FILED: ONONDAGA COUNTY CLERK 02/06/ :31 PM

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA x JAMES H. DICKSON and JUDITH A. DICKSON, -against- Plaintiffs, AIR & LIQUID SYSTEMS CORPORATION successor by merger to Buffalo Pumps, Inc.; BORGWARNER MORSE TEC LLC, as successorby-merger to Borg-Warner Corporation; CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation f/k/a Westinghouse Electric Corporation and the B.F. Sturtevant Co.; CLARK RELIANCE CORPORATION, Individually and as successor in interest to Jerguson Gage and Valve Company; CRANE CO.; CROWN, CORK & SEAL COMPANY, INC.; DANA COMPANIES, LLC; FMC CORPORATION, Individually and as successor in interest to Northern Pumps; FORD MOTOR COMPANY; FOSTER WHEELER ENERGY CORP.; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; HONEYWELL INTERNATIONAL, INC., Individually and as successor to Alliedsignal, Inc. and The Bendix Corporation; IMO INDUSTRIES, INC.; INGERSOLL-RAND COMPANY; KING S AUTO SUPPLY, LLC f/k/a KING S AUTO SUPPLY INC.; METROPOLITAN LIFE INSURANCE COMPANY; R.J. REYNOLDS TOBACCO COMPANY, as successor-by-merger to LORILLARD TOBACCO COMPANY SCHUTTE & KOERTING ACQUISITION COMPANY; TRANE US, INC.; UNION CARBIDE CORPORATION; WARREN PUMPS, LLC; Index No. SUMMONS Plaintiff designates Onandaga County as the place of trial. The basis of Venue: Defendant s place of business Plaintiffs reside at 1344 Isle of Sky Court Dunedin, FL of 28

2 WEIR VALVE & CONTROLS USA, INC. as successor in interest to Atwood & Morrill Valve Company; Defendants x To the above named Defendants: YOU ARE HEREBY SUMMONED, to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons to serve a Notice of Appearance, on the Plaintiffs Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Date: February 6, 2017 Defendants addresses: See attached rider MAUNE RAICHLE HARTLEY FRENCH & MUDD, LLC By: NATHANIEL N. FALDA 8 W. 38 th Street, Suite 1001 New York, NY Phone: (800) Fax: (212) Attorneys for Plaintiffs 2 of 28

3 SERVICE RIDER AIR & LIQUID SYSTEMS CORPORATION successor by merger to Buffalo Pumps, Inc. c/o CT Corporation System 116 Pine Street, Suite 320 Harrisburg, PA BORGWARNER MORSE TEC LLC, as successor-by-merger to Borg-Warner Corporation The Corporation Company Telegraph Road, Suite 2345 Bingham Farms, MI CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation f/k/a Westinghouse Electric Corporation and the B.F. Sturtevant Co. Corporation Service Company 80 State Street Albany, NY CLARK RELIANCE CORPORATION, Individually and as successor in interest to Jerguson Gage and Valve Company CRANE CO c/o CT Corporation System 111 Eighth Avenue New York, NY CROWN, CORK & SEAL COMPANY, INC. One Crown Way Philadelphia, PA DANA COMPANIES, LLC CT Corporation System 1300 East Ninth Street, Suite 1010 Cleveland, OH FMC CORPORATION, Individually and as successor in interest to Northern Pumps c/o CT Corporation System 111 Eighth Avenue New York, NY FOSTER WHEELER ENERGY CORP. c/o CT Corporation System 111 Eighth Avenue New York, NY FORD MOTOR COMPANY c/o CT Corporation System 111 Eighth Avenue New York, NY GARDNER DENVER, INC. c/o CT Corporation System 111 Eighth Avenue New York, NY GENERAL ELECTRIC COMPANY 41 Farnsworth Street Boston, MA, HONEYWELL INTERNATIONAL, INC., Individually and as successor to Alliedsignal, Inc. and The Bendix Corporation c/o Corporation Service Company 80 State Street Albany, New York, IMO INDUSTRIES, INC. c/o CT Corporation System 111 Eighth Avenue New York, NY INGERSOLL-RAND COMPANY Corporation Service Company 80 State Street Albany, NY of 28

4 KING S AUTO SUPPLY, LLC f/k/a KING S AUTO SUPPLY INC. 264 Clark Street Auburn, New York METROPOLITAN LIFE INSURANCE COMPANY R.J. REYNOLDS TOBACCO COMPANY, as successor-by-merger to LORILLARD TOBACCO COMPANY Corporation Service Company 80 State Street Albany, NY SCHUTTE & KOERTING ACQUISITION COMPANY Agent/Officer 2510 Metropolitan Drive Trevose, PA TRANE U.S., INC.; Corporation Service Company 80 State Street Albany, NY UNION CARBIDE CORPORATION c/o CT Corporation System 111 Eighth Avenue New York, NY WARREN PUMPS, LLC c/o CT Corporation System 155 Federal Street Boston, MA of 28

