FILED: NASSAU COUNTY CLERK 07/21/ :42 PM INDEX NO /2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/21/2017

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU JOSEPH V. BOCCAFOLA, Plaintiff, - against - A.O. SMITH WATER PRODUCTS CO., et. al. Defendants. Index No /2017 UNION CARBIDE CORPORATION S VERIFIED ANSWER WITH CROSS CLAIMS TO PLAINTIFF S VERIFIED COMPLAINT Defendant, Union Carbide Corporation ( Union Carbide ), by its attorneys Darger Errante Yavitz & Blau LLP, answers the Verified Complaint of Joseph V. Boccafola as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1 and 2 of Plaintiff s Complaint. 2. Denies the allegations contained in paragraphs 3 through 30 of the Complaint insofar as they pertain to Union Carbide. Union Carbide further denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the aforesaid paragraph as they pertain to the remaining defendants in the Complaint, and respectfully refers all questions of law to the Court. AS TO THE FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS 3. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 30 of Plaintiff s Complaint as if set forth in full herein. 4. Denies the allegations contained in paragraphs 32 through 50 of the Complaint insofar as they pertain to Union Carbide, denies knowledge or information sufficient to form a { v1} 1 of 30

2 belief as to the allegations contained in the aforesaid paragraphs insofar as they pertain to Plaintiff or to defendants other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the First Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and against Plaintiff, 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 AGAINST ALL DEFENDANTS 5. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 50 of Plaintiff s Complaint as if set forth in full herein. 6. Denies the allegations contained in Paragraphs 52 through 56 of the Complaint as they pertain to Union Carbide, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the Second Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and against Plaintiff, 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 AGAINST ALL DEFENDANTS 7. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 56 of Plaintiff s Complaint as if set forth in full herein. { v1} -2-2 of 30

3 8. Denies the allegations contained in Paragraphs 58 through 66 of the Complaint as they pertain to Union Carbide, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the Third Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and against Plaintiff, 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 AGAINST ALL DEFENDANTS 9. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 66 of Plaintiff s Complaint as if set forth in full herein. 10. Denies the allegations contained in Paragraphs 68 through 77 of the Complaint as they pertain to Union Carbide, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the Fourth Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and against Plaintiff, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. { v1} -3-3 of 30

4 AS TO THE FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS 11. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 77 of Plaintiff s Complaint as if set forth in full herein. 12. Denies the allegations contained in Paragraphs 79 through 96 of the Complaint as they pertain to Union Carbide, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the Fifth Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and against Plaintiff, 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 AGAINST ALL DEFENDANTS 13. Union Carbide herein repeats, reiterates and re-alleges each and every answer heretofore made to Paragraphs 1 through 96 of Plaintiff s Complaint as if set forth in full herein. 14. Denies the allegations contained in Paragraphs 98 through 99 of the Complaint as they pertain to Union Carbide, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Union Carbide, and refers all questions of law to the Court. WHEREFORE, Union Carbide demands the Sixth Cause of Action of the Complaint be dismissed with prejudice and that judgment thereon be entered in favor of Union Carbide and { v1} -4-4 of 30

5 against Plaintiff, together with an award of costs of suit and such other and further relief as this Court may deem appropriate. FIRST AFFIRMATIVE DEFENSE 15. The Court lacks jurisdiction over the subject matter of this action. SECOND AFFIRMATIVE DEFENSE 16. This Court lacks personal jurisdiction over Union Carbide. THIRD AFFIRMATIVE DEFENSE 17. All claims are time-barred by the applicable Statute of Limitations. FOURTH AFFIRMATIVE DEFENSE 18. All claims are barred by the applicable statute of repose. FIFTH AFFIRMATIVE DEFENSE 19. All causes of action have not been maintained in a timely fashion and Plaintiff has neglected the same and should be barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE 20. All claims should be dismissed based upon inconvenient forum. SEVENTH AFFIRMATIVE DEFENSE 21. Plaintiff lacks the legal capacity, standing, and authority to bring this action. N EIGHTH AFFIRMATIVE DEFENSE 22. All claims should be dismissed based upon waiver. { v1} -5-5 of 30

