
`
`- against -
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
`
`
`:
`DENNIS KILKENNY and PATRICIA KILKENNY,
`
`: Index No. 190011/2024
`
`:
`
`
`:
`
`
`: HEXION INC.’S VERIFIED
`
`
`: ANSWER TO PLAINTIFFS’
`
`
`: VERIFIED COMPLAINT WITH
`
`
`: AFFIRMATIVE DEFENSES AND
`AII ACQUISITION, LLC, et al.,
`
`: CROSS CLAIMS
`
`
`:
`:
`-- ------------------------------------------------------------------- X
`
`
`Defendant Hexion Inc., f/k/a Momentive Specialty Chemicals Inc. and as a successor-in-
`
`interest to Borden Chemical Inc., (hereinafter “Hexion”), by its attorneys, Harris Beach PLLC, for
`
`its answer to Plaintiffs’ Verified Complaint (“Verified Complaint”) states as follows:
`
`1.
`
`Paragraph “1” of the Verified Complaint does not contain an allegation that requires
`
`a response.
`
`2.
`
`To the extent the allegations contained in paragraph “2” of the Verified Complaint
`
`are directed towards Hexion, Hexion admits that, at times, it “conducted business in” the State of
`
`New York, and refers all questions of law to this honorable Court.
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`3.
`
`To the extent the allegations contained in paragraph “3” of the Verified Complaint
`
`are directed towards Hexion, Hexion denies the allegations contained in paragraph “3” of the
`
`Verified Complaint.
`
`4.
`
`Hexion denies the allegations contained in paragraph “4” of the Verified
`
`Complaint, and refers all questions of law to this honorable Court.
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`5.
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`Hexion denies knowledge or information sufficient to form a belief as to the truth
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`of each and every allegation contained in paragraph “5” of the Verified Complaint, and therefore
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`denies the same.
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`1 of 23
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`NYSCEF DOC. NO. 33
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`
`
`
`
`- against -
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
`
`
`:
`DENNIS KILKENNY and PATRICIA KILKENNY,
`
`: Index No. 190011/2024
`
`:
`
`
`:
`
`
`: HEXION INC.’S VERIFIED
`
`
`: ANSWER TO PLAINTIFFS’
`
`
`: VERIFIED COMPLAINT WITH
`
`
`: AFFIRMATIVE DEFENSES AND
`AII ACQUISITION, LLC, et al.,
`
`: CROSS CLAIMS
`
`
`:
`:
`-- ------------------------------------------------------------------- X
`
`
`Defendant Hexion Inc., f/k/a Momentive Specialty Chemicals Inc. and as a successor-in-
`
`interest to Borden Chemical Inc., (hereinafter “Hexion”), by its attorneys, Harris Beach PLLC, for
`
`its answer to Plaintiffs’ Verified Complaint (“Verified Complaint”) states as follows:
`
`1.
`
`Paragraph “1” of the Verified Complaint does not contain an allegation that requires
`
`a response.
`
`2.
`
`To the extent the allegations contained in paragraph “2” of the Verified Complaint
`
`are directed towards Hexion, Hexion admits that, at times, it “conducted business in” the State of
`
`New York, and refers all questions of law to this honorable Court.
`
`3.
`
`To the extent the allegations contained in paragraph “3” of the Verified Complaint
`
`are directed towards Hexion, Hexion denies the allegations contained in paragraph “3” of the
`
`Verified Complaint.
`
`4.
`
`Hexion denies the allegations contained in paragraph “4” of the Verified
`
`Complaint, and refers all questions of law to this honorable Court.
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`5.
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`Hexion denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained in paragraph “5” of the Verified Complaint, and therefore
`
`denies the same.
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`6.
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`To the extent the allegations contained in paragraph “6” of the Verified Complaint
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`are directed to Hexion, Hexion denies each and every allegation contained in paragraph “6” of the
`
`Verified Complaint.
`
`7.
`
` To the extent the allegations contained in paragraph “7” of the Verified Complaint
`
`are directed to Hexion, Hexion denies each and every allegation contained in paragraph “7” of the
`
`Verified Complaint, and refers all questions of law to this honorable Court.
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`8.