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA x JAMES H. DICKSON and JUDITH A. DICKSON, -against- Plaintiffs, Index No. AIR & LIQUID SYSTEMS CORPORATION successor by merger to Buffalo Pumps, Inc.; et al., VERIFIED COMPLAINT Defendants x COMPLAINT Plaintiffs James H. Dickson and Judith A. Dickson, by way of complaint against Defendants, allege and say: PARTIES PLAINTIFFS 1. Plaintiffs James H. Dickson (hereinafter referred to as James Dickson or Plaintiff ) and Judith A. Dickson (hereinafter referred to as plaintiff and/or spouse ) are husband and wife and reside in the State of Florida, County of Pinellas. 2. Plaintiff James Dickson, in his occupational and non-occupational capacities, worked with and/or in the vicinity of asbestos-containing products and equipment with asbestos containing components. These products and components gave off airborne asbestos fibers, which he inhaled. 3. Beginning in the 1940s and continuing until around 1950, Plaintiff James Dickson regularly and frequently performed vehicular and automotive repairs, maintenance, and replacement work, including brake work, clutch work, and gasket work at an automotive garage in Auburn, New York. He also regularly and frequently swept up dust and debris which were byproducts of that work. During this time period he was also regularly and frequently proximate to and in the immediate vicinity of others performing the same work with the same products. This 5 of 28

6 work generated visible dust. In the course of performing this work, and in the course of being proximate to and in the immediate vicinity of others performing the same work, Plaintiff James Dickson worked with, was exposed to, and breathed in asbestos, asbestos dust, and/or asbestos fibers from brakes, brake linings, and other brake components, clutches, clutch facings, and other clutch components, gaskets of various kinds, and possibly other asbestos-containing products and materials. These products were sold, distributed, and supplied by various automotive parts suppliers located in or near Auburn, New York. During this time period Plaintiff James Dickson may have also been exposed to and breathed in asbestos and dust from these products through take-home exposure from family members. These exposures in turn caused and/or contributed to Plaintiff James Dickson s malignant mesothelioma. 4. Beginning in or around 1952 and continuing for several years until approximately 1957, both while serving in the United States Air Force, including at Montauk Point in Long Island, New York, and for several years thereafter, Plaintiff James Dickson regularly and frequently smoked filtered cigarettes manufactured and distributed by Kent. Upon information and belief, during that time period these Kent cigarettes contained asbestos whose dust and fibers Plaintiff James Dickson regularly and frequently breathed in. These exposures in turn caused and/or contributed to Plaintiff James Dickson s malignant mesothelioma. 5. Plaintiff James Dickson served in the United States Navy in the 1960s, including aboard the U.S.S. McNair. He was also stationed in Philadelphia, PA and New Orleans, LA. While serving in the United States Navy, Plaintiff James Dickson may have been exposed to asbestos, whether directly or as a bystander. To the extent that he was exposed to asbestos while in the Navy, then it is alleged that these exposures in turn caused and/or contributed to Plaintiff James Dickson s malignant mesothelioma. 6. Plaintiff James Dickson s exposures to asbestos occurred entirely before of 28

7 7. As a result of his exposures to Defendants asbestos and asbestos products, Plaintiff James Dickson contracted malignant mesothelioma, with which he was diagnosed on or about November 15, Plaintiff continues to suffer from said asbestos disease. PARTIES - DEFENDANTS 8. Each of the Defendants named in the caption above has conducted business in the State of New York and has produced, manufactured, specified, supplied, installed or distributed asbestos and/or asbestos products with the reasonable expectation that such products would be used or consumed in this state, which products were so used or consumed, and/or has committed the tortious acts set forth below in this state. 9. Each of the Defendants named in the caption above has manufactured, specified, supplied, sold, distributed and/or installed asbestos and asbestos-containing products to which Plaintiff James Dickson was exposed, or manufactured, sold and/or installed equipment which had asbestos components or specified such components for operation to which the Plaintiff was exposed. 10. If it is deemed that Article 16 of the CPLR applies to this action, then the Plaintiff asserts that this action falls within one or more of the exceptions set forth in CPLR 1602, including, but not limited to, that for cases where a person is found liable for causing a claimant's injury by having unlawfully released into the environment a substance hazardous to public health, safety or the environment; and that for parties found to have acted knowingly or intentionally and in concert to cause the acts or omissions upon which liability is based. 11. Defendants, HONEYWELL INTERNATIONAL INC., formerly known as Allied Signal, Inc., as successor in interest to the Bendix Corporation; R.J. REYNOLDS TOBACCO COMPANY, as successor-by-merger to LORILLARD TOBACCO COMPANY; THE FORD MOTOR COMPANY, KING S AUTO SUPPLY, LLC f/k/a KING S AUTO SUPPLY INC.; 3 7 of 28

