FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
`
`DENNIS KILKENNY AND PATRICIA KILKENNY,
`
` Plaintiffs,
`
` - against -
`
`AII ACQUISITION, LLC, et al.,
`
` Defendants.
`-- ------------------------------------------------------------------- X
`
`Index No. 190011/2024
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`DEFENDANT PANASONIC OF
`NORTH AMERICA’S VERIFIED
`ANSWER TO PLAINTIFFS’
`VERIFIED COMPLAINT WITH
`AFFIRMATIVE DEFENSES AND
`CROSS-CLAIMS
`
`:::::::::::
`
`Defendant Panasonic of North America (hereinafter “Panasonic”), by its attorneys,
`
`Manning Gross + Massenburg LLP by way of a Verified Answer to Plaintiffs’ Verified
`
`Complaint (hereinafter “Complaint”), states as follows:
`
`COMPLAINT
`
`1.
`
`PANASONIC denies any knowledge or information sufficient to form a
`
`belief as to the allegations contained in paragraph of the Complaint numbered “1”.
`
`2.
`
` As “Defendants” refers to PANASONIC, PANASONIC denies the
`
`allegations contained in paragraph of the Complaint numbered “2” except to admit that
`
`PANASONIC has “conducted business in” the State of New York, and begs leave to refer
`
`all questions of law to this honorable Court.
`
`3.
`
`As “Defendants” refers to parties other than PANASONIC, PANASONIC
`
`denies any knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph of the Complaint numbered “2”.
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`1 of 26
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`- -------------------------------------------------------------------- X
`
`DENNIS KILKENNY AND PATRICIA KILKENNY,
`
` Plaintiffs,
`
` - against -
`
`AII ACQUISITION, LLC, et al.,
`
` Defendants.
`-- ------------------------------------------------------------------- X
`
`Index No. 190011/2024
`
`DEFENDANT PANASONIC OF
`NORTH AMERICA’S VERIFIED
`ANSWER TO PLAINTIFFS’
`VERIFIED COMPLAINT WITH
`AFFIRMATIVE DEFENSES AND
`CROSS-CLAIMS
`
`:::::::::::
`
`Defendant Panasonic of North America (hereinafter “Panasonic”), by its attorneys,
`
`Manning Gross + Massenburg LLP by way of a Verified Answer to Plaintiffs’ Verified
`
`Complaint (hereinafter “Complaint”), states as follows:
`
`COMPLAINT
`
`1.
`
`PANASONIC denies any knowledge or information sufficient to form a
`
`belief as to the allegations contained in paragraph of the Complaint numbered “1”.
`
`2.
`
` As “Defendants” refers to PANASONIC, PANASONIC denies the
`
`allegations contained in paragraph of the Complaint numbered “2” except to admit that
`
`PANASONIC has “conducted business in” the State of New York, and begs leave to refer
`
`all questions of law to this honorable Court.
`
`3.
`
`As “Defendants” refers to parties other than PANASONIC, PANASONIC
`
`denies any knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraph of the Complaint numbered “2”.
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`1 of 26
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`RECEIVED NYSCEF: 03/01/2024
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`4.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“3” through “9” of the Complaint to the extent that such allegations are directed towards
`
`PANASONIC, and begs leave to refer all questions of law to this honorable Court.
`
`5.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “3” through
`
`“9” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “9” of the Complaint.
`
`6.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraph “10” of the
`
`Complaint, and begs leave to refer all questions of law to this honorable Court.
`
`7.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“11” through “19” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`8.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “11” through
`
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`“19” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`9.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “20” through
`
`“22” of the Complaint, and begs leave to refer all questions of law to this honorable Court.
`
`10.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“23” through “35” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`11.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “23” through
`
`“35” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “35” of the Complaint.
`
`3 of 26
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`12.
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`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraph “36” of the
`
`Complaint, and begs leave to refer all questions of law to this honorable Court.
`
`13.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“37” through “39” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`14.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “37” through
`
`“39” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “39” of the Complaint.
`
`15.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“40” through “41” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`4 of 26
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`RECEIVED NYSCEF: 03/01/2024
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`16.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “40” through
`
`“41” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “41” of the Complaint.
