FILED: NEW YORK COUNTY CLERK 06/30/ :47 PM INDEX NO /2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 06/30/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 06/30/ :47 PM INDEX NO /2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 06/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE NEW YORK CITY ASBESTOS LITIGATION AMADO GONZALES and ANGELA GONZALES, 3M CO., et al., v. Plaintiffs, Defendants. NYCAL Hon. Peter H. Moulton Index No /2016 DEFENDANT ROHM & HAAS CO. S VERIFIED ANSWER WITH CROSS-CLAIMS Defendant Rohm and Haas Co., incorrectly sued as Rohm and Haas Co., Individually and as Successor to Plaskon Plastics Inc. and Plaskon Electronic Materials Inc. ( Rohm & Haas ), by its attorneys, Darger Errante Yavitz & Blau LLP, answers the Verified Complaint ( Complaint ) of Plaintiffs Amado Gonzales and Angela Gonzales ( Plaintiffs ), as follows: THE PARTIES 1. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 1 through 33 of the Complaint. 2. Rohm & Haas denies the truth of the allegations contained in Paragraph 34 of the Complaint, except admits that Rohm & Haas has done and still does business in the State of New York, and refers all questions of law to the Court. 3. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 35 through 48 of the Complaint. 1 of 33

2 THE LANIER LAW FIRM PLLC STANDARD ASBESTOS COMPLAINT FOR PERSONAL INJURY NO. 2 - PARTIES 4. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 1 and 2 of the Lanier Law Firm PLLC Verified Standard Asbestos Complaint for Personal Injury No. 2 (incorporated into the Complaint) ( Standard Complaint ). 5. Rohm & Haas denies the truth of the allegations contained in Paragraph 3 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, except admits that Rohm & Haas has done and still does business in the State of New York, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraph as they pertain to Defendants other than Rohm & Haas, and refers all questions of law to the Court. 6. The allegations contained in Paragraph 4 of the Standard Complaint are a conclusion to which no response is required. To the extent a response is required, Rohm & Haas denies the truth of the allegations contained in the aforesaid Paragraph as they pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraph as they pertain to Defendants other than Rohm & Haas, and refers all questions of law to the Court. 7. Rohm & Haas denies the truth of the allegations contained in Paragraph 5 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, except admits that Rohm & Haas has done business in the State of New York, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraph as they pertain to Plaintiffs or Defendants other than Rohm & Haas, and refers all questions of law to the Court. 8. Rohm & Haas denies the truth of the allegations contained in Paragraphs 6 through 18 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies 2 2 of 33

3 knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or Defendants other than Rohm & Haas, and refers all questions of law to the Court. AS TO THE FIRST CAUSE OF ACTION FOR NEGLIGENCE, EXCEPT STANDARD COMPLAINT PARAGRAPHS 29(d), 29(e), 29(k), 29(l), 29(o) ARE NOT CLAIMED OR ALLEGED TO HAVE OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 9. In response to Paragraph 19 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 10. Rohm & Haas denies the truth of the allegations contained in Paragraphs 20 through 34 of the Standard Complaint, including all sub-parts therein, insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the First Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE SECOND CAUSE OF ACTION FOR BREACH OF WARRANTY, EXCEPT NO CLAIMS OR ALLEGATIONS ARE MADE WITH RESPECT TO EXPOSURES WHICH OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 11. In response to Paragraph 35 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 12. Rohm & Haas denies the truth of the allegations contained in Paragraphs 36 through 39 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in 3 3 of 33

4 the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Second Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE THIRD CAUSE OF ACTION FOR STRICT LIABILITY, EXCEPT NO CLAIMS OF A MANUFACTURING DESIGN DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE IN RELATION TO EXPOSURES WHICH OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 13. In response to Paragraph 40 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 14. Rohm & Haas denies the truth of the allegations contained in Paragraphs 41 through 54 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Third Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE FOURTH CAUSE OF ACTION FOR NEGLIGENT FAILURE TO WARN 15. In response to Paragraph 55 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 16. Rohm & Haas denies the truth of the allegations contained in Paragraphs 56 through 66 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies 4 4 of 33

5 knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Fourth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE FIFTH CAUSE OF ACTION FOR CONSPIRACY AND COLLECTIVE LIABILITY/CONCERT OF ACTION, EXCEPT NO CLAIMS OF A MANUFACTURING OR DESIGN DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE IN RELATION TO EXPOSURES WHICH OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 17. In response to Paragraph 67 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 18. Rohm & Haas denies the truth of the allegations contained in Paragraphs 68 through 81 of the Standard Complaint, including all sub-parts therein, insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Fifth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE SIXTH CAUSE OF ACTION FOR LABOR LAW VIOLATIONS 19. In response to Paragraph 82 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 5 5 of 33