8 UNION CARBIDE CORPORATION and its Linde Division; AIR & LIQUID SYSTEMS CORPORATION successor by merger to Buffalo Pumps, Inc.; CROWN, CORK & SEAL COMPANY, INC.; CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation f/k/a Westinghouse Electric Corporation and the B.F. Sturtevant Co.; CRANE CO.; FOSTER WHEELER ENERGY CORP.; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; IMO INDUSTRIES, INC.; INGERSOLL-RAND COMPANY; TRANE US, INC.; WARREN PUMPS, LLC, were manufacturers, suppliers, or distributors of asbestos fibers, dust, minerals, particles, and other finished and unfinished asbestos rpoducts that Plaintiff used or to which he was exposed. 12. Defendants, AIR & LIQUID SYSTEMS CORPORATION successor by merger to Buffalo Pumps, Inc.; CROWN, CORK & SEAL COMPANY, INC.; CBS CORPORATION, a Delaware Corporation f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation f/k/a Westinghouse Electric Corporation and the B.F. Sturtevant Co.; CRANE CO.; FOSTER WHEELER ENERGY CORP.; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; IMO INDUSTRIES, INC.; INGERSOLL-RAND COMPANY; TRANE US, INC.; WARREN PUMPS, LLC, are Naval product and equipment manufacturers and contractors ( Military Defendants ). Military Defendants are only sued under State law duty to warn theories and are not being sued under any other theory. No other defendant named in this matter is sued as a naval products and/or equipment Defendant. If the Military Defendants or any other named Defendant in this matter happen to have supplied to, or installed equipment for, the Navy for use on any of the listed vessels, Plaintiffs expressly disclaims and are not seeking relief for any and all claims for injury against any such Defendant whose conduct, whether by omission or commission, was engaged in at the behest of the United States or any agency or person acting under him or under color of such office to the extent that such a claim would implicate federal 4 8 of 28

9 court jurisdiction under the federal officer removal statute, 28 U.S.C. 1442(a)(1), predicated on the government contractor s defense articulated in Boyle v. United Technologies Corp., 487 U.S. 500 (1998). More specifically, with respect to Plaintiffs state law failure to warn claims, Plaintiffs allege that no U.S. Agency, officer, or person prohibited or forbid any Defendant in this case from issuing and placing warnings on or with its products. Such a showing is mandatory for any defendant to meet the Boyle test. All such claims that legitimately implicate such a defense, in the unlikely event that they exist and are factually supported, are NOT asserted and are hereby expressly and preemptively disclaimed. Plaintiffs hereby put any Defendant who may nonetheless assert such a defense as a basis for federal jurisdiction over this case on notice that Plaintiffs seek no recovery for injuries as a result of conduct that meets the three-prong Boyle test and constitutes actions of a federal officer sufficient to trigger jurisdiction under 28 U.S.C. 1442(a)(1). Plaintiffs specifically advise all Defendants of their position that such an express, clear and unequivocal disclaiming of exposures and of claims implicating the Boyle defense, as well as any other claims that legitimately implicate 28 U.S.C. 1442(a)(1), render any potential future removal of this case to federal court on one of these clearly-disclaimed bases objectively unreasonable under Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). 13. Defendant METROPOLITAN LIFE INSURANCE COMPANY is a corporation incorporated under the laws of the State of New York, having its principal place of business located in New York, New York. 14. Upon information and belief, the named Defendants manufactured, designed, sold, supplied, distributed, relabeled, commingled, applied and/or installed those asbestos-containing products and/or equipment with asbestos-containing components to which the Plaintiff was exposed. 5 9 of 28

10 15. Plaintiff s exposure to and inhalation, ingestion or absorption of asbestos fibers emanating from the use of the above-mentioned products was completely foreseeable and could or should have been anticipated by the Defendants. 16. The Defendants knew or should have known that the asbestos fibers contained in their products and/or the products with which their products were designed to be used had a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting or otherwise absorbing them. 17. Defendants, acting in concert, failed to warn the Plaintiff and those similarly situated, of the known dangers and hazards of using their asbestos and asbestos-containing products. This concert of action was achieved by the Defendants providing substantial assistance and encouragement to one another in their wrongful course of conduct, and/or by expressly or impliedly agreeing not to warn the Plaintiff and others similarly situated, of the hazards of said asbestos-containing products. 18. The inhalation of asbestos fibers is inherently dangerous, in that it proximately causes mesothelioma, lung cancer, asbestosis, pleural scarring and other severe diseases. As a result of Plaintiff James Dickson s exposure to Defendants asbestos and asbestos products, Plaintiff contracted malignant mesothelioma, with which he was diagnosed on or about November 15, Plaintiff continues to suffer from said asbestos disease. FIRST CAUSE OF ACTION FAILURE TO WARN 19. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 18 of the Verified Complaint as if fully set forth herein. 20. The Plaintiff was exposed to various asbestos-containing products of Defendants of 28

11 21. That all times material hereto, Defendants knew or should have known of the harmful effects of exposure to asbestos dust and fibers to human health, including the health of Plaintiff James Dickson. 22. At all times herein relevant, the Defendants had a duty to exercise reasonable care and caution for the safety of Plaintiff and others working with and around the Defendants asbestos-containing products. 23. Moreover, Defendants had a duty to provide adequate warnings of all latent dangers of use of Defendants asbestos-containing products. 24. Plaintiff was exposed to and did inhale, ingest and absorb asbestos dust, fibers, and particles from the asbestos products which were contracted for, mined, milled, processed, manufactured, designed, tested, assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, marketed and/or sold by the Defendants. 25. Upon information and belief, the Defendants, through their agents and employees, mined, processed, manufactured, designed, tested and/or packaged various asbestos-containing products, and supplied, distributed, delivered, marketed and/or sold said asbestos-containing products to Plaintiff or to third persons who, in turn, delivered and sold such products to Plaintiff. 26. Plaintiff was exposed directly and indirectly to asbestos materials and products which he came into contact with asbestos fibers and was exposed to, inhaled, ingested and absorbed those asbestos fibers and particles coming from said asbestos products and materials. 27. The asbestos products contracted for, mined, milled, processed, manufactured, designed, tested, assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, marketed, sold and/or installed by the Defendants reached the Plaintiff without any substantial change in their condition from the time they left the custody and control of the Defendants and were being employed in the manner and for the purposes for which they were intended of 28