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` Hexion denies the allegations contained in paragraph “8” of the Verified
`
`Complaint and refers all questions of law to this honorable Court.
`
`9.
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`Hexion denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained in paragraph “9” of the Verified Complaint, and therefore
`
`denies the same.
`
`AS AND FOR A FIRST CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`10.
`
`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “10” of the Verified Complaint.
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`11.
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`Hexion denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained in paragraphs “10” and “11” of the Verified Complaint,
`
`and therefore denies the same.
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`12.
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`To the extent the allegations contained in paragraphs “12” and “13” of the Verified
`
`Complaint are directed to Hexion, Hexion denies each and every allegation contained in
`
`paragraphs “12” and “13” of the Verified Complaint.
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`INDEX NO. 190011/2024
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`13.
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`Hexion denies knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained in paragraph “14” of the Verified Complaint, and therefore
`
`denies the same.
`
`14.
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`To the extent the allegations contained in paragraphs “15” and “16” of the Verified
`
`Complaint are directed to Hexion, Hexion denies each and every allegation contained in
`
`paragraphs “15” and “16” of the Verified Complaint.
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`15.
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`Hexion denies each and every allegation contained in paragraphs “17” (including
`
`all sub-paragraphs thereof) and “18” of the Verified Complaint, and refers all questions of law to
`
`this honorable Court.
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`16.
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`To the extent the allegations contained in paragraph “19” of the Verified Complaint
`
`are directed to Hexion, Hexion denies each and every allegation contained in paragraph “19” of
`
`the Verified Complaint.
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`17.
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`Hexion denies each and every allegation contained in paragraphs “20”, “21”, and
`
`“22” of the Verified Complaint.
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`18.
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`To the extent the allegations contained in paragraphs “23”, “24”, “25”, and “26” of
`
`the Verified Complaint are directed to Hexion, Hexion denies each and every allegation contained
`
`in paragraphs “23”, “24”, “25”, and “26” of the Verified Complaint, and refers all questions of law
`
`to this honorable Court.
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`19.
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`To the extent the allegations contained in paragraphs “27”, “28”, “29”, and “30” of
`
`the Verified Complaint are directed to Hexion, Hexion denies each and every allegation contained
`
`in paragraphs “27”, “28”, “29”, and “30” of the Verified Complaint.
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`20.
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`To the extent the allegations contained in paragraphs “31”, “32”, “33” (including
`
`all sub-paragraphs thereof), “34”, and “35” of the Verified Complaint are directed to Hexion,
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`Hexion denies each and every allegation contained in paragraphs “31”, “32”, “33” (including all
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`sub-paragraphs thereof), “34”, and “35” of the Verified Complaint, and refers all questions of law
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`to this honorable Court.
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`21.
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`Hexion denies each and every allegation contained in the unnumbered paragraph
`
`following paragraph “35” of the Verified Complaint.
`
`AS AND FOR A SECOND CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`22.
`
`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “36” of the Verified Complaint.
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`23.
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`To the extent the allegations contained in paragraphs “36”, “37”, “38”, and “39” of
`
`the Verified Complaint are directed to Hexion, Hexion denies each and every allegation contained
`
`in paragraphs “36”, “37”, “38”, and “39” of the Verified Complaint, and refers all questions of law
`
`to this honorable Court.
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`24.
`
`Hexion denies each and every allegation contained in the unnumbered paragraph
`
`following paragraph “39” of the Verified Complaint.
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`AS AND FOR A THIRD CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`25.
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`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “40” of the Verified Complaint.
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`26.
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`To the extent the allegations contained in paragraphs “40” and “41” of the Verified
`
`Complaint are directed to Hexion, Hexion denies each and every allegation contained in
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`paragraphs “40” and “41” of the Verified Complaint, and refers all questions of law to this
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`honorable Court.
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`27.
`
`Hexion denies each and every allegation contained in the unnumbered paragraph
`
`following paragraph “41” of the Verified Complaint.
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`AS AND FOR A FOURTH CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`28.
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`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “42” and to paragraph “42” of the Verified
`
`Complaint.
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`29.