6 20. Rohm & Haas denies the truth of the allegations contained in Paragraphs 83 through 98 of the Standard Complaint, including all sub-parts therein, insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Sixth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE SEVENTH CAUSE OF ACTION (AGAINST DEFENDANT CONTRACTORS ONLY) 21. In response to Paragraph 99 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 22. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 100 through 113 of the Standard Complaint insofar as they pertain to Plaintiff or to Defendants other than Rohm & Haas, denies the truth of the allegations contained in the aforesaid Paragraphs insofar as such allegations may pertain to Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, insofar as the Seventh Cause of Action pertains to Rohm & Haas, Rohm & Haas demands the Seventh Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE EIGHTH CAUSE OF ACTION (AGAINST PREMISES DEFENDANTS ONLY) 23. In response to Paragraph 114 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 6 6 of 33

7 24. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 115 through 134 of the Standard Complaint insofar as they pertain to Plaintiff or to Defendants other than Rohm & Haas, denies the truth of the allegations contained in the aforesaid Paragraphs insofar as such allegations may pertain to Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, insofar as the Eighth Cause of Action pertains to Rohm & Haas, Rohm & Haas demands the Eighth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE NINTH CAUSE OF ACTION (AGAINST DUST MASK DEFENDANTS ONLY) 25. In response to Paragraph 135 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 26. Rohm & Haas denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 136 through 141 of the Standard Complaint insofar as they pertain to Plaintiff or to Defendants other than Rohm & Haas, denies the truth of the allegations contained in the aforesaid Paragraphs insofar as such allegations may pertain to Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, insofar as the Ninth Cause of Action pertains to Rohm & Haas, Rohm & Haas demands the Ninth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. 7 7 of 33

8 AS TO THE TENTH CAUSE OF ACTION, EXCEPT NO CLAIMS OF A MANUFACTURING OR DESIGN DEFECT, OTHER THAN FAILURE TO WARN, ARE MADE IN RELATION TO EXPOSURES WHICH OCCURRED AT, UPON OR ABOARD ANY FACILITY OR VESSEL COMMISSIONED, CONSTRUCTED, CONTROLLED OR OWNED CONTEMPORANEOUSLY BY THE UNITED STATES GOVERNMENT 27. In response to Paragraph 142 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 28. Rohm & Haas denies the truth of the allegations contained in Paragraphs 143 through 158 of the Standard Complaint, including all sub-parts therein, insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Tenth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE ELEVENTH CAUSE OF ACTION FOR PUNITIVE DAMAGES 29. In response to Paragraph 159 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 30. Rohm & Haas denies the truth of the allegations contained in Paragraph 160 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. 8 8 of 33

9 WHEREFORE, Rohm & Haas demands the Eleventh Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. AS TO THE TWELFTH CAUSE OF ACTION FOR SPOUSAL LOSS OF CONSORTIUM 31. In response to Paragraph 161 of the Standard Complaint, Rohm & Haas repeats and reiterates its prior responses to the Complaint as if alleged more fully below. 32. Rohm & Haas denies the truth of the allegations contained in Paragraph 162 of the Standard Complaint insofar as such allegations pertain to Rohm & Haas, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid Paragraphs as they pertain to Plaintiffs or to Defendants other than Rohm & Haas, and refers all questions of law to the Court. WHEREFORE, Rohm & Haas demands the Twelfth Cause of Action be dismissed with prejudice and that judgment be entered in favor of Rohm & Haas and against Plaintiffs, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. FIRST AFFIRMATIVE DEFENSE The Court lacks jurisdiction over the subject matter of this action. SECOND AFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over Rohm & Haas. THIRD AFFIRMATIVE DEFENSE All claims are time-barred by the applicable Statute of Limitations. 9 9 of 33