12 28. The foregoing asbestos products and equipment with asbestos-containing components were defective in one or more of the following ways: (a) in that they were inherently dangerous to those who used, handled, came in contact with and/or inhaled said products and materials; (b) in that they failed to carry proper, adequate and correct warnings and information concerning the dangers of said products; (c) in that they lacked proper safety precautions to be observed by users, handlers and persons, including the Plaintiff who would reasonably and foreseeably come into contact with the said products and materials; (d) in that they were packaged, bagged, boxed and/or supplied to Plaintiff in packing, bagging, boxes or other containers that were inadequate and/or improper; (e) in that the products were delivered to and reached the Plaintiff without adequate or proper handling instructions, face masks and/or respirators; (f) in that any warnings, information and/or safety instructions said products may have carried were improper and inadequate in that they failed to adequately and reasonably apprise users, handlers and persons coming into contact with the said products and materials, including the Plaintiff, of the full scope and danger to their health of contact with asbestos products and materials, including the risk of cancer; (g) in that the said asbestos products and materials were not of merchantable quality; and (h) in that the said asbestos products and materials were not fit and safe for their known and intended purposes and uses. 29. As a result of Plaintiff s breathing, inhaling and ingesting said asbestos fibers, Plaintiff was caused to sustain permanent life threatening injuries, to wit: mesothelioma. Plaintiff s disease and injuries have and will continue to cause his to suffer pain and suffering, mental anxiety, distress of mind, emotional trauma and mental anguish. 30. Plaintiff s disease(s) and injuries were directly and proximately caused by Plaintiff s exposure to asbestos and asbestos products which were mined, milled, manufactured, designed, assembled, fabricated, supplied, constructed, processed, packaged, distributed, delivered, purchased, sold and/or installed by the Defendants. 31. As a result thereof, Plaintiff's capacity to carry on life's activities and enjoy life has been greatly restricted and Plaintiff s life span will ultimately be shortened of 28

13 32. As a result of said illness, the Plaintiff has also been obligated to incur expenses for medical treatment, x-rays and in the future will be obliged to incur further expenses for such purposes. 33. The Defendants knew or should have known that the asbestos products and materials were inherently dangerous to those who used, handled or came in contact with said products and materials. 34. The Defendants failed to provide proper, adequate and correct warnings and information concerning the dangers of the products and materials to persons using, handling, or coming into contact therewith. 35. The Defendants failed to provide proper, adequate and correct warnings and instruction of safety precautions to be observed by users, handlers and persons, including the Plaintiff who would reasonably and foreseeably come into contact with the said products and materials. 36. Any warnings, information and/or instruction of safety precautions were improper and inadequate in that, among other things, they failed to adequately and reasonably apprise users, handlers and persons coming into contact with the said products and materials, including the Plaintiff, of the full scope and danger to their health posed by exposure to their asbestos products and materials, including the risk of mesothelioma. 37. Defendants have been possessed of medical and scientific data, studies and reports before 1929, which information clearly indicated that asbestos and asbestos-containing products were hazardous to the health and safety of the Plaintiff and other human beings. 38. Defendants, during the 1930's, 1940's, 1950's and 1960's became possessed of voluminous medical and scientific data, studies and reports, which information conclusively established that asbestos and asbestos-containing products were hazardous to the health and safety 9 13 of 28

14 of the Plaintiff and all humans exposed to the products. Defendants were members of organizations like the National Safety Council which widely disseminated information about asbestos disease to its members, beginning in the 1930's. 39. Upon information and belief, Defendants have, since the 1930's, had numerous workers' compensation claims filed against them in this state and many other states by employees or former employees alleging asbestos related pneumoconiosis. 40. The Defendants, since the 1920's, have consistently failed to acknowledge, publish, or in any way advise Plaintiff of studies and reports known throughout the industry, including studies conducted by or on behalf of various Defendants in the asbestos industry. 41. Despite Defendants possession of the foregoing information, the Defendants wrongfully contracted for, mined, milled, processed, manufactured, designed, specified, tested, assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, installed, marketed, and/or sold asbestos products and materials, Plaintiff installed, used and/or applied such products and equipment so as to expose the Plaintiff to asbestos, and said Defendants failed to render proper, adequate and correct warnings, advice, instruction and information and so acted in a grossly negligent, malicious, willful and wanton manner, and failed to use reasonable care under all circumstances, and wrongfully acted in other respects. 42. Defendants had a continuing duty to advise and warn purchasers, consumers, and users, and all prior purchasers, consumers, and users, of all dangers, characteristics, potentialities and/or defects discovered subsequent to their initial marketing or sale of said asbestos and asbestos products. 43. The Defendants breached these duties by: (a) failing to warn the Plaintiff of the dangers, characteristics, and/or potentialities of the product or products when they knew or should have of 28