`
`17.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“43”, “44”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “54”, “56”, “57”, “58”, “59”, “60”, “61”,
`
`“62”, “63”, “64”, “65”, “66” and “68” of the Complaint to the extent that such allegations
`
`are directed towards PANASONIC, and begs leave to refer all questions of law to this
`
`honorable Court.
`
`18.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “43”, “44”,
`
`“46”, “47”, “48”, “49”, “50”, “51”, “52”, “54”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”,
`
`“64”, “65”, “66” and “68” of the Complaint as they relate to other defendants and
`
`therefore denies them, and begs leave to refer all questions of law to this honorable Court.
`
`5 of 26
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`RECEIVED NYSCEF: 03/01/2024
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`19.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “45”, “53”,
`
`“55” and “67” of the Complaint, and begs leave to refer all questions of law to this
`
`honorable Court.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “68” of the Complaint.
`
`20.
`
`PANASONIC denies that the term ‘contractor(s)’ as defined in the
`
`paragraph of the Complaint numbered “70” applies to PANASONIC in this action.
`
`21.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“71” through “81” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`22.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “71” through
`
`“81” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`6 of 26
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`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR AN ANSWER TO THE SIXTH CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “83” of the Complaint.
`
`23.
`
`PANASONIC denies each and every allegation contained in paragraphs
`
`“84” through “97” of the Complaint to the extent that such allegations are directed
`
`towards PANASONIC, and begs leave to refer all questions of law to this honorable
`
`Court.
`
`24.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraphs “84” through
`
`“97” of the Complaint as they relate to other defendants and therefore denies them, and
`
`begs leave to refer all questions of law to this honorable Court.
`
`25. With regard to the allegations contained in paragraph “98” of the
`
`Complaint, PANASONIC admits that this case is governed by the “Substantive Law of
`
`Admiralty” but denies that, as such this case is therefore “non-removable,” and further
`
`begs leave to refer all questions of law to this honorable Court.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`7 of 26
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION,
`PANASONIC ANSWERS AS FOLLOWS:
`
`PANASONIC repeats and reiterates each and every response hereinbefore made
`
`with the same force and effect as though the same were set forth at length herein in
`
`response to paragraphs “1” through “98” of the Complaint.
`
`26.
`
`PANASONIC denies each and every allegation contained in paragraph
`
`“99” of the Complaint to the extent that such allegations are directed towards
`
`PANASONIC, and begs leave to refer all questions of law to this honorable Court.
`
`27.
`
`PANASONIC is without knowledge or information sufficient to form a
`
`belief as to the truth of each and every allegation contained in paragraph “99” of the
`
`Complaint as they relate to other defendants and therefore denies them, and begs leave
`
`to refer all questions of law to this honorable Court.
`
`28.
`
`PANASONIC denies each and every other allegation contained in the
`
`Complaint not heretofore specifically admitted.
`
`WHEREFORE, defendant denies it is liable for any damages, compensatory,
`
`punitive or otherwise.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`29.
`
`The Complaints fail to state a cause of action against PANASONIC.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`30.
`
`This Court lacks jurisdiction over the subject matter of this action.
`
`8 of 26
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`RECEIVED NYSCEF: 03/01/2024
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`31.
`
`This Court lacks both specific and/or general personal jurisdiction over
`
`PANASONIC.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`32.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or
`
`in part, by the negligence or other culpable conduct of the plaintiffs and/or defendants
`
`other than PANASONIC, which conduct constituted a supervening cause of plaintiffs’
`
`alleged injuries.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`33.
`
`To the extent that the Complaints 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 plaintiffs,
`
`including contributory negligence and assumption of the risk.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`34.
`
`Any damages allegedly sustained by the plaintiffs 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.
`
`9 of 26
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`35.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or
`
`in part, by the negligence or other culpable conduct of one or more persons or
`
`instrumentalities over which PANASONIC had no control and with whom it had no legal
`
`relationship.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`36.
`
`The damages allegedly sustained by the plaintiffs were caused, in whole or
`
`in part, through the operation of nature.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`37.
`
`If the plaintiffs sustained damages as alleged, such damages occurred while
`
`they engaged in activities into which they entered knowing the hazard, risk and danger
`
`of the activities and they assumed the risks incidental to and attendant to the activities.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`38.