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`To the extent the allegations contained in paragraphs “43” and “44” of the Verified
`
`Complaint are directed to Hexion, Hexion denies each and every allegation contained in
`
`paragraphs “43” and “44” of the Verified Complaint, and refers all questions of law to this
`
`honorable Court.
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`30.
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`Hexion denies each and every allegation contained in paragraph “45” of the
`
`Verified Complaint.
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`31.
`
`To the extent the allegations contained in paragraphs “46”, “47”, “48”, “49”, “50”,
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`“51”, and “52” (including all sub-paragraphs thereof) of the Verified Complaint are directed to
`
`Hexion, Hexion denies each and every allegation contained in paragraphs “46”, “47”, “48”, “49”,
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`“50”, “51”, and “52” (including all sub-paragraphs thereof) of the Verified Complaint, and refers
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`all questions of law to this honorable Court.
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`32.
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`Hexion denies each and every allegation contained in paragraph “53” of the
`
`Verified Complaint.
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`RECEIVED NYSCEF: 02/21/2024
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`33.
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`To the extent the allegations contained in paragraph “54” of the Verified Complaint
`
`are directed to Hexion, Hexion denies each and every allegation contained in paragraph “54” of
`
`the Verified Complaint, and refers all questions of law to this honorable Court.
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`34.
`
`Hexion denies each and every allegation contained in paragraph “55” of the
`
`Verified Complaint, and refers all questions of law to this honorable Court.
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`35.
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`To the extent the allegations contained in paragraphs “56”, “57”, “58”, “59”, “60”,
`
`“61”, “62”, “63”, “64”, “65”, and “66” of the Verified Complaint are directed to Hexion, Hexion
`
`denies each and every allegation contained in paragraphs “56”, “57”, “58”, “59”, “60”, “61”, “62”,
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`“63”, “64”, “65”, and “66” of the Verified Complaint, and refers all questions of law to this
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`honorable Court.
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`36.
`
`Hexion denies each and every allegation contained in paragraph “67” of the
`
`Verified Complaint, and refers all questions of law to this honorable Court.
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`37.
`
`To the extent the allegations contained in paragraph “68” of the Verified Complaint
`
`are directed to Hexion, Hexion denies each and every allegation contained in paragraph “68” of
`
`the Verified Complaint, and refers all questions of law to this honorable Court.
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`38.
`
`Hexion denies each and every allegation contained in the unnumbered paragraph
`
`following paragraph “68” of the Verified Complaint.
`
`AS AND FOR A FIFTH CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`39.
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`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “69” and to paragraph “69” of the Verified
`
`Complaint.
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`40.
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`Hexion denies that the term “contractor” as defined in paragraph “70” of the
`
`Verified Complaint applies to Hexion in this action.
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`41.
`
`To the extent the allegations contained in paragraphs “71”, “72”, “73”, “74”, “75”,
`
`“76”, “77”, “78”, “79”, “80”, “81”, and “82” of the Verified Complaint are directed to Hexion,
`
`Hexion denies each and every allegation contained in paragraphs “71”, “70”, “71”, “72”, “73”,
`
`“74”, “75”, “76”, “77”, “78”, “79”, “80”, “81”, and “82” of the Verified Complaint, and refers all
`
`questions of law to this honorable Court.
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`42.
`
`Hexion denies each and every allegation contained in the unnumbered paragraph
`
`following paragraph “82” of the Verified Complaint.
`
`AS AND FOR A SIXTH CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`43.
`
`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “83” and to paragraph “83” of the Verified
`
`Complaint.
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`44.
`
`To the extent the allegations contained in paragraphs “84”, “85”, “86”, “87”, “88”,
`
`“89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, and “97” of the Verified Complaint are directed to
`
`Hexion, Hexion denies each and every allegation contained in paragraphs “84”, “85”, “86”, “87”,
`
`“88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, and “97” of the Verified Complaint, and
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`refers all questions of law to this honorable Court.
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`45.
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`Hexion denies each and every allegation contained in paragraph “98” of the
`
`Verified Complaint, and refers all questions of law to this honorable Court.
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`46.
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`Hexion denies each and every allegation contained the unnumbered paragraphs
`
`following paragraph “98” of the Verified Complaint.