15 known that the exposure to the product(s) would cause disease and injury; (b) failing to warn the Plaintiff of the dangers to which he was exposed when they knew or should have known of the dangers; (c) failing to exercise reasonable care to warn the Plaintiff of what would be safe, sufficient, and properly protective clothing, equipment, and appliances when working with, near or during exposure to asbestos and asbestos products; (d) in that they were packaged, bagged, boxed, and/or supplied to the Plaintiff in packaging, bagging, boxes or other containers that were inadequate and/or improper; (e) in that the products were delivered to and reached the Plaintiff without adequate or proper handling instructions, face masks and/or respirators; (f) failing to test the asbestos and asbestos products in order to ascertain the extent of dangers involved upon exposure; (g) failing to conduct such research that should have been conducted in the exercise of reasonable care in order to ascertain the dangers involved upon exposure; (h) failing to remove the product or products from the market when the Defendant corporations knew or should have known of the hazards of exposure to asbestos and asbestos products; (i) failing upon discovery of the dangers, hazards, and potentialities of exposure to asbestos to adequately warn and apprise the Plaintiff of the dangers, hazards, and potentialities discovered; and (j) generally using unreasonable, careless, and negligent conduct in the contracting for, mining, milling, processing, manufacturing, designing, testing, assembling, fashioning, fabricating, packaging, supplying, distributing, delivering, marketing, and/or selling of their asbestos and asbestos products. 44. The acts and omissions set forth above constitute misconduct that is intentional, willful, and reckless. 45. As a direct and proximate result of the Defendant's misconduct hereinbefore set forth, the Plaintiff contracted the diseases and injuries set forth herein, to wit, malignant mesothelioma, sustained bodily injury, suffers great pain and suffering, and incurs medical expenses all to his damage in an amount exceeding the jurisdictional limits of all other courts which would otherwise have jurisdiction over this matter. 46. Plaintiffs claim that the intentional and willful conduct complained of above against the Defendants was aimed against the Plaintiff and the public, was grossly unjust and involved of 28

16 high moral culpability for which punitive damages should be assessed in a sum of money to be determined by the trier of fact. SECOND CAUSE OF ACTION NEGLIGENCE 47. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 46 of the Verified Complaint as if fully set forth herein. 48. At all times herein relevant, the Defendants had a duty to exercise reasonable care and caution for the safety of workers, such as James Dickson, whose exposure to asbestos was a foreseeable result of Defendants asbestos-containing products and the use of asbestos by Defendants. 49. Defendants knew or should have known that the asbestos fibers contained in their products had a toxic, poisonous, and highly deleterious effect upon the health of persons inhaling, ingesting or otherwise absorbing them. 50. Defendants were negligent in that they failed to exercise ordinary care and caution for the safety of James Dickson in one or more of the following respects: (a) Included asbestos in their products, and used asbestos even though it was completely foreseeable and could or should have been anticipated that persons such as James Dickson, working with and around them would inhale, ingest or otherwise absorb asbestos; (b) Included asbestos in their products, and used asbestos when the Defendants knew or should have known that said asbestos would have a toxic, poisonous and highly deleterious effect upon the health of persons inhaling, ingesting or otherwise absorbing them; (c) Included asbestos in their products, and used asbestos when adequate substitutes for the asbestos in them were available; (d) Failed to provide any or adequate warnings to persons working with and around their products of the dangers of inhaling, ingesting or otherwise absorbing the asbestos fibers contained in them; (e) Failed to provide any or adequate instructions concerning the safe methods of working with and around the products, including specific instructions on how to avoid inhaling, ingesting or otherwise absorbing the asbestos fibers in them; of 28

17 (f) Failed to conduct tests on the asbestos-containing products manufactured, sold, delivered or installed by the Defendants in order to determine the hazards to which persons such as James Dickson might be exposed while working with or around their products; (g) Failed to require and/or advise workers and persons such as James Dickson of hygiene practices designed to reduce and/or prevent carrying asbestos fibers into the home; and (h) Failed to adequately label, warn, package, market, distribute, install, remove, or use asbestos in a reasonable manner which would minimize or eliminate the escape of asbestos dust fibers, therefore adding to the exposure of James Dickson, and others similarly situated; (i) Failed to take adequate steps to remedy the above failures, including but not limited to (1) failure to recall or require removal of asbestos and asbestos products, coupled with (2) ongoing failure to conduct research as to how to cure or minimize asbestos injuries and how to use, install, or distribute asbestos so as to render it safe, and (3) failure to promptly and safely remove the asbestos now in place; (j) Designed, manufactured and sold equipment, vehicles, machinery, technologies and systems that included asbestos-containing components and required and/or specified the use of asbestos-containing replacement components. 51. As a direct and proximate result of one or more of the foregoing negligent acts and/or omissions on the part of the Defendants, James Dickson was exposed to and inhaled, ingested or otherwise absorbed asbestos fibers causing James Dickson to develop the asbestos disease aforesaid, which has disabled and disfigured him; James Dickson has in the past and will in the future be compelled to expend and become liable for large sums of monies for hospital, medical and other health care services necessary for the treatment of his asbestos-induced disease and conditions; and James Dickson has in the past and will in the future experience great physical pain and mental anguish as a result of his asbestos-induced disease and conditions. James Dickson has and will continue to incur substantial loss of income. 52. Plaintiff claims that as a result of the foregoing, he sustains bodily injury, suffers great pain and suffering and incurs medical expenses, all to his damage in an amount exceeding the jurisdictional limits of all other courts which would otherwise have jurisdiction over this matter of 28