10 FOURTH AFFIRMATIVE DEFENSE All claims are barred by the applicable statute of repose. FIFTH AFFIRMATIVE DEFENSE All causes of action have not been maintained in a timely fashion and Plaintiffs have neglected the same and should be barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE All claims should be dismissed based upon inconvenient forum. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs lack the legal capacity, standing, and authority to bring this action. N EIGHTH AFFIRMATIVE DEFENSE All claims should be dismissed based upon waiver. NINTH AFFIRMATIVE DEFENSE All claims should be dismissed based upon the doctrines of accord and satisfaction, judicial estoppel, payment and release, collateral estoppel, and/or res judicata. TENTH AFFIRMATIVE DEFENSE All claims should be dismissed based upon documentary evidence. N ELEVENTH AFFIRMATIVE DEFENSE All claims should be dismissed based upon Plaintiffs infancy or other disability of 33

11 TWELFTH AFFIRMATIVE DEFENSE Any damages sustained by Plaintiffs were the result of an intervening and/or superseding cause not of Rohm & Haas s doing. THIRTEENTH AFFIRMATIVE DEFENSE The Complaint and each and every allegation considered separately fail to state any cause of action against Rohm & Haas upon which relief can be granted. FOURTEENTH AFFIRMATIVE DEFENSE This action is barred by Plaintiffs failure to join necessary and/or indispensable parties without which this action should not proceed and should be dismissed. Venue is improper. FIFTEENTH AFFIRMATIVE DEFENSE SIXTEENTH AFFIRMATIVE DEFENSE There is a lack or insufficiency of service of process upon Rohm & Haas. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims are or may be barred or otherwise limited or affected by the application of provisions of the law or statutes of states or jurisdictions other than the State of New York where the relevant alleged exposure may have occurred. satisfaction. N EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims are or may be barred or otherwise limited by reason of accord and of 33

12 NINETEENTH AFFIRMATIVE DEFENSE In the event that Plaintiffs were employed by Rohm & Haas, Plaintiffs sole and exclusive remedy is under the Workers Compensation Law of the State of New York, the Longshoremen s and Harbor Workers Compensation Act, and the workers compensation laws of any other state, jurisdiction, and/or venue where Plaintiffs may have worked. TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs loss of consortium claim is barred as a matter of law to the extent that the alleged exposure to Rohm & Haas s product, material, or equipment predates the date of Plaintiffs marriage. TWENTY-FIRST AFFIRMATIVE DEFENSE The alleged injuries were or may have been due to exposure to products, materials, or equipment of manufacturers, distributors, or suppliers not named as defendants in this action. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs alleged injuries were not caused by exposure to any alleged Rohm & Haas product, material, or equipment. TWENTY-THIRD AFFIRMATIVE DEFENSE Rohm & Haas denies any successor liability for any product, material or equipment from which Plaintiffs allege injuries of 33

13 TWENTY-FOURTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs worked with or around any product, material, or equipment manufactured, sold, or distributed by Rohm & Haas, said product, material or equipment did not contain asbestos. TWENTY-FIFTH AFFIRMATIVE DEFENSE Rohm & Haas did not specify, recommend, direct, or require the use of asbestos or asbestos-containing products, materials, or equipment. TWENTY-SIXTH AFFIRMATIVE DEFENSE Rohm & Haas denies that Plaintiffs had any exposure to any asbestos or asbestoscontaining product, material, or equipment mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce by Rohm & Haas and, more particularly, denies upon information and belief that Rohm & Haas mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce any asbestos or asbestos-containing product, material, or equipment at the times and upon the dates alleged by Plaintiffs. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Rohm & Haas specifically denies that the asbestos or asbestos-containing products, material, or equipment to which Plaintiffs allege exposure are products within the meaning and scope of the Restatement of Torts 402A, and as such, the Complaint fails to state a cause of action in strict liability of 33

14 TWENTY-EIGHTH AFFIRMATIVE DEFENSE In the event Plaintiffs should prove exposure to any Rohm & Haas product, material, or equipment, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Rohm & Haas product, material, or equipment caused any alleged injury. TWENTY-NINTH AFFIRMATIVE DEFENSE In the event Plaintiffs should prove exposure at any location for which Rohm & Haas is claimed to be legally liable, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Rohm & Haas product, material, or equipment caused any alleged injury. THIRTIETH AFFIRMATIVE DEFENSE Contact with or use by Plaintiffs of any asbestos or asbestos-containing products, materials, or equipment supplied, sold, or manufactured by Rohm & Haas was not a substantial contributing cause of any alleged injury. THIRTY-FIRST AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek recovery for injuries allegedly suffered at a location for which Rohm & Haas is claimed to be legally liable at a time when Rohm & Haas had no legal relationship to that location, Rohm & Haas cannot be held liable for the alleged injuries. THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs claims against Rohm & Haas must be dismissed because Rohm & Haas did not own, lease, occupy, possess, supervise, manage, and/or control the area at or near the location where Plaintiffs were allegedly injured of 33