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`AS AND FOR A SEVENTH CAUSE OF ACTION,
`HEXION ANSWERS AS FOLLOWS:
`
`Hexion repeats and reiterates each and every response hereinbefore made with the
`
`47.
`
`same force and effect as though the same were set forth at length herein in response to the
`
`unnumbered paragraph preceding paragraph “99” of the Verified Complaint.
`
`48.
`
`Hexion denies each and every allegation contained in paragraph “99” of the
`
`Verified Complaint, and refers all questions of law to this honorable Court.
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`49.
`
`Hexion denies each and every allegation contained the unnumbered paragraphs
`
`following paragraph “99” of the Verified Complaint.
`
`1.
`
`2.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`The Verified Complaint fails to state a cause of action against Hexion.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`46.
`
`This Court lacks both specific and/or general personal jurisdiction over Hexion.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`47.
`
`The damages allegedly sustained by Plaintiffs were caused, in whole or in part, by the
`
`
`
`
`
`
`
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`negligence or other culpable conduct of Plaintiff Daniel Kilkenny (“Plaintiff”) and/or defendants
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`other than Hexion, which conduct constituted a supervening cause of Plaintiff’s alleged injuries.
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`8
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`48.
`
`To the extent that the Verified Complaint and each cause of action considered
`
`
`
`separately may allege a cause of action occurring before September 1, 1975, each such cause of action
`
`is barred by reason of the culpable conduct attributable to Plaintiff, including contributory negligence
`
`and assumption of the risk.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`49.
`
`Any damages allegedly sustained by Plaintiff were the proximate result of the
`
`
`
`unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or conduct
`
`of intervening third parties or superseding parties.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`50.
`
`The damages allegedly sustained by Plaintiff were caused, in whole or in part, by the
`
`
`
`negligence or other culpable conduct of one or more persons or instrumentalities over which Hexion
`
`had no control and with whom it had no legal relationship.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`51.
`
`The damages allegedly sustained by Plaintiff were caused, in whole or in part, through
`
`
`
`the operation of nature.
`
`
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`9
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`52.
`
`If Plaintiff sustained damages as alleged, such damages occurred while he engaged in
`
`
`
`activities into which he entered knowing the hazard, risk and danger of the activities and he assumed
`
`the risks incidental to and attendant to the activities.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`53.
`
`The lawsuit was not commenced by Plaintiffs within the time prescribed by law and
`
`
`
`Plaintiffs, therefore, are barred from recovery pursuant to applicable statutes of limitations.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`54.
`
`All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July 31,
`
`
`
`1986) are time-barred in that said statute is in violation of the Constitution of the United States and
`
`the Constitution of the State of New York.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`55.
`
`To the extent applicable to Plaintiffs, this action cannot be maintained, as there is
`
`
`
`another action pending for the same relief.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`56.
`
`To the extent that any injury relating to Plaintiff occurred in the context of an
`
`
`
`employer-employee relationship, claims for said injuries are barred by the Workers’ Compensation
`
`Act.
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`
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`10
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`57.
`
`No acts or omissions of Hexion proximately caused any damages.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`58.
`
`Any product of Hexion that may have been present at Plaintiff’s job locations was
`
`
`
`
`
`placed in any such buildings upon specification, approval or at the instruction of governmental or
`
`legislative agencies or bodies.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`59.
`
`The damages allegedly sustained by Plaintiff, which allegedly arose from his work
`
`
`
`with or around allegedly asbestos containing products manufactured by Hexion (the “Products”) were
`
`caused, in whole or in part, by the improper use of the Products, rather than any defect in the design,
`
`manufacture, production, assemblage, installation, testing, labeling, marketing, distribution, sale or
`
`inspection of the Products by Hexion.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`60.
`
`The damages allegedly sustained by Plaintiff which allegedly arose from the Products
`
`
`
`were caused by the alteration, misuse and/or improper maintenance of the Products by one or more
`
`persons or instrumentalities other than Hexion, rather than any defect in the design, manufacture,
`
`production, assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of
`
`the Products by Hexion.
`
`
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`11
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`61.
