FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
`NYSCEF DOC. NO. 31
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`INDEX NO. 190280/2022
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`RECEIVED NYSCEF: 01/09/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`- -------------------------------------------------------------------- X
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`This Document Relates To:
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`Index No.: 190280/2022
`GAIL KURSH and ZEV PRIMOR,
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`: VERIFIED ANSWER TO AMENDED
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`VERIFIED COMPLAINT
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`ARKEMA, INC., f/k/a Pennwalt Corp., et al.
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`Defendant GSK CONSUMER HEALTH, INC., incorrectly sued herein as “GSK
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`-against-
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`Plaintiffs,
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`Defendants.
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`CONSUMER HEALTH, INC., Individually and as successor-in-interest to Novartis
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`Pharmaceutical Corporation”, (hereinafter “GSK Consumer” or “Defendant”), by their
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`attorneys Harris Beach, PLLC, by way of a Verified Answer to Plaintiff’s First Amended Verified
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`Complaint (the “Complaint”) states as follows:
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`AS TO THE PARTIES
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`1.
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`GSK Consumer denies knowledge or information sufficient to form a belief with
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`respect to the truth of the allegations contained in Paragraphs “1”, “2” and “3” of the Complaint.
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`2.
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` GSK Consumer denies each and every allegation contained in paragraphs “4”, “5”,
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`“6”, “7”, “8”, “9” and “10” of the Complaint, to the extent such allegations are directed towards
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`GSK Consumer. GSK Consumer is without knowledge or information sufficient to form a belief
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`as to the truth of each and every allegation contained in paragraphs “4”, “5”, “6”, “7”, “8”, “9” and
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`“10” of the Complaint as they relate to other defendants, and therefore denies them and refers all
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`questions of law to this Honorable Court.
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`FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
`NYSCEF DOC. NO. 31
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`INDEX NO. 190280/2022
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`RECEIVED NYSCEF: 01/09/2023
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`3.
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`GSK Consumer is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “11”, “12”, “13”, “14”, “15”,
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`“16”, “17”, “18”, “19”, “20”, “21”, “22” and “23” of the Complaint as they relate to other
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`defendants, and therefore denies them, and refers all questions of law to this honorable Court.
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`4.
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`GSK Consumer denies each and every allegation contained in paragraph “24” of
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`the Complaint, except admits that GSK Consumer is a foreign corporation.
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`5.
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`GSK Consumer is without knowledge or information sufficient to form a belief as
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`to the truth of each and every allegation contained in paragraphs “25”, “26”, “27”, “28”, “29”,
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`“30”, “31” and “32” of the Complaint as they relate to other defendants, and therefore denies them,
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`and refers all questions of law to this honorable Court.
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`6.
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`GSK Consumer denies each and every allegation contained in paragraphs “33”,
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`“34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49” and
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`“50” of the Complaint, to the extent such allegations are directed towards GSK Consumer. GSK
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`Consumer is without knowledge or information sufficient to form a belief as to the truth of each
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`and every allegation contained in paragraphs “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”,
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`“42”, “43”, “44”, “45”, “46”, “47”, “48”, “49” and “50” of the Complaint as they relate to other
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`defendants, and therefore denies them and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S FIRST CAUSE OF ACTION
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`7.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though set forth at length in answer to the paragraph numbered
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`“51” of the Complaint
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`8.
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`GSK Consumer denies each and every allegation contained in paragraphs “52”,
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`“53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”,
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`FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
`NYSCEF DOC. NO. 31
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`“69(a-p)”, “70”, “71”, “72”, “73”, “74”, “75”, “76”, “77”, “78”, “79”, “80”, “81”, “82”, “83” and
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`“84” of the Complaint, to the extent such allegations are directed towards GSK Consumer. GSK
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`Consumer is without knowledge or information sufficient to form a belief as to the truth of each
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`and every allegation contained in paragraphs “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”,
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`“61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69(a-p)”, “70”, “71”, “72”, “73”, “74”, “75”,
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`“76”, “77”, “78”, “79”, “80”, “81”, “82”, “83” and “84” of the Complaint as they relate to other
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`defendants, and therefore denies them and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S SECOND CAUSE OF ACTION
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`9.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though set forth at length in answer to the paragraph numbered
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`“85” of the Complaint.
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`10.