15 THIRTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs claims against Rohm & Haas must be dismissed because Rohm & Haas did not supervise, control, manage, and/or direct Plaintiffs, Plaintiffs employer, Plaintiffs coworkers, and/or any person or persons in the area at or near the location where Plaintiffs were allegedly injured. THIRTY-FOURTH AFFIRMATIVE DEFENSE The conditions at and around the location at which Plaintiffs were allegedly injured constituted open and obvious hazards against which Rohm & Haas had no duty to warn. THIRTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek recovery for injuries allegedly suffered at a location for which Rohm & Haas is claimed to be legally liable, Plaintiffs claims against Rohm & Haas must be dismissed because Rohm & Haas did not specify, purchase, or supply any asbestos-containing products, materials, or equipment used or handled by Plaintiffs, Plaintiffs employer, Plaintiffs co-workers, and/or any person or persons in the area at or near the location of Plaintiffs alleged injury. THIRTY-SIXTH AFFIRMATIVE DEFENSE The conditions at and around the location at which Plaintiffs were allegedly injured constituted open and obvious hazards that Plaintiffs were obligated to avoid and/or required to take reasonable and appropriate precautions so as to avoid injury of 33

16 THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred or limited by the doctrines of contributory negligence and comparative fault. THIRTY-EIGHTH AFFIRMATIVE DEFENSE The alleged injuries were caused directly, solely, and proximately by sensitivities, idiosyncrasies, and/or other reactions peculiar to Plaintiffs alone and not found in the general public. damages. THIRTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs significant pre-existing medical conditions caused the alleged injuries and/or FORTIETH AFFIRMATIVE DEFENSE Rohm & Haas did not have a duty to warn Plaintiffs. FORTY-FIRST AFFIRMATIVE DEFENSE All claims are barred or diminished because of Plaintiffs failure to preserve evidence. FORTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs were contributorily negligent in: a. Working with materials they knew or should have known to be hazardous to their health, without use of available protective devices, and without taking reasonable precautions to guard against damages resulting from work with such materials; b. Failing to seek medical treatment and advice, and/or continuing to smoke, after the first manifestation of their alleged asbestos illness; of 33

17 c. Using, in whole or in part, of other substances, products, medications, and drugs; and/or d. As further discovery may reveal. FORTY-THIRD AFFIRMATIVE DEFENSE If Plaintiffs used tobacco products, their use was a failure to exercise ordinary care for their own safety and the sole or primary cause of his injuries. The negligence of Plaintiffs in using tobacco products or the negligence of third parties engaged in the sale, manufacture, distribution, or use of tobacco products is a partial or complete bar to all claims asserted in Plaintiffs complaint. FORTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs misused asbestos and/or asbestos-containing products, materials, and/or equipment, which misuse proximately caused and/or contributed to the alleged injuries and damages of which they complain. FORTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs were warned of the risk of exposure to asbestos and asbestos-containing products, materials, and equipment. FORTY-SIXTH AFFIRMATIVE DEFENSE The alleged incident, injuries, and damages of which Plaintiffs complain were caused by unauthorized, unintended, and/or improper use of asbestos, asbestos-containing products, materials, and/or equipment complained of, and as a result of the failure to exercise reasonable care, caution, or vigilance for which Rohm & Haas is not legally liable or responsible of 33

18 FORTY-SEVENTH AFFIRMATIVE DEFENSE The conditions precedent to the maintenance of a wrongful death claim have not been met. FORTY-EIGHTH AFFIRMATIVE DEFENSE Any amount of damages recoverable based upon the claims and causes of action in the Complaint must be diminished by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused the damages. FORTY-NINTH AFFIRMATIVE DEFENSE Each and every cause of action in the Complaint is barred or limited by reason of the culpable conduct attributable to Plaintiffs, including contributory negligence and assumption of the risk. damages. FIFTIETH AFFIRMATIVE DEFENSE Plaintiffs failed to mitigate or otherwise act to lessen or reduce the alleged injuries and FIFTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs, their coworkers, and/or their employers misused, abused, mistreated, misapplied, and/or substantially modified the product, material, and/or equipment to which Plaintiffs allege exposure. FIFTY-SECOND AFFIRMATIVE DEFENSE If the Court finds that any misuse, abuse, mistreatment, misapplication, and/or substantial modification of the product, material, or equipment caused and/or contributed to the alleged of 33