6 NINTH AFFIRMATIVE DEFENSE 23. 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 24. All claims should be dismissed based upon documentary evidence. N ELEVENTH AFFIRMATIVE DEFENSE 25. All claims should be dismissed based upon Plaintiff s infancy or other disability. TWELFTH AFFIRMATIVE DEFENSE 26. Any damages sustained by Plaintiff were the result of an intervening and/or superseding cause not of Union Carbide s doing. THIRTEENTH AFFIRMATIVE DEFENSE 27. The Complaint and each and every allegation considered separately fail to state any cause of action against Union Carbide upon which relief can be granted. FOURTEENTH AFFIRMATIVE DEFENSE 28. This action is barred by Plaintiff s failure to join necessary and/or indispensable parties without which this action should not proceed and should be dismissed. 29. Venue is improper. FIFTEENTH AFFIRMATIVE DEFENSE { v1} -6-6 of 30

7 SIXTEENTH AFFIRMATIVE DEFENSE 30. There is a lack or insufficiency of service of process upon Union Carbide. SEVENTEENTH AFFIRMATIVE DEFENSE 31. Plaintiff s 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 Plaintiff s alleged exposure may have occurred. satisfaction. N EIGHTEENTH AFFIRMATIVE DEFENSE 32. Plaintiff s claims are or may be barred or otherwise limited by reason of accord and NINETEENTH AFFIRMATIVE DEFENSE 33. In the event that Plaintiff was employed by Union Carbide, Plaintiff s 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 Plaintiff may have worked. TWENTIETH AFFIRMATIVE DEFENSE 34. Plaintiff s loss of consortium claim is barred as a matter of law to the extent that the alleged exposure to Union Carbide s product, material, or equipment predates the date of Plaintiff s marriage. { v1} -7-7 of 30

8 TWENTY-FIRST AFFIRMATIVE DEFENSE 35. 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 36. Plaintiff s alleged injuries were not caused by exposure to any alleged Union Carbide product, material, or equipment. TWENTY-THIRD AFFIRMATIVE DEFENSE 37. Union Carbide denies any successor liability for any product, material or equipment from which Plaintiff alleges injuries. TWENTY-FOURTH AFFIRMATIVE DEFENSE 38. To the extent that Plaintiff worked with or around any product, material, or equipment manufactured, sold, or distributed by Union Carbide, said product, material, or equipment did not contain asbestos. TWENTY-FIFTH AFFIRMATIVE DEFENSE 39. Union Carbide did not specify, recommend, direct, or require the use of asbestos or asbestos containing products, materials, or equipment. TWENTY-SIXTH AFFIRMATIVE DEFENSE 40. Union Carbide denies that Plaintiff 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 { v1} -8-8 of 30

9 commerce by Union Carbide and, more particularly, denies upon information and belief that Union Carbide 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 Plaintiff. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 41. Union Carbide specifically denies that the asbestos or asbestos-containing products, material, or equipment to which Plaintiff alleges 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. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 42. In the event Plaintiff should prove exposure to any Union Carbide product, material, or equipment, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Union Carbide product, material, or equipment caused any alleged injury. TWENTY-NINTH AFFIRMATIVE DEFENSE 43. In the event Plaintiff should prove exposure at any location for which Union Carbide is claimed to be legally liable, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Union Carbide product, material, or equipment caused any alleged injury. { v1} -9-9 of 30

10 THIRTIETH AFFIRMATIVE DEFENSE 44. Contact with or use by Plaintiff of any asbestos or asbestos-containing products, materials, or equipment supplied, sold, or manufactured by Union Carbide was not a substantial contributing cause of any alleged injury. THIRTY-FIRST AFFIRMATIVE DEFENSE 45. To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a location for which Union Carbide is claimed to be legally liable at a time when Union Carbide had no legal relationship to that location, Union Carbide cannot be held liable for the alleged injuries. THIRTY-SECOND AFFIRMATIVE DEFENSE 46. Plaintiff s claims against Union Carbide must be dismissed because Union Carbide did not own, lease, occupy, possess, supervise, manage, and/or control the area at or near the location where Plaintiff was allegedly injured. THIRTY-THIRD AFFIRMATIVE DEFENSE 47. Plaintiff s claims against Union Carbide must be dismissed because Union Carbide did not supervise, control, manage, and/or direct Plaintiff, Plaintiff s employer, Plaintiff s coworkers, and/or any person or persons in the area at or near the location where Plaintiff was allegedly injured. THIRTY-FOURTH AFFIRMATIVE DEFENSE 48. The conditions at and around the location at which Plaintiff was allegedly injured constituted open and obvious hazards against which Union Carbide had no duty to warn. { v1} of 30