18 53. Plaintiffs claim that the intentional and willful conduct above complained of against the Defendants was aimed against the Plaintiff and the public, was grossly unjust and involved high moral culpability for which punitive damages should be assessed in a sum of money to be determined by the trier of fact. THIRD CAUSE OF ACTION STRICT LIABILITY 54. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 53 of the Verified Complaint as if fully set forth herein. 55. The asbestos-containing products hereinbefore described reached Plaintiff in a condition substantially unchanged from when they left the custody and control of the Defendants, and were used by the Plaintiff and coworkers in the manner intended by the Defendants. 56. Defendants are, therefore, strictly liable to the Plaintiff in accordance with Section 402A of the Restatement (Second) of Torts. 57. Plaintiff claims that as a result of the foregoing, he sustained bodily injury, suffers great pain and suffering, incurs medical expenses, all to his damage in an amount exceeding the jurisdictional limits of all other courts which would otherwise have jurisdiction over this matter. 58. Plaintiffs claim that the intentional and willful conduct above complained of against the Defendants was aimed against the public as well as the Plaintiff; was grossly unjust and involved high moral culpability for which punitive damages should be assessed in a sum of money to be determined by the trier of fact. FOURTH CAUSE OF ACTION LOSS OF CONSORTIUM 59. The Plaintiff, James Dickson, hereby re-alleges and incorporates by reference to paragraphs 1 through 58 as if fully set forth herein of 28

19 60. As a direct and proximate result of the foregoing acts of the Defendants, the Plaintiff Judith A. Dickson, has suffered and will continue to suffer great pain and mental anguish by virtue of her loss of impairment of her husband s services, protection, care and assistance, society, companionship, affection, love, comfort, support, guidance and kindly offices and advice, and other benefits of the marital relationship. 61. Plaintiff claims that as a result of the foregoing, she suffers great pain and suffering, incurs medical expenses, all to her damage in an amount exceeding the jurisdictional limits of all other courts which would otherwise have jurisdiction over this matter. 62. Plaintiffs claim that the intentional and willful conduct above complained of against the Defendants was aimed against the Plaintiff, Plaintiff/spouse and the public, was grossly unjust and involved high moral culpability for which punitive damages should be assessed in a sum of money to be determined by the trier of fact. FIFTH CAUSE OF ACTION FOR PUNITIVE DAMAGES 63. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 62 of the Verified Complaint as if fully set forth herein. 64. The continued mining, production, processing, design, manufacture, marketing, distribution, supply, use, purchase, installation, removal, delivery, and sale by the Defendants of their respective asbestos products under the circumstances and conditions enumerated above, demonstrates the callous, reckless, willful, depraved and wanton indifference to and disregard of the health, safety and welfare of the public at large, and more particularly, James Dickson. 65. Defendants willful, wanton conduct evinces a total, conscious and/or reckless disregard for the life and well-being of James Dickson, as well as for the health, well-being and of 28

20 rights of others who used, were foreseeably exposed to or otherwise came into contact with, asbestos products and materials. 66. As a consequence, an award of punitive damages is required to uphold and vindicate the public welfare. SIXTH CAUSE OF ACTION AGAINST METROPOLITAN LIFE 67. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 66 of the Verified Complaint as if fully set forth herein. 68. In or about the year 1930, and at various times prior and subsequent thereto, up to and including the present time, defendant Metropolitan Life Insurance Company undertook and assumed a duty to provide the asbestos industry, the scientific community and company users of asbestos with information, inspections, instructions, supervision, recommendations, assistance, notices, reports, methods, findings, cautions, warnings, advice, designs, equipment, safeguards, guidance and services to properly, adequately and reasonably provide safe working conditions, all allegedly to preserve and protect the life, health and safety of employees exposed to asbestos, including plaintiffs and their co-workers, and particularly to protect them from the dangerous and defective properties of asbestos, asbestos products and compounds and/or other dangerous substances at or about the workplace. 69. Plaintiffs aver that various employers and their employees, including plaintiffs and scientists and others similarly situated, were dependent upon the undertakings of Metropolitan to preserve and protect the life, health and safety of individuals, including plaintiff, by not assisting the said companies in selling dangerous products. 70. Metropolitan, by its active and passive negligence, failed to exercise the standard of care and skill it was obliged to exercise by reason of its aforesaid undertakings and assumption of 28

21 of duty, thereby causing, creating or permitting dangerous conditions and exposure to dangerous and defective substances; and thereby failing to properly safeguard plaintiff and all others similarly situated. injured. 71. As a result of the aforesaid negligence of the defendant Metropolitan, plaintiff was SEVENTH CAUSE OF ACTION AGAINST METROPOLITAN LIFE 72. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 71 of the Verified Complaint as if fully set forth herein. 73. For a number of years, Metropolitan provided insurance coverage for various manufacturers of asbestos-containing products. Metropolitan. 74. For a number of years, Dr. A.J. Lanza served as assistant medical director of 75. At all times relevant, the activities of Dr. Lanza hereinafter described were undertaken as a servant, agent or employee of Metropolitan. (a) Beginning in approximately 1934, Metropolitan Life Insurance Company and certain asbestos producers and manufacturers including Johns-Manville Corporation and Raybestos Manhattan, through their agents, Vandiver Brown, attorney J.C. Hobart, Sumner Simpson and J. Rohrbach, suggested to Dr. Anthony Lanza, as agent of Metropolitan Life Insurance Company, that Lanza publish a study on asbestos in which Lanza would affirmatively misrepresent material facts about asbestos exposure and concerning the seriousness of the disease processes, asbestosis and related diseases. This was accomplished through intentional deletion of Lanza's feeling of asbestosis as "fatal" and through other selective editing that affirmatively misrepresented asbestos as causing diseases less serious than they really were known to be. As a result, Lanza's study was published in the medical literature in this misleading fashion in This fraudulent misrepresentation and of 28