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`GSK Consumer denies each and every allegation contained in paragraphs “86”,
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`“87”, “88”, “89”, “90”, “91”, “92” and “93” of the Complaint, to the extent such allegations are
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`directed towards GSK Consumer. GSK Consumer is without knowledge or information sufficient
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`to form a belief as to the truth of each and every allegation contained in paragraphs “86”, “87”,
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`“88”, “89”, “90”, “91”, “92” and “93” of the Complaint as they relate to other defendants, and
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`therefore denies them and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S THIRD CAUSE OF ACTION
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`11.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraphs
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`numbered “94” and “95” of the Complaint.
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`12.
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`GSK Consumer denies each and every allegation contained in paragraphs “96”,
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`“97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”,
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`FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
`NYSCEF DOC. NO. 31
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`“111”, “112”, “113(a-i)”, “114”, “115”, “116” and “117” of the Complaint, to the extent such
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`allegations are directed towards GSK Consumer. GSK Consumer is without knowledge or
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`information sufficient to form a belief as to the truth of each and every allegation contained in
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`paragraphs “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105”, “106”, “107”,
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`“108”, “109”, “110”, “111”, “112”, “113(a-i)”, “114”, “115”, “116” and “117” of the Complaint
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`as they relate to other defendants, and therefore denies them and refers all questions of law to this
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`Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S FOURTH CAUSE OF ACTION
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`13.
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “118” of the Complaint.
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`14.
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`GSK Consumer denies each and every allegation contained in paragraphs “119”,
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`“120”, “121”, “122”, “123” and “124” of the Complaint, to the extent such allegations are directed
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`towards GSK Consumer. GSK Consumer is without knowledge or information sufficient to form
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`a belief as to the truth of each and every allegation contained in paragraphs “119”, “120”, “121”,
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`“122”, “123” and “124” of the Complaint as they relate to other defendants, and therefore denies
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`them and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S FIFTH CAUSE OF ACTION
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`15.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “125” of the Complaint.
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`16.
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`GSK Consumer denies each and every allegation contained in paragraphs “126”,
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`“127”, “128”, “129” and “130” of the Complaint, to the extent such allegations are directed
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`FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
`NYSCEF DOC. NO. 31
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`RECEIVED NYSCEF: 01/09/2023
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`towards GSK Consumer. GSK Consumer is without knowledge or information sufficient to form
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`a belief as to the truth of each and every allegation contained in paragraphs “126”, “127”, “128”,
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`“129” and “130” of the Complaint as they relate to other defendants, and therefore denies them
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`and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S SIXTH CAUSE OF ACTION
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`17.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “131” of the Complaint.
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`18.
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`GSK Consumer denies each and every allegation contained in paragraphs “132”,
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`“133”, “134”, “135”, “136”, “137”, “138”, “139”, “140”, “141”, “142”, “143”, “144”, “145”,
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`“146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “155”, “156”, “157”, “158”,
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`“159”, “160”, “161”, “162”, “163”, “164”, “165”, “166”, “167”, “168”, “169”, “170”, “171”,
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`“172”, “173”, “174”, “175”, “176”, “177”, “178”, “179”, “180”, “181”, “182”, “183”, “184”,
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`“185”, “186”, “187”, “188”, “189”, “190”, “191”, “192”, “193” and “194” of the Complaint, to
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`the extent such allegations are directed towards GSK Consumer. GSK Consumer is without
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`knowledge or information sufficient to form a belief as to the truth of each and every allegation
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`contained in paragraphs “132”, “133”, “134”, “135”, “136”, “137”, “138”, “139”, “140”, “141”,
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`“142”, “143”, “144”, “145”, “146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”,
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`“155”, “156”, “157”, “158”, “159”, “160”, “161”, “162”, “163”, “164”, “165”, “166”, “167”,
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`“168”, “169”, “170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”, “179”, “180”,
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`“181”, “182”, “183”, “184”, “185”, “186”, “187”, “188”, “189”, “190”, “191”, “192”, “193” and
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`“194” as they relate to other defendants, and therefore denies them and refers all questions of law
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`to this Honorable Court.
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`FILED: NEW YORK COUNTY CLERK 01/09/2023 04:41 PM
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`RECEIVED NYSCEF: 01/09/2023
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`AS AND FOR AN ANSWER TO PLAINTIFF’S SEVENTH CAUSE OF ACTION
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`19.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “195” of the Complaint.
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`20.