19 damages or injuries, Rohm & Haas requests that the amount of damages that might be recoverable be diminished by the proportion that the same misuse, abuse, mistreatment, misapplication, and/or substantial modification attributed to Plaintiffs, their coworkers, and/or their employers bear to the conduct that caused the alleged injuries or damages. FIFTY-THIRD AFFIRMATIVE DEFENSE Each and every cause of action in the Complaint is barred in whole or in part by the negligence and conduct of Plaintiffs employers. defense. FIFTY-FOURTH AFFIRMATIVE DEFENSE Rohm & Haas asserts the change of the product, material, or equipment s condition as a FIFTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs failed to exercise ordinary care for their own safety, and that failure is a partial or complete bar to all claims asserted in the Complaint. FIFTY-SIXTH AFFIRMATIVE DEFENSE If Plaintiffs should prove that injuries and damages were sustained as alleged, such injuries and damages resulted from acts or omissions on the part of third parties over whom Rohm & Haas had no control or right of control. FIFTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred to the extent they are based on exposure, if any, of Plaintiffs to materials or raw materials sold or supplied by Rohm & Haas as a bulk supplier or a component supplier of 33

20 FIFTY-EIGHTH AFFIRMATIVE DEFENSE While Rohm & Haas denies Plaintiffs allegations as to negligence, statutory liability, strict liability, premises liability, injury, and damages to the extent that Plaintiffs may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third parties over whom Rohm & Haas had neither control nor right of control. FIFTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs employer s failure to provide the proper equipment to ensure a safe working environment was a proximate cause of the alleged injuries. SIXTIETH AFFIRMATIVE DEFENSE Rohm & Haas at all times relevant hereto complied with all applicable federal, state, and other regulations, and acted reasonably in all of its activities. SIXTY-FIRST AFFIRMATIVE DEFENSE Rohm & Haas is immune from liability for any conduct performed in conformity with United States government specifications and/or contracts. SIXTY-SECOND AFFIRMATIVE DEFENSE To the extent that Rohm & Haas might be held vicariously liable for the actions or inactions of the Federal Occupational Safety and Health Administration ( OSHA ), the Federal Environmental Protection Agency ( EPA ), and/or other federal, state, and city agencies and employees for which those agencies or employees are immune from liability under federal and/or state common law and/or under federal and/or state statute, Rohm & Haas is likewise immune of 33

21 from liability for those actions or inactions pursuant to the federal and/or state common law and/or federal and/or state statute. SIXTY-THIRD AFFIRMATIVE DEFENSE Rohm & Haas is immune from liability for any conduct performed in conformity with the specifications mandated by Plaintiffs employer. SIXTY-FOURTH AFFIRMATIVE DEFENSE This action is barred by the doctrines of sophisticated purchaser/employer, sophisticated/learned intermediary, and/or sophisticated user. SIXTY-FIFTH AFFIRMATIVE DEFENSE Rohm & Haas owed no legal duty to Plaintiffs. SIXTY-SIXTH AFFIRMATIVE DEFENSE At all times relevant hereto the knowledge of other persons, business entities, and/or governmental entities, and the ability of such other persons, business entities, and/or governmental entities to take actions to prevent the alleged injuries and damages, was superior to that of Rohm & Haas and, therefore, if there was a duty to warn Plaintiffs, then the duty was on those other persons, business entities, and/or governmental entities, and not on Rohm & Haas. SIXTY-SEVENTH AFFIRMATIVE DEFENSE The failure of the purchasers/employers to warn and/or safeguard Plaintiffs from any possible health hazards associated with asbestos was an intervening and/or superseding cause of the alleged injuries of 33

22 SIXTY-EIGHTH AFFIRMATIVE DEFENSE At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Rohm & Haas used proper methods in designing, testing, and manufacturing its products, materials, and equipment in conformity with the federal and state regulations, standards, specifications, and laws in effect; the available knowledge and research of the scientific and industrial communities; the generally recognized and prevailing industry standards; and the state of the art in existence at the time the design was prepared and the products, materials, and/or equipment manufactured and tested. SIXTY-NINTH AFFIRMATIVE DEFENSE At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Rohm & Haas acted in conformity to the available knowledge and research of the scientific and industrial communities. SEVENTIETH AFFIRMATIVE DEFENSE Rohm & Haas had no knowledge of the dangerous propensities, if any, of the products, materials, and/or equipment that allegedly caused injuries to Plaintiffs. SEVENTY-FIRST AFFIRMATIVE DEFENSE At all times relevant hereto, the state of the medical, industrial, and scientific arts was that there was no generally accepted or recognized knowledge of any unsafe, inherently dangerous, hazardous, or defective character or nature of asbestos or asbestos-containing products, materials, and/or equipment when used in the manner and for the purposes intended, so that there was no duty by Rohm & Haas to know of such character or nature or to warn Plaintiffs or others similarly of 33