`
`Hexion is not liable for the damages allegedly sustained by Plaintiff because
`
`
`
`Plaintiff was not in privity of contract with Hexion at any time and the Products were not inherently
`
`dangerous.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`62.
`
`The Products were not defective or dangerous at any time when Hexion had
`
`
`
`possession or control of them.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`63.
`
`All implied warranties, including the warranties of merchantability and fitness for a
`
`
`
`particular purpose, were excluded at the time of the sale of the Products.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`64.
`
`No implied warranties, including the warranties of merchantability and fitness for a
`
`
`
`particular purpose, became a part of the basis of the bargain in the sale of the Products.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`65.
`
`Hexion is not liable to Plaintiff for the damages alleged in the Verified Complaint
`
`
`
`because such damages are excluded and not recoverable under express warranty.
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`12
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`12 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
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`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`66.
`
`The purchaser of the Products and all beneficiaries of any warranties, express or
`
`
`
`implied, relating to the Products failed to provide notice of the alleged breaches of warranty to Hexion
`
`pursuant to the applicable provision(s) of the Uniform Commercial Code.
`
`
`
`
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`67.
`
`Oral warranties upon which Plaintiff allegedly relied are unavailable as violative of
`
`the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`68.
`
`To the extent Plaintiff sustained injuries from the use of a product alleged to contain
`
`
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`asbestos, which is denied, Plaintiffs, Plaintiff’s decedents, other defendants or other parties not under
`
`the control of Hexion misused, abused, misapplied and otherwise mishandled the product alleged to
`
`be asbestos material. Therefore, the amount of damages which may be recoverable must be
`
`diminished by the proportion which said misuse, abuse, misapplication and mishandling bears to the
`
`conduct which caused the alleged damage or injury.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`69.
`
`In the event it should be proven at the time of trial that all the defendants to this action
`
`
`
`are subject to market share liability, which Hexion denies is available in this case, then Hexion’s share
`
`of such liability would be of such a de minimis amount as to make its contribution for damages
`
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`13
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`13 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
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`negligible and Hexion would be entitled to contribution, either in whole or in part, from co-
`
`defendants.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`70.
`
`The asbestos products alleged in Plaintiffs’ Verified Complaint are not products
`
`within the meaning and scope of the Restatement of Torts Section 402A and, as such, the Verified
`
`Complaint fails to state a cause of action in strict liability.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`71.
`
`Hexion had no knowledge or reason to know of any alleged risks associated with
`
`
`
`asbestos and/or asbestos-containing products at any time during the periods complained of.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`72.
`
`Plaintiff did not directly or indirectly purchase any asbestos-containing products or
`
`
`
`materials from Hexion and Plaintiff did not either receive or rely upon any representation or warranty
`
`allegedly made by Hexion.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`73.
`
`To the extent that Plaintiff was exposed to any product containing asbestos as a result
`
`
`
`of conduct by Hexion, which is denied, said exposure was de minimis and not a substantial
`
`contributing factor to any asbestos-related disease which Plaintiff may have developed, and not
`
`actionable at law or equity.
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`14
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`14 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`74.
`
`Exposure to asbestos fibers attributable to the Products, which is denied, is so minimal
`
`
`
`as to be insufficient to establish to a reasonable degree of probability that the Products are capable of
`
`causing injury or damages and must be considered speculative as a matter of law.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`75.
`
`Finished asbestos-containing products are not unreasonably dangerous as a matter of
`
`law.
`
`
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`76.
`
`If Hexion was on notice of any hazard or defect for which Plaintiff seeks relief, which
`
`Hexion denies, Plaintiff also had such notice and is thereby barred from recovery.
`
`
`
`
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`77.
`
`Any damages must be reduced by the value of the benefit received by Plaintiff from
`
`the use of Hexion’s products.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`78.
`
`There is no justiciable issue or controversy.
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`79.
`
`The claims for damages have not accrued and are purely speculative, uncertain and
`
`
`
`
`
`contingent.
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`15
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`15 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`80.
`
`Plaintiff acted voluntarily, unnecessarily, prematurely, with no evidence of injury to
`
`
`
`anyone at any job locations.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`81.