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`GSK Consumer denies each and every allegation contained in paragraphs “196”,
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`“197”, “198”, “199”, “200”, “201”, “202”, “203”, “204”, “205”, “206”, “207”, “208”, “209”,
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`“210”, “211”, “212”, “213”, “214” and “215” of the Complaint, to the extent such allegations are
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`directed towards GSK Consumer. GSK Consumer is without knowledge or information sufficient
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`to form a belief as to the truth of each and every allegation contained in paragraphs “196”, “197”,
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`“198”, “199”, “200”, “201”, “202”, “203”, “204”, “205”, “206”, “207”, “208”, “209”, “210”,
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`“211”, “212”, “213”, “214” and “215” as they relate to other defendants, and therefore denies them
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`and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S EIGHTH CAUSE OF ACTION
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`21.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “216” of the Complaint.
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`22.
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`GSK Consumer denies each and every allegation contained in paragraphs “217”,
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`“218”, “219”, “220”, “221”, “222”, “223”, “224”, “225”, “226”, “227”, “228(a-u)”, “229”, “230(a-
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`n)”, “231”, “232”, “233”, “234”, “235”, “236” and “237” of the Complaint, to the extent such
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`allegations are directed towards GSK Consumer. GSK Consumer is without knowledge or
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`information sufficient to form a belief as to the truth of each and every allegation contained in
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`paragraphs “217”, “218”, “219”, “220”, “221”, “222”, “223”, “224”, “225”, “226”, “227”, “228(a-
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`u)”, “229”, “230(a-n)”, “231”, “232”, “233”, “234”, “235”, “236” and “237” as they relate to other
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`defendants, and therefore denies them and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S NINTH CAUSE OF ACTION
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`23.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “238” of the Complaint.
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`24.
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`GSK Consumer denies knowledge or information sufficient to form a belief with
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`respect to the truth of the allegations contained in Paragraphs “239” and “240” of the Complaint.
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`25.
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`GSK Consumer denies each and every allegation contained in paragraph “241” of
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`the Complaint, to the extent such allegations are directed towards GSK Consumer. GSK Consumer
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`is without knowledge or information sufficient to form a belief as to the truth of each and every
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`allegation contained in paragraph “241” of the Complaint as they relate to other defendants, and
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`therefore denies them and refers all questions of law to this Honorable
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`AS AND FOR AN ANSWER TO JOINT AND SEVERAL LIABILITY
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`26.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “242” of the Complaint.
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`27.
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`GSK Consumer denies each and every allegation contained in paragraphs “243”,
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`“244”, “245”, “246”, “247”, “248”, “249” and “250” of the Complaint, to the extent such
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`allegations are directed towards GSK Consumer. GSK Consumer is without knowledge or
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`information sufficient to form a belief as to the truth of each and every allegation contained in
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`paragraphs “243”, “244”, “245”, “246”, “247”, “248”, “249” and “250” of the Complaint as they
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`relate to other defendants, and therefore denies them and refers all questions of law to this
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`Honorable Court.
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`AS AND FOR AN ANSWER TO PUNITIVE DAMAGES
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`28.
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`GSK Consumer repeats and reiterates each and every answer hereinbefore made
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`with the same force and effect as though were set forth at length in answer to the paragraph
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`numbered “251” of the Complaint.
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`29.
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`GSK Consumer denies each and every allegation contained in paragraphs “252”,
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`“253”, “254(a-c)”, “255” and “256” of the Complaint, to the extent such allegations are directed
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`towards GSK Consumer. GSK Consumer is without knowledge or information sufficient to form
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`a belief as to the truth of each and every allegation contained in paragraphs “252”, “253”, “254(a-
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`c)”, “255” and “256” of the Complaint as they relate to other defendants, and therefore denies them
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`and refers all questions of law to this Honorable Court.
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`AS AND FOR AN ANSWER TO PLAINTIFF’S PARYER FOR RELIEF
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`GSK Consumer denies each and every allegation contained in paragraphs “257”,
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`30.
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`“258” and “259” of Plaintiff’s Prayer for Relief subsection of the Complaint, to the extent such
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`allegations are directed towards GSK Consumer. GSK Consumer is without knowledge or
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`information sufficient to form a belief as to the truth of each and every allegation contained in
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`paragraphs “257”, “258” and “259” of Plaintiff’s Prayer for Relief subsection of the Complaint, as
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`they relate to other defendants, and therefore denies them and refers all questions of law to this
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`Honorable Court.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The Complaint fails to state a cause of action against Defendant.
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`31.
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`32.
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`33.