22 fraudulent nondisclosure was motivated in part by a desire to influence proposed legislation to regulate asbestos exposure and to provide a defense in disputes involving Metropolitan as insurer. (b) In 1936, American Brake Block Corporation, Asbestos Manufacturing Company, Gatke Corporation, Johns- Manville Corporation, Keasbey & Mattison Company, Raybestos-Manhattan, Russell Manufacturing, Union Asbestos and Rubber Company, and United Gypsum Company, entered into an agreement with the Saranac Laboratories. Under this agreement, these companies acquired the power to decide what information Saranac Laboratories could publish about asbestos disease and could also control in what form such publications were to occur. This agreement gave these companies power to affirmatively misrepresent the results of the work at Saranac, and also gave these conspirators power to suppress material facts included in any study. On numerous occasions thereafter, these companies together with Metropolitan, exercised their power to prevent Saranac scientists from disclosing material scientific data, resulting in numerous misstatements of fact being made at scientific meetings. (c) On November 11, 1948, representatives of the following companies met at the headquarters of Johns-Manville Corporation: American Brake Block Division of American Brake and Shoe Foundry, Gatke Corporation, Keasbey & Mattison Company, Raybestos-Manhattan, Inc., Thermoid Company, Union Asbestos and Rubber Company, United States Gypsum Company and Metropolitan. U.S. Gypsum did not send a representative to the meeting, but instead authorized Vandiver Brown of Johns-Manville to represent its interest at the meeting and to take action on its behalf. (d) At this November 11, 1948 meeting, these companies and Metropolitan decided to exert their influence to materially alter and misrepresent material facts about the substance of research previously started by Dr. Leroy Gardner at the Saranac Laboratories. Dr. Gardner's research involved the carcinogenicity of asbestos in mice and also included an evaluation of the health effects of asbestos on humans with a critical review of the then existing standards of dust exposure for asbestos and asbestos products of 28

23 (e) At this meeting, these companies and Metropolitan and subsequently their agent, Dr. Vorwald, intentionally and affirmatively determined that Dr. Gardner's work should be edited to delete material facts about the cancer causing propensity of asbestos and the health effects of asbestos on humans and to delete the critique of the dust standards. This was published, as altered, in the scientific literature. These companies and Metropolitan thereby fraudulently misrepresented the risks of asbestos exposure to the public, in general, scientists, and persons exposed to asbestos such as the plaintiffs. (f) As a direct result of the actions as described above, Dr. Gardner's edited work was published in the Journal of Industrial Hygiene, AMA Archives of Industrial Hygiene and Occupational Health in 1951 in a form that stressed those portions of Dr. Gardner's work that Metropolitan wished stressed, but which omitted references to human asbestosis and cancer, thereby fraudulently and affirmatively misrepresenting the extent of risks. Metropolitan and the companies it joined with affirmatively and deliberately disseminated this misleading publication. (g) Such action constituted a material affirmative misrepresentation of material facts involving Dr. Gardner's work and resulted in creating an appearance that inhalation of asbestos was less of a health problem than Dr. Gardner's unedited work indicated. (h) In 1955, Johns-Manville, for itself and on behalf of Metropolitan, through their agent Kenneth Smith, caused to be published in the AMA Archives of Industrial Health, an article entitled "Pulmonary Disability In Asbestos Workers". This published study materially altered the results of an earlier study in 1949 concerning the same set of workers. This alteration of Dr. Smith's study constituted a fraudulent and material representation about the extent of the risk associated with asbestos inhalation. (i) In 1955, the National Cancer Institute held a meeting at which Johns-Manville, individually and as an agent for Metropolitan and A. Vorwald, as their- agent, affirmatively misrepresented that there were no existing animal studies concerning the relationship between of 28

24 asbestos exposure and cancer, when, in fact, Metropolitan was in secret possession of several studies which demonstrated that positive evidence did exist. (j) Metropolitan approved and ratified and furthered the previous acts of Johns-Manville, Raybestos Manhattan, and A.J. Lanza. 76. The acts of Metropolitan as described above, constitute a fraudulent concealment and/or a fraudulent misrepresentation which proximately caused injury to the plaintiff in the following manner: (a). Metropolitan intended the publication of false and misleading reports and/or the nondisclosure of documented reports of health hazards of asbestos, in order to: (i) (ii) (iii) (iv) Maintain a favorable atmosphere for the continued sale and distribution of asbestos and asbestos-related products; Assist in the continued pecuniary gain through the control and reduction of claims; Influence proposed legislation to regulate asbestos exposure; Provide a defense in lawsuits brought for injury resulting from asbestos disease. (b). (c). Metropolitan intended reliance upon the published reports regarding the safety of asbestos and asbestos-related products. Plaintiffs suffered injury as a direct and proximate result of the acts alleged herein. 77. Metropolitan has, as previously stated, altered, influenced, and created significant portions of medical literature which are false and misleading statements concerning the dangers of asbestos exposure and disease. In so doing, Metropolitan, and its aforesaid agents, provided a body of medical literature which, when relied upon by persons investigating such literature, would have lead to a false impression of the dangers of asbestos exposure of 28