`
`The lawsuit was not commenced by the plaintiffs within the time prescribed
`
`by law and the plaintiffs, therefore, are barred from recovery pursuant to applicable
`
`statutes of limitations.
`
`10 of 26
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`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`39.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`40.
`
`To the extent applicable to a particular plaintiff(s), this action cannot be
`
`maintained, as there is another action pending for the same relief.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`41.
`
`To the extent that any injury relating to the named plaintiffs occurred in the
`
`context of an employer-employee relationship, claims for said injuries are barred by the
`
`Workers' Compensation Act.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`42.
`
`No acts or omissions of PANASONIC proximately caused any damages.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`43.
`
`Any product of PANASONIC that may have been present at plaintiffs’ job
`
`locations was placed in any such buildings upon specification, approval or at the
`
`instruction of governmental or legislative agencies or bodies.
`
`11 of 26
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`44.
`
`The damages allegedly sustained by the plaintiffs, which allegedly arose from their
`
`work with or around allegedly asbestos containing products manufactured by PANASONIC (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 PANASONIC.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`45.
`
`The damages allegedly sustained by the plaintiffs 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 PANASONIC,
`
`rather than any defect in the design, manufacture, production, assemblage, installation,
`
`testing, labeling, marketing, distribution, sale or inspection of the Products by
`
`PANASONIC.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`46.
`
`PANASONIC is not liable for the damages allegedly sustained by plaintiffs
`
`because plaintiffs were not in privity of contract with PANASONIC at any time and the
`
`Products were not inherently dangerous.
`
`12 of 26
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`47.
`
`The Products were not defective or dangerous at any time when
`
`PANASONIC had possession or control of it.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`48.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`49.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`50.
`
`PANASONIC is not liable to plaintiffs for the damages alleged in the
`
`Complaints because such damages are excluded and not recoverable under express
`
`warranty.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`51.
`
`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
`
`13 of 26
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`breaches of warranty to PANASONIC pursuant to the applicable provision(s) of the
`
`Uniform Commercial Code.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`52.
`
`Oral warranties upon which plaintiffs allegedly relied are unavailable as
`
`violative of the provisions of the applicable Statute of Frauds.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`53.
`
`To the extent that plaintiffs sustained injuries from the use of a product
`
`alleged to contain asbestos, which is denied, plaintiffs, plaintiffs’ decedents, other
`
`defendants or other parties not under the control of PANASONIC 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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`54.
`
`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 PANASONIC denies is available
`
`in this case, then PANASONIC’s share of such liability would be of such a de minimis
`
`amount as to make its contribution for damages negligible and PANASONIC would be
`
`entitled to contribution, either in whole or in part, from co-defendants.
`
`14 of 26
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`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`55.
`
`The asbestos products alleged in plaintiffs’ Complaints are not products
`
`within the meaning and scope of the Restatement of Torts Section 402A and, as such, the
`
`Complaints fails to state a cause of action in strict liability.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`56.
`
`PANASONIC 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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`57.
`
`The plaintiffs did not directly or indirectly purchase any asbestos-
`
`containing products or materials from PANASONIC and the plaintiffs did not either
`
`receive or rely upon any representation or warranty allegedly made by PANASONIC.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`58.
`
`To the extent that the plaintiffs were exposed to any product containing
`
`asbestos as a result of conduct by PANASONIC, which is denied, said exposure was de
`
`minimis and not a substantial contributing factor to any asbestos-related disease which
`
`the plaintiffs may have developed, and not actionable at law or equity.
`
`15 of 26
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`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`59.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`60.
`
`Finished asbestos-containing products are not unreasonably dangerous as
`
`a matter of law.
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`61.
`
`If PANASONIC was on notice of any hazard or defect for which plaintiffs
`
`seek relief, which PANASONIC denies, plaintiffs also had such notice and are thereby
`
`barred from recovery.
`
`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`62.
`
`Any damages must be reduced by the value of the benefit received by
`
`plaintiffs from the use of PANASONIC’s products.
`
`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`63.
`
`There is no justiciable issue or controversy.
`
`16 of 26
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`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
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`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`64.
`
`The claims for damages have not accrued and are purely speculative,
`
`uncertain and contingent.