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`34.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`This Court lacks jurisdiction over the subject matter of this action.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The claims of Plaintiffs are barred by the doctrine of laches.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The damages allegedly sustained by Plaintiff were caused, in whole or in part, by
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`the negligence or other culpable conduct of the Plaintiff and/or Defendants other than GSK
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`Consumer, which conduct constituted a supervening cause of plaintiff’s alleged injuries.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`Insofar as the Complaint and each cause of action considered separately alleges a
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`35.
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`cause of action occurring before September 1, 1975, each such cause of action is barred by reason
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`of the culpable conduct attributable to plaintiff, including contributory negligence and assumption
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`of the risk.
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`36.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`Any damages allegedly sustained by Plaintiffs were the proximate result of the
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`unforeseen and/or unforeseeable negligent, grossly negligent, wanton or reckless omission or
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`conduct of intervening third parties or superseding parties.
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`37.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The damages allegedly sustained by the Plaintiffs were caused, in whole or in part,
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`by the negligence or other culpable conduct of one or more persons or instrumentalities over which
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`Defendant had no control and with whom they had no legal relationship.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`38.
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`The damages allegedly sustained by Plaintiffs were caused, in whole or in part,
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`through the operation of nature.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`If the Plaintiffs sustained damages as alleged, such damages occurred while they
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`39.
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`were engaged in activities into which they entered knowing the hazard, risk and danger of the
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`activities and he assumed the risks incidental to and attendant to the activities.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`40.
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`The lawsuit was not commenced by the Plaintiffs within the time prescribed by law
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`and therefore, are barred from recovery pursuant to applicable statutes of limitations.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`All claims brought under New York Law, L. 1986 c. 682 Section 4 (enacted July
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`41.
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`31, 1986) are time-barred in that said statute is in violation of the Constitution of the United States
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`and the Constitution of the State of New York.
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`relief.
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`42.
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`43.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`This action cannot be maintained, as there is another action pending for the same
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`To the extent that any injury relating to the Plaintiffs occurred in the context of an
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`employer-employee relationship, claims for said injuries are barred by the Workers' Compensation
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`Act.
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`44.
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`45.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`No acts or omissions of Defendant proximately caused any damages.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The damages allegedly sustained by the Plaintiffs, which allegedly arose from his
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`use of or work with or around allegedly asbestos containing/contaminated product- or products
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`associated with GSK Consumer (the “Product(s)”) were caused, in whole or in part, by the
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`improper use of the Products, rather than any defect in the design, manufacture, production,
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`assemblage, installation, testing, labeling, marketing, distribution, sale or inspection of the
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`Products by GSK Consumer.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`GSK Consumer does not have successor liability for the Product or Products at
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`46.
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`issue.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The damages allegedly sustained by Plaintiffs which allegedly arose from the
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`47.
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`Product or Products at issue with respect to Defendant were caused by the alteration, misuse and/or
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`improper maintenance of the products by one or more persons or instrumentalities other than
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`Defendant, rather than any defect in the design, manufacture, production, assemblage, installation,
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`testing, labeling, marketing, distribution, sale or inspection of the Product or Products by
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`Defendant.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`Defendant is not liable for the damages allegedly sustained by Plaintiffs because
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`48.
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`Plaintiffs were not in privity of contract with Defendant at any time and the Products were not
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`inherently dangerous.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`49.
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`The Product or Products were not defective or dangerous at any time when GSK
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`had possession or control of it or them.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`All implied warranties, including the warranties of merchantability and fitness for
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`50.
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`a particular purpose, were excluded at the time of the sale of the Product or Products.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`
`51.
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`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 Product or Products.
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`52.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Defendant is not liable to Plaintiff for the damages alleged in the Complaint because
`
`such damages are excluded and not recoverable under express warranty.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`
`53.
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`The purchaser of the Product or Products and all beneficiaries of any warranties,
`
`express or implied, relating to the product or products failed to provide notice of the alleged
`
`breaches of warranty to Defendant pursuant to the applicable provision of the Uniform
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`Commercial Code.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`Oral warranties upon which Plaintiffs allegedly relied are unavailable as violative
`
`54.
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`of the provisions of the applicable Statute of Frauds.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`
`55.
`
`To the extent that Plaintiffs sustained injuries from the use of a Product alleged to
`
`contain asbestos, which is denied, Plaintiffs, other Defendants or other parties not under the control
`
`of Defendant misused, abused, misapplied and otherwise mishandled the product or products
`
`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.
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`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`In the event it should be proven at the time of trial that all the Defendant to this
`
`56.