11 THIRTY-FIFTH AFFIRMATIVE DEFENSE 49. To the extent that Plaintiff seeks recovery for injuries allegedly suffered at a location for which Union Carbide is claimed to be legally liable, Plaintiff s claims against Union Carbide must be dismissed because Union Carbide did not specify, purchase, or supply any asbestos-containing products, materials, or equipment used or handled by Plaintiff, Plaintiff s employer, Plaintiff s co-workers, and/or any person or persons in the area at or near the location of Plaintiff s alleged injury. THIRTY-SIXTH AFFIRMATIVE DEFENSE 50. The conditions at and around the location at which Plaintiff was allegedly injured constituted open and obvious hazards that Plaintiff was obligated to avoid and/or required to take reasonable and appropriate precautions so as to avoid injury. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 51. Plaintiff s claims are barred or limited by the doctrines of contributory negligence and comparative fault. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 52. The alleged injuries were caused directly, solely and proximately by sensitivities, idiosyncrasies, and/or other reactions peculiar to Plaintiff alone and not found in the general public. THIRTY-NINTH AFFIRMATIVE DEFENSE 53. Plaintiff s significant pre-existing medical conditions caused the alleged injuries and/or damages. { v1} of 30

12 evidence. FORTIETH AFFIRMATIVE DEFENSE 54. Union Carbide did not have a duty to warn Plaintiff. FORTY-FIRST AFFIRMATIVE DEFENSE 55. All claims are barred or diminished because of Plaintiff s failure to preserve FORTY-SECOND AFFIRMATIVE DEFENSE 56. Plaintiff was contributorily negligent in: 57. Working with materials he knew or should have known to be hazardous to his health, without use of available protective devices, and without taking reasonable precautions to guard against damages resulting from work with such materials; 58. Failing to seek medical treatment and advice, and/or continuing to smoke, after the first manifestation of their alleged asbestos illness; and/or 59. Using, in whole or in part, of other substances, products, medications, and drugs; 60. As further discovery may reveal. FORTY-THIRD AFFIRMATIVE DEFENSE 61. If Plaintiff used tobacco products, his use was a failure to exercise ordinary care for his own safety and the sole or primary cause of his injuries. The negligence of Plaintiff 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 Plaintiff s complaint. { v1} of 30

13 FORTY-FOURTH AFFIRMATIVE DEFENSE 62. Plaintiff 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 he complains. FORTY-FIFTH AFFIRMATIVE DEFENSE 63. Plaintiff was warned of the risk of exposure to asbestos and asbestos-containing products, materials and equipment. FORTY-SIXTH AFFIRMATIVE DEFENSE 64. The alleged incident, injuries, and damages of which Plaintiff complains were caused by unauthorized, unintended, and/or improper use of asbestos, asbestos-containing product, material, and/or equipment complained of, and as a result of the failure to exercise reasonable care, caution, or vigilance for which Union Carbide is not legally liable or responsible. been met. FORTY-SEVENTH AFFIRMATIVE DEFENSE 65. The conditions precedent to the maintenance of a wrongful death claim have not FORTY-EIGHTH AFFIRMATIVE DEFENSE 66. 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 Plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages. { v1} of 30

14 FORTY-NINTH AFFIRMATIVE DEFENSE 67. Each and every cause of action in the Complaint is barred or limited by reason of the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of the risk. and damages. FIFTIETH AFFIRMATIVE DEFENSE 68. Plaintiff failed to mitigate or otherwise act to lessen or reduce the alleged injuries FIFTY-FIRST AFFIRMATIVE DEFENSE 69. Plaintiff, his coworkers, and/or his employers misused, abused, mistreated, misapplied, and/or substantially modified the product, material, and/or equipment to which Plaintiff alleges exposure. FIFTY-SECOND AFFIRMATIVE DEFENSE 70. 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 damages or injuries, Union Carbide 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 Plaintiff, his coworkers, and/or his employers bears to the conduct that caused the alleged injuries or damages. FIFTY-THIRD AFFIRMATIVE DEFENSE 71. Each and every cause of action in the Complaint is barred in whole or in part by the negligence and conduct of Plaintiff s employers. { v1} of 30

15 FIFTY-FOURTH AFFIRMATIVE DEFENSE 72. Union Carbide asserts the change of the product, material, or equipment s condition as a defense. FIFTY-FIFTH AFFIRMATIVE DEFENSE 73. Plaintiff failed to exercise ordinary care for his own safety, and that failure is a partial or complete bar to all claims asserted in the Complaint. FIFTY-SIXTH AFFIRMATIVE DEFENSE 74. If Plaintiff 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 Union Carbide had no control or right of control. FIFTY-SEVENTH AFFIRMATIVE DEFENSE 75. Plaintiff s claims are barred to the extent they are based on exposure, if any, of Plaintiff to materials or raw materials sold or supplied by Union Carbide as a bulk supplier or a component supplier. FIFTY-EIGHTH AFFIRMATIVE DEFENSE 76. While Union Carbide denies Plaintiff s allegations as to negligence, statutory liability, strict liability, premises liability, injury, and damages, to the extent that Plaintiff 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 Union Carbide had neither control nor right of control. { v1} of 30