`
`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`65.
`
`Plaintiffs have acted voluntarily, unnecessarily, prematurely, with no
`
`evidence of injury to anyone at any job locations.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`66.
`
`None of the alleged injuries or damages was foreseeable at the time of the
`
`Complaints, or at the time of the alleged acts or omissions in plaintiffs’ Complaints.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`67.
`
`PANASONIC 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, PANASONIC’s failure to do so was not a superseding
`
`proximate cause of injury.
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`68.
`
`Plaintiffs were warned of the risks of exposure to and use of asbestos-
`
`containing materials.
`
`17 of 26
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`
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`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`69.
`
`Plaintiffs’ claims are barred as a matter of public policy, since social utility
`
`and benefit of asbestos-containing products outweighed the risk.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`70.
`
`To the extent that the plaintiffs seek to maintain a claim for relief on behalf
`
`of any decedent, said plaintiffs lack capacity and/or standing to maintain such claim for
`
`relief against PANASONIC.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`71.
`
`Plaintiffs’ claims are barred because of plaintiffs’ failure to join necessary
`
`and indispensable parties.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`72.
`
`Plaintiffs may not bring this action as they have failed to exhaust all of their
`
`administrative remedies.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`73.
`
`Plaintiffs and/or plaintiffs’ decedents failed to mitigate or otherwise act to
`
`lessen or reduce the injuries alleged in the Complaints.
`
`18 of 26
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`
`
`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`74.
`
`Plaintiffs’ demands for exemplary or punitive damages are barred because
`
`such damages are not recoverable or warranted in this action.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`75.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`76.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`77.
`
`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.
`
`19 of 26
`
`
`
`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`78.
`
`If plaintiffs sustained injuries in the manner alleged, all of which has been
`
`denied by PANASONIC, the liability of PANASONIC, if any, shall be limited in
`
`accordance with Article 16 of the Civil Practice Law and Rules.
`
`AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`79.
`
`At all times relevant to this litigation, PANASONIC complied with all
`
`applicable laws, regulations and standards.
`
`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`80.
`
`Relief is barred by virtue of the doctrines of estoppel and waiver.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`81.
`
`At all times relevant to this litigation, the agents, servants and/or
`
`employees of PANASONIC utilized proper methods in the conduct of their operations,
`
`in conformity with the available knowledge and research of the scientific and industrial
`
`communities.
`
`20 of 26
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`
`
`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`82.
`
`Plaintiffs contributed to their 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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`83.
`
`Some or all of the causes of action may not be maintained because of
`
`arbitration and award.
`
`AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`84.
`
`Some or all of the causes of action may not be maintained because of
`
`collateral estoppel.
`
`AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`85.
`
`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
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`86.
`
`Some or all of the causes of action may not be maintained because of
`
`payment.
`
`21 of 26
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`
`
`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`87.
`
`Some or all of the causes of action may not be maintained because of release.
`
`AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`88.
`
`Some or all of the causes of action may not be maintained because of res
`
`judicata.
`
`AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`89.
`
`Plaintiffs’ claims are barred by the doctrine of laches.
`
`AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`90.
`
`To the extent any plaintiffs herein brings suit in a representative capacity,
`
`such plaintiffs have failed to allege sufficient facts to demonstrate legal capacity to sue
`
`pursuant to New York Estates, Powers, and Trusts Law §5-1.1 to 5-4.6.
`
`AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE
`PANASONIC ALLEGES
`UPON INFORMATION AND BELIEF
`
`91.
`
`All defenses which have been or will be asserted by other defendants
`
`and/or any third-party defendants in this action are adopted and incorporated by
`
`reference as if fully set forth at length herein as defenses to plaintiffs’ Complaints. In
`
`addition, PANASONIC will rely upon any and all other and further defenses which
`
`become available or appear during discovery proceedings in this action and hereby
`
`22 of 26
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`
`
`FILED: NEW YORK COUNTY CLERK 03/01/2024 07:40 PM
`NYSCEF DOC. NO. 54
`
`INDEX NO. 190011/2024
`
`RECEIVED NYSCEF: 03/01/2024
`
`specifically reserves the right to amend its answer for the purposes of asserting any such
`
`additional af
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