`
`action are subject to market share liability, which Defendant denies is available in this case, then
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`Defendant’ share of such liability would be of such a de minimis amount as to make its contribution
`
`for damages negligible and Defendant would be entitled to contribution, either in whole or in part,
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`from co-Defendant.
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`The Products alleged in Plaintiff’s Complaint are not Products within the meaning
`
`57.
`
`and scope of the Restatement of Torts Section 402A and as such the Complaint fails to state a
`
`cause of action in strict liability.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Defendant had no knowledge or reason to know of any alleged risks associated with
`
`58.
`
`asbestos and/or asbestos-containing products at any time during the periods complained of.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`
`59.
`
`Plaintiffs did not directly or indirectly purchase any asbestos-containing products
`
`or materials from Defendant and Plaintiffs did not either receive or rely upon any representation
`
`or warranty allegedly made by Defendant.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`To the extent that Plaintiffs were exposed to any product containing asbestos as a
`
`60.
`
`result of conduct by Defendant, which is denied, said exposure was de minimis and not a
`
`substantial contributing factor to any asbestos-related disease which Plaintiffs may have
`
`developed, and not actionable at law or equity.
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`61.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Exposure to asbestos fibers attributable to the product or products, which is denied,
`
`is so minimal as to be insufficient to establish to a reasonable degree of probability that the Product
`
`or Products are capable of causing injury or damages and must be considered speculative as a
`
`matter of law.
`
`62.
`
`of law.
`
`
`63.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Finished asbestos-containing products are not unreasonably dangerous as a matter
`
`AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`If Defendant were on notice of any hazard or defect for which Plaintiffs seeks relief,
`
`which Defendant denies, Plaintiffs also had such notice and is thereby barred from recovery.
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`AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Any damages must be reduced by the value of the benefit received by Plaintiffs
`
`64.
`
`from the use of Defendant’s Product or Products.
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`AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`There is no justiciable issue or controversy.
`
`AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
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`The claims for damages have not accrued and are purely speculative, uncertain and
`
`65.
`
`
`66.
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`contingent.
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`AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs acted voluntarily, unnecessarily, prematurely, with no evidence of injury
`
`67.
`
`to anyone at any job locations.
`
`AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`None of the alleged injuries or damages was foreseeable at the time of the
`
`68.
`
`Complaint or at the time of the acts or omissions in Plaintiffs’ Complaint.
`
`AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Defendant was under no duty to warn purchasers, as others were in a better position
`
`AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs were warned of the risks of exposure to and use of asbestos-containing
`
`AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ claims are barred as a matter of public policies, since social utility and
`
`
`69.
`
`to warn.
`
`70.
`
`materials.
`
`
`71.
`
`benefit of asbestos-containing products outweighed the risk.
`
`AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`To the extent that Plaintiffs seeks to maintain a claim for relief on behalf of
`
`72.
`
`Plaintiffs’ Decedent, Plaintiff lacks capacity and/or standing to maintain such claim for relief
`
`against Defendant.
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`73.
`
`AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ claims are barred because of Plaintiffs’ failure to join necessary and
`
`indispensable parties.
`
`AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE
`DEFEDANTS ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs may not bring this action as they have failed to exhaust all of their
`
`74.
`
`administrative remedies.
`
`AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs failed to mitigate or otherwise act to lessen or reduce the injuries alleged
`
`75.
`
`in the Complaint.
`
`AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ demands for exemplary or punitive damages are barred because such
`
`76.
`
`damages are not recoverable or warranted in this action.
`
`AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ demands for punitive damages are barred by the due process clauses of
`
`77.
`
`the Fourteenth Amendment to the United States Constitution and the New York State Constitution.
`
`AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Plaintiffs’ demands for punitive damages are barred by the proscription of the
`
`78.
`
`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.
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`79.
`
`AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`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
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`If Plaintiff sustained injuries in the manner alleged, all of which has been denied
`
`80.
`
`by Defendant, the liability of Defendant, 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
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`At all times relevant to this litigation, Defendant complied with all applicable laws,
`
`81.
`
`regulations and standards.
`
`AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGES UPON INFORMATION AND BELIEF
`
`Relief is barred by virtue of the doctrines of estoppel and waiver.
`
`AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE
`DEFENDANT ALLEGESUPON INFORMATION AND BELIEF
`
`At all times relevant to this litigation, the agents, servants and/or employees of
`
`82.
`
`83.
`
`Defendant utilized proper methods in the conduct of their operations in conformity with the
`
`available knowledge and research of the scientific and indust