23 situated, and that, to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. SEVENTY-SECOND AFFIRMATIVE DEFENSE This action cannot be maintained on substantive or jurisdictional statutes or legal theories which did not exist prior to the date on which Plaintiffs allegedly used Rohm & Haas s products, materials, and/or equipment, in that such statutes are inapplicable to this action, and in that the application of such legal theories to this action would be unconstitutionally retroactive. SEVENTY-THIRD AFFIRMATIVE DEFENSE Rohm & Haas is not a joint tortfeasor with any other defendant herein, and accordingly, Rohm & Haas may not be jointly and severally liable with other defendants. SEVENTY-FOURTH AFFIRMATIVE DEFENSE Any oral warranties upon which Plaintiffs allegedly relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. SEVENTY-FIFTH AFFIRMATIVE DEFENSE Rohm & Haas denies the existence of any express warranty, implied warranty, privity, and/or breach of warranty. SEVENTY-SIXTH AFFIRMATIVE DEFENSE As to all the causes of action in the Complaint which may be based upon express or implied warranties and/or representations, such causes of action are legally insufficient as against Rohm & Haas by reason of their failure to allege privity of contract between Plaintiffs and Rohm & Haas of 33

24 SEVENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs did not directly or indirectly purchase any asbestos or asbestos-containing products, materials, and/or equipment from Rohm & Haas, and Plaintiffs neither received nor relied upon any warranty or representation that may be alleged to have been made by Rohm & Haas. SEVENTY-EIGHTH AFFIRMATIVE DEFENSE In the event that any breach of warranty is proven, Plaintiffs failed to give proper and prompt notice of any such breach of warranty to Rohm & Haas. SEVENTY-NINTH AFFIRMATIVE DEFENSE To the extent that the causes of action fail to accord with the Uniform Commercial Code, including but not limited to Section thereof, they are time-barred. recoverable. N EIGHTIETH AFFIRMATIVE DEFENSE Plaintiffs speculative, uncertain, and/or contingent damages have not accrued and are not N EIGHTY-FIRST AFFIRMATIVE DEFENSE To the extent the Complaint asserts market share liability or enterprise liability, the Complaint fails to state facts to constitute a cause of action against Rohm & Haas. N EIGHTY-SECOND AFFIRMATIVE DEFENSE Rohm & Haas is not and was not a manufacturer, seller, or supplier within the meaning of the doctrine of strict liability in tort or contract of 33

25 N EIGHTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs causes of action for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. N EIGHTY-FOURTH AFFIRMATIVE DEFENSE The Complaint fails to specify any willful or wanton conduct on the part of Rohm & Haas; therefore, all claims referring to the recovery of punitive damages in the Complaint must be stricken. N EIGHTY-FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek punitive damages against Rohm & Haas, these damages are improper, unwarranted, not authorized by law, unconstitutional in the context of this litigation, and not recoverable. Subjecting a defendant to multiple trials and the multiple impositions of punitive damages for the same course of conduct is a violation of both substantive and procedural due process under the United States Constitution, the Constitution of the State of New York, and/or the applicable laws of any relevant jurisdiction and venue. Further, the manner in which punitive damages are awarded in cases such as this is in violation of constitutional due process as there is no principle of limitation on the multiple impositions of punitive damages for a single course of conduct. Thus, the standard governing the award of punitive damages is constitutionally void for vagueness. are barred by: N EIGHTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs seek punitive damages against Rohm & Haas, these damages of 33