`
`None of the alleged injuries or damages was foreseeable at the time of the Verified
`
`Complaint or at the time of the alleged acts or omissions in Plaintiffs’ Verified Complaint.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`82.
`
`Hexion was under no duty to warn purchasers, those who performed work, or those
`
`
`
`under such purchasers’ control who were in a better position to warn; if warning was required,
`
`Hexion’s failure to do so was not a superseding proximate cause of injury.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`83.
`
`Plaintiff was warned of the risks of exposure to and use of asbestos-containing
`
`
`
`materials.
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`84.
`
`Plaintiffs’ claims are barred as a matter of public policy, since social utility and benefit
`
`
`
`of asbestos-containing products outweighed the risk.
`
`
`
`16
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`16 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`85.
`
`To the extent Plaintiffs seek to maintain a claim for relief on behalf of any decedent,
`
`
`
`Plaintiffs lack capacity and/or standing to maintain such claim for relief against Hexion.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`86.
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`
`
`indispensable parties.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`87.
`
`Plaintiffs may not bring this action as he has failed to exhaust all of their administrative
`
`
`
`remedies.
`
`
`
`
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`88.
`
`Plaintiffs and/or Plaintiffs’ decedents failed to mitigate or otherwise act to lessen or
`
`reduce the injuries alleged in the Verified Complaint.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`89.
`
`Plaintiffs’ demands for exemplary or punitive damages are barred because such
`
`
`
`damages are not recoverable or warranted in this action.
`
`
`
`17
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`17 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`90.
`
`Plaintiffs’ demands for punitive damages are barred by the due process clauses of the
`
`
`
`Fourteenth Amendment to the United States Constitution and the New York State Constitution.
`
`
`
`
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`91.
`
`Plaintiffs’ demands for punitive damages are barred by the proscription of the Eighth
`
`Amendment to the United States Constitution, as applied to the states through the Fourteenth
`
`Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition
`
`of excessive fines.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`92.
`
`Plaintiffs’ demands for punitive damages are barred by the “double jeopardy” clause
`
`
`
`of the Fifth Amendment to the United States Constitution, as applied to the states through the
`
`Fourteenth Amendment, and Article I, Section 6 of the New York State Constitution.
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`93.
`
`If Plaintiff sustained injuries in the manner alleged, all of which has been denied by
`
`
`
`Hexion, the liability of Hexion, if any, shall be limited in accordance with Article 16 of the Civil
`
`Practice Law and Rules.
`
`
`
`18
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`18 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`94.
`
`At all times relevant to this litigation, Hexion complied with all applicable laws,
`
`
`
`regulations and standards.
`
`
`
`
`
`
`
`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`95.
`
`Relief is barred by virtue of the doctrines of estoppel and waiver.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`96.
`
`At all times relevant to this litigation, the agents, servants and/or employees of Hexion
`
`utilized proper methods in the conduct of their operations, in conformity with the available knowledge
`
`and research of the scientific and industrial communities.
`
`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`97.
`
`Plaintiff contributed to his injuries, either in whole or in part, by exposure to or the
`
`
`
`use of tobacco products and/or other substances, products, medications or drugs.
`
`AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`98.
`
`Some or all of the causes of action may not be maintained because of arbitration
`
`
`
`and award.
`
`
`
`19
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`19 of 23
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`FILED: NEW YORK COUNTY CLERK 02/21/2024 12:01 PM
`NYSCEF DOC. NO. 33
`
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 02/21/2024
`
`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`99.
`
`Some or all of the causes of action may not be maintained because of collateral
`
`
`
`estoppel.
`
`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`100. Some or all of the causes of action may not be maintained because of discharge in
`
`
`
`bankruptcy.
`
`AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`101. Some or all of the causes of action may not be maintained because of payment.
`
`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`102. Some or all of the causes of action may not be maintained because of release.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`HEXION ALLEGES
`UPON INFORMATION AND BELIEF
`
`103. Some or all of the causes of action may not be maintained because of res judicata.
`
`AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`
`HEXION ALLEGES
`
`UPON INFORMATION AND BELIEF
`
`104. Plaintiffs’ claims are barred by the doctrine of laches.
`
`20
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`20 of 23
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`FILED: NEW YORK COUNT
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