16 FIFTY-NINTH AFFIRMATIVE DEFENSE 77. Plaintiff s 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 78. Union Carbide 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 79. Union Carbide is immune from liability for any conduct performed in conformity with the United States government specifications and/or contracts. SIXTY-SECOND AFFIRMATIVE DEFENSE 80. To the extent that Union Carbide 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, Union Carbide is likewise immune 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 81. Union Carbide is immune from liability for any conduct performed in conformity with the specifications mandated by Plaintiff s employer. { v1} of 30

17 SIXTY-FOURTH AFFIRMATIVE DEFENSE 82. This action is barred by the doctrines of sophisticated purchaser/employer, sophisticated/learned intermediary, and/or sophisticated user. SIXTY-FIFTH AFFIRMATIVE DEFENSE 83. Union Carbide owed no legal duty to Plaintiff. SIXTY-SIXTH AFFIRMATIVE DEFENSE 84. 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 Union Carbide and, therefore, if there was a duty to warn Plaintiff, then the duty was on those other persons, business entities, and/or governmental entities, and not on Union Carbide. SIXTY-SEVENTH AFFIRMATIVE DEFENSE 85. The failure of the purchasers/employers to warn and/or safeguard Plaintiff from any possible health hazards associated with asbestos was an intervening and/or superseding cause of the alleged injuries. SIXTY-EIGHTH AFFIRMATIVE DEFENSE 86. At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Union Carbide 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 { v1} of 30

18 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 87. At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Union Carbide acted in conformity to the available knowledge and research of the scientific and industrial communities. SEVENTIETH AFFIRMATIVE DEFENSE 88. Union Carbide had no knowledge of the dangerous propensities, if any, of the products, materials, and/or equipment that allegedly caused injuries to Plaintiff. SEVENTY-FIRST AFFIRMATIVE DEFENSE 89. 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 Union Carbide to know of such character or nature or to warn Plaintiff or others similarly 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 90. This action cannot be maintained on substantive or jurisdictional statutes or legal theories which did not exist prior to the date on which Plaintiff allegedly used Union Carbide s { v1} of 30

19 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 91. Union Carbide is not a joint tortfeasor with any other defendant herein, and accordingly, Union Carbide may not be jointly and severally liable with other defendants. SEVENTY-FOURTH AFFIRMATIVE DEFENSE 92. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. SEVENTY-FIFTH AFFIRMATIVE DEFENSE 93. Union Carbide denies the existence of any express warranty, implied warranty, privity, and/or breach of warranty. SEVENTY-SIXTH AFFIRMATIVE DEFENSE 94. 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 Union Carbide by reason of their failure to allege privity of contract between Plaintiff and Union Carbide. SEVENTY-SEVENTH AFFIRMATIVE DEFENSE 95. Plaintiff did not directly or indirectly purchase any asbestos or asbestos-containing products, materials, and/or equipment from Union Carbide, and Plaintiff neither received nor relied upon any warranty or representation that may be alleged to have been made by Union Carbide. { v1} of 30

20 SEVENTY-EIGHTH AFFIRMATIVE DEFENSE 96. In the event that any breach of warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to Union Carbide. SEVENTY-NINTH AFFIRMATIVE DEFENSE 97. 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. N EIGHTIETH AFFIRMATIVE DEFENSE 98. Plaintiff s speculative, uncertain, and/or contingent damages have not accrued and are not recoverable. N EIGHTY-FIRST AFFIRMATIVE DEFENSE 99. 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 Union Carbide. N EIGHTY-SECOND AFFIRMATIVE DEFENSE 100. Union Carbide is not and was not a manufacturer, seller, or supplier within the meaning of the doctrine of strict liability in tort or contract. N EIGHTY-THIRD AFFIRMATIVE DEFENSE 101. Pursuant to the governing Case Management Order Section XVII, punitive damages are not available in this action. { v1} of 30

21 N EIGHTY-FOURTH AFFIRMATIVE DEFENSE 102. Plaintiff s causes of action for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. N EIGHTY-FIFTH AFFIRMATIVE DEFENSE 103. The Complaint fails to specify any willful or wanton conduct on the part of Union Carbide; therefore, all claims referring to the recovery of punitive damages in the Complaint must be stricken. N EIGHTY-SIXTH AFFIRMATIVE DEFENSE 104. To the extent that Plaintiff seeks punitive damages against Union Carbide, 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. N EIGHTY-SEVENTH AFFIRMATIVE DEFENSE 105. To the extent that Plaintiff seeks punitive damages against Union Carbide, these damages are barred by: { v1} of 30