26 e. The Due Process Clause of the Fourteenth Amendment to the United States Constitution; f. The proscription of the Eighth Amendment to the United States Constitution through the Fourteenth Amendment prohibiting the imposition of excessive fines; g. The double jeopardy clause of the Fifth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment; and h. The Constitution of the United States and the Constitution of the State of New York. N EIGHTY-SEVENTH AFFIRMATIVE DEFENSE The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Rohm & Haas s alleged conduct, and thus violates the United States Constitution, including the Excessive Fines Clause of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and the Fourth, Fifth, and Sixth Amendments. N EIGHTY-EIGHTH AFFIRMATIVE DEFENSE The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Rohm & Haas s alleged conduct, and thus violates the New York State Constitution, including the Due Process Clause of Article I, Section 6, and/or the applicable laws of any relevant jurisdiction and venue. EIGHTY-NINTH AFFIRMATIVE DEFENSE Any award of punitive damages based upon vague and undefined standards of liability, or based upon any standard of proof less than clear and convincing evidence, would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the Due Process Clause of the New York State Constitution, and/or the applicable laws of any relevant jurisdiction and venue of 33

27 NINETIETH AFFIRMATIVE DEFENSE If the Court should award damages to Plaintiffs, Rohm & Haas requests that the amount of damages that might be recoverable be diminished based upon the culpable conduct attributable to Plaintiffs pursuant to pursuant to N.Y. C.P.L.R and/or the applicable laws of any relevant jurisdiction and venue. NINETY-FIRST AFFIRMATIVE DEFENSE Rohm & Haas specifically incorporates by reference any and all standards and limitations regarding the determination and/or enforceability of punitive damage awards specified in decisions of the United States Supreme Court, including, but not limited to, Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). NINETY-SECOND AFFIRMATIVE DEFENSE If the Court should award damages to Plaintiffs, Rohm & Haas requests that the amount of damages that might be recoverable be diminished based upon any and all collateral sources of payment available to Plaintiffs pursuant to N.Y. C.P.L.R and/or the applicable laws of any relevant jurisdiction and venue. NINETY-THIRD AFFIRMATIVE DEFENSE In the event of a finding of liability of Rohm & Haas, Rohm & Haas s liability to Plaintiffs shall not exceed Rohm & Haas s equitable share determined in accordance with the relative culpability of each person or business entity, including bankrupt entities, causing or contributing of 33

28 to the total liability pursuant to Article 16 of the New York Civil Practice Law and Rules and/or the applicable laws of any relevant jurisdiction and venue. NINETY-FOURTH AFFIRMATIVE DEFENSE In accordance with Section of the New York General Obligations Law and/or the applicable laws of any relevant jurisdiction and venue, to the extent that Plaintiffs have given an alleged tortfeasor other than Rohm & Haas a release or covenant not to sue or not to enforce a judgment, any award of damages must be reduced by the amount stipulated by the release or covenant, or in the amount of the consideration paid for it or in the amount of the released tortfeasor s equitable share of the damages, whichever is greater. NINETY-FIFTH AFFIRMATIVE DEFENSE Rohm & Haas is entitled to a set-off or credit in the amount of any settlement or compromise heretofore or hereafter reached by Plaintiffs with any person or entity for any of Plaintiffs alleged damages. NINETY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs alleged injuries were caused, in whole or in part, by the general condition, quality, and content of the air and/or environment in the various places Plaintiffs have lived and worked. of nature. NINETY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs alleged injuries were caused, in whole or in part, by and through the operation of 33

29 NINETY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs alleged injuries were not caused or contributed to by Plaintiffs exposure to asbestos, but rather by Plaintiffs exposure to dangerous or hazardous chemicals, fumes, products, substances, and/or dust produced by products, materials, and/or equipment, for which Rohm & Haas is not legally liable, which were present at Plaintiffs workplace or elsewhere. NINETY-NINTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs are unable to identify the product(s) that allegedly caused injury, the relief sought by Plaintiffs contravenes Rohm & Haas s rights to protection against taking of property for public use without just compensation, rights to substantive and procedural due process of law, and equal protection of the laws under the applicable provisions of the Constitution of the United States Constitution and of the State of New York. ONE HUNDREDTH AFFIRMATIVE DEFENSE The presence of asbestos or asbestos-containing products, materials, and/or equipment allegedly manufactured or supplied by Rohm & Haas and relevant in this action, if any, was the result of complying with specifications or requirements of Plaintiffs employers, and/or the United States Government, and/or the State of New York, and/or other federal or state entities. ONE HUNDRED AND FIRST AFFIRMATIVE DEFENSE The products, materials, or equipment allegedly manufactured or supplied by Rohm & Haas and relevant in this action, if any, did not have any defects, including any alleged manufacturing defects, design defects, or inadequate warnings of 33