25 78. Additionally, the publication of such literature acted to inhibit the development of the literature and effectively delayed the dissemination of accurate knowledge of the dangers. Metropolitan owed a duty to the plaintiffs, and the public as a whole, when contributing to the medical literature to do so in good faith and with the reasonable care expected of any professional contributing to such literature; Metropolitan's failure to do so is willful and wanton negligence and a separate intentional tort creating a duty to compensate the plaintiffs for injuries sustained as approximate contributing result of the actions of Metropolitan Life Insurance Company. 79. As a direct and proximately result of the fraudulent concealment and/or fraudulent representation by Metropolitan and its agents, the plaintiffs suffered the diseases, injuries and damages set forth in the foregoing paragraphs. EIGHTH CAUSE OF ACTION AIDING AND ABETTING AGAINST METROPOLITAN LIFE 80. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 79 of the Verified Complaint as if fully set forth herein. 81. Defendant, Metropolitan Life Insurance Company, individually and in concert with American Brake Block Corporation, Asbestos Manufacturing Company, Gatke Corporation, Johns-Manville Corporation, Keasbey & Mattison Company, Raybestos-Manhattan, Russell Manufacturing, Union Asbestos and Rubber Company, United Gypsum Company, Thermoid Company and others knowingly agreed and conspired among themselves to engage in a course of conduct that was reasonably likely to result in injury to plaintiff. 82. Defendant, Metropolitan Life Insurance Company, knew or should have known that the perversion of the scientific and medical literature as aforesaid would cause the harmful effects of asbestos exposure and would cause plaintiff injury of 28

26 83. Defendant, Metropolitan Life Insurance Company, gave substantial assistance and/or encouragement to the conspirators and this aided and abetted their sale of asbestos products in a defective and dangerous condition and their reduction and control of claims against them. 84. The actions of Metropolitan Life Insurance Company make it liable to plaintiffs pursuant to Section 876 of the Restatement of Torts (Second) since Metropolitan Life Insurance Company has acted in concert with others to cause harm to the plaintiff. 85. As a direct and proximate result of the actions of defendant, Metropolitan Life Insurance Company, plaintiff suffered and will continue to suffer serious bodily injury; endured and will continue to endure great pain and suffering and mental anguish; incurred and will continue to incur medical expenses; lost earnings and earning capacity; and was otherwise damaged. NINTH CAUSE OF ACTION MISREPRESENTATION AGAINST METROPOLITAN LIFE INSURANCE COMPANY 86. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1 through 85 of the Verified Complaint as if fully set forth herein. 87. The actions of defendant Metropolitan Life Insurance Company as described above constituted conscious misrepresentation involving risk of physical harm and/or negligent misrepresentation involving risk of physical harm. 88. Metropolitan Life Insurance Company is liable to plaintiff for plaintiff s injury pursuant to Section 310 and 311 of the Restatement of Torts (Second). 89. As a direct and proximate result of the actions of defendant, Metropolitan Life Insurance Company, plaintiff suffered serious bodily injury and death; endured and incurred medical expenses; lost earnings and earning capacity; and was otherwise damaged of 28

27 WHEREFORE, as a result of the foregoing, Plaintiffs demands compensatory and punitive damages on behalf of James Dickson in an amount that exceeds the jurisdictional limit of the lower courts. WHEREFORE, as a result of the foregoing, Plaintiffs demand compensatory and punitive damages in an amount that exceeds the jurisdictional limit of the lower courts. WHEREFORE, Plaintiffs James and Judith Dickson demand judgment against the Defendants on each of the above enumerated claims on behalf of James and Judith Dickson for compensatory damages and for punitive damages, on each and every claim asserted herein, against each Defendant to the fullest extent permitted under the law, together with attorneys' fees, costs and disbursements of this action, and for such other and further relief as this Court deems just and proper. Dated: New York, New York February 6, 2017 MAUNE RAICHLE HARTLEY FRENCH & MUDD, LLC By: Nathaniel N. Falda 8 W. 38 th Street, Suite 1001 New York, New York (800) (telephone) (212) (facsimile) Attorney for Plaintiffs of 28

28 ATTORNEY'S VERIFICATION shows that: The undersigned, an attorney admitted to practice in the Courts of the State of New York, Affirmant is associated with the attorneys of record for Plaintiffs in the within action; Affirmant has read the foregoing VERIFIED COMPLAINT and knows the contents thereof to be true to Affirmant's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, Affirmant believes those matters to be true. The grounds of Affirmant's belief as to all matters not stated upon his knowledge are based upon information contained in the file maintained in Affirmant's office. This verification is made by Affirmant and not by the Plaintiffs because the Plaintiffs reside outside the county wherein Affirmant maintains his office. perjury. The undersigned affirms that the foregoing statements are true under the penalties of Dated: New York, NY February 6, 2017 Nathaniel N. Falda of 28