30 ONE HUNDRED AND SECOND AFFIRMATIVE DEFENSE Federal law pre-empts, in whole or in part, the state law claims alleged in the Complaint. ONE HUNDRED AND THIRD AFFIRMATIVE DEFENSE Rohm & Haas reserves the right to move to sever the various allegations in the Complaint. ONE HUNDRED AND FOURTH AFFIRMATIVE DEFENSE Rohm & Haas reserves the right to respond and assert defenses as to causes of action that have been dismissed should they be reinstated through subsequent appeal. ONE HUNDRED AND FIFTH AFFIRMATIVE DEFENSE All defenses that have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth herein as defenses to the Complaint. Additionally, Rohm & Haas will rely upon any and all further defenses that become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend this answer for the purpose of asserting any such additional defenses. AS AND FOR CROSS-CLAIMS AGAINST CO-DEFENDANTS 1. If Plaintiffs sustained injuries and/or damages through any carelessness, recklessness, and/or negligence other than that of Plaintiffs themselves, including, but not limited to, the manufacture and distribution of the asbestos and/or asbestos-containing product, material, and/or equipment, breach of warranty or misrepresentations, either express or implied, and in strict liability in tort, these damages will have been caused and brought about by reason of the carelessness, recklessness, and/or negligence of co-defendants and/or third-party defendants, or of 33

31 hereafter named herein, with indemnification and/or contribution to Rohm & Haas as implied-infact or implied-in-law. 2. If Rohm & Haas is found liable as to Plaintiffs and/or any third-party Plaintiff for the injuries and damages set forth in the Complaint and/or any third-party complaints, the said codefendants and third-party defendants will be liable jointly and severally to Rohm & Haas and will be bound to fully indemnify and hold that Rohm & Haas is entitled to contribution, in whole or in part, from each of the co-defendants and third-party defendants now or hereafter named herein, together with the costs and disbursements incurred in the defense of this action. 3. If Plaintiffs should recover a judgment against Rohm & Haas, by operation of law or otherwise, Rohm & Haas will be entitled to judgment, contribution, and/or indemnity over and against the co-defendants, their agents, their servants, and/or their employees, by reason of their carelessness, recklessness, and/or negligence for the amount of any such recovery, or a portion thereof, in accordance with principles of law regarding apportionment of fault and damages, along with costs, disbursements, and reasonable expenses of the investigation and defense of this action, including reasonable attorneys fees. 4. All cross-claims that have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth herein. Additionally, Rohm & Haas will rely upon any and all further cross-claims that become available or appear during discovery proceedings in this action and hereby specifically reserves the right to amend this answer for the purpose of asserting any such additional cross-claims. FFIRMATIVE DEFENSES TO CROSS-CLAIMS BY CO-DEFENDANTS Rohm & Haas denies all material allegations contained in all co-defendants cross-claims, and Rohm & Haas does not waive any defenses to any cross-claims. Rohm & Haas repeats and of 33

32 reasserts the affirmative defenses raised above and incorporates each herein as affirmative defenses to any cross-claims asserted against Rohm & Haas. WHEREFORE, Rohm & Haas demands judgment dismissing the Complaint, or in the alternative, demands judgment over and against the co-defendants and third-party Defendants now and hereafter named on the basis of indemnification or contribution for all or part of any verdict or judgment, together with its costs and disbursements, and such other and further relief as this Court deems appropriate. Dated: June 30, 2016 New York, New York s/karen Cullinane By: Jonathan Kromberg Karen Cullinane DARGER ERRANTE YAVITZ & BLAU LLP 116 East 27th Street, 12th Floor New York, New York P: Counsel for Defendant Rohm & Haas Co of 33

33 STATE OF NEW YORK ) : ss. COUNTY OF NEW YORK ) VERIFICATION The undersigned attorney admitted to practice in the Court of New York State, shows: The deponent is a member of the firm of Darger Errante Yavitz & Blau LLP, counsel for Defendant Rohm and Haas Co. in the within action. The deponent has read the foregoing Answer to Complaint, Affirmative Defenses, Answer to Cross-Claims, and Cross-Claims of Rohm and Haas Co., and knows the contents thereof, and that the same is true to the deponent s own knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters the deponent believes them to be true. The deponent further states that the reason that this verification is made by the deponent and not by the Defendant is because the Defendant is a foreign corporation. The grounds of the deponent s belief as to all matters not stated upon the deponent s knowledge are as follows: records, reports, and correspondence in the deponent s files. The undersigned affirms, under penalties of perjury, that the foregoing statements are true. Dated: June 30, 2016 New York, New York /s/ KAREN CULLINANE, ESQ. 33 of 33