22 a. The Due Process Clause of the Fourteenth Amendment to the United States Constitution; b. The proscription of the Eighth Amendment to the United States Constitution to the States through the Fourteenth Amendment prohibiting the imposition of excessive fines; c. The double jeopardy clause of the Fifth Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment; and d. The Constitution of the United States and the Constitution of the State of New York. N EIGHTY-EIGHTH AFFIRMATIVE DEFENSE 106. The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Union Carbide 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-NINTH AFFIRMATIVE DEFENSE 107. The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Union Carbide 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. NINETIETH AFFIRMATIVE DEFENSE 108. 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, { v1} of 30

23 the Due Process Clause of the New York State Constitution, and/or the applicable laws of any relevant jurisdiction and venue. NINETY-FIRST AFFIRMATIVE DEFENSE 109. If the Court should award damages to Plaintiff, Union Carbide requests that the amount of damages that might be recoverable be diminished based upon the culpable conduct attributable to Plaintiff pursuant to pursuant to N.Y. C.P.L.R and/or the applicable laws of any relevant jurisdiction and venue. NINETY-SECOND AFFIRMATIVE DEFENSE 110. Defendant 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-THIRD AFFIRMATIVE DEFENSE 111. If the Court should award damages to Plaintiff, Union Carbide requests that the amount of damages that might be recoverable be diminished based upon any and all collateral sources of payment available to Plaintiff pursuant to N.Y. C.P.L.R and/or the applicable laws of any relevant jurisdiction and venue. { v1} of 30

24 NINETY-FOURTH AFFIRMATIVE DEFENSE 112. In the event of a finding of liability of Union Carbide, Union Carbide s liability to Plaintiff shall not exceed Union Carbide s equitable share determined in accordance with the relative culpability of each person or business entity, including bankrupt entities, causing or contributing 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-FIFTH AFFIRMATIVE DEFENSE 113. 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 Plaintiff has given an alleged tortfeasor other than Union Carbide 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 the greater. NINETY-SIXTH AFFIRMATIVE DEFENSE 114. Union Carbide is entitled to a set-off or credit in the amount of any settlement or compromise heretofore or hereafter reached by Plaintiff with any person or entity for any of Plaintiff s alleged damages. NINETY-SEVENTH AFFIRMATIVE DEFENSE 115. Plaintiff s 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 Plaintiff has lived and worked. { v1} of 30

25 NINETY-EIGHTH AFFIRMATIVE DEFENSE 116. Plaintiff s alleged injuries were caused, in whole or in part, by and through the operation of nature. NINETY-NINTH AFFIRMATIVE DEFENSE 117. Plaintiff s alleged injuries were not caused or contributed to by Plaintiff s exposure to asbestos, but rather by Plaintiff s exposure to dangerous or hazardous chemicals, fumes, products, substances, and/or dust produced by products, materials, and/or equipment, for which Union Carbide is not legally liable, which were present at Plaintiff s workplace or elsewhere. ONE HUNDREDTH AFFIRMATIVE DEFENSE 118. To the extent that Plaintiff is unable to identify the product(s) that allegedly caused injury to Plaintiff, the relief sought by Plaintiff contravenes Union Carbide 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 HUNDRED AND FIRST AFFIRMATIVE DEFENSE 119. The presence of asbestos or asbestos-containing products, materials, and/or equipment allegedly manufactured or supplied by Union Carbide and relevant in this action, if any, was the result of complying with specifications or requirements of Plaintiff s employers, and/or the United States Government, and/or the State of New York, and/or other federal or state entities. { v1} of 30

26 ONE HUNDRED AND SECOND AFFIRMATIVE DEFENSE 120. The products, materials, or equipment allegedly manufactured or supplied by Union Carbide and relevant in this action, if any, did not have any defects, including any alleged manufacturing defects, design defects, or inadequate warnings. Complaint. Complaint. ONE HUNDRED AND THIRD AFFIRMATIVE DEFENSE 121. Federal law pre-empts, in whole or in part, the state law claims alleged in the ONE HUNDRED AND FOURTH AFFIRMATIVE DEFENSE 122. Union Carbide reserves the right to move to sever the various allegations in the ONE HUNDRED AND FIFTH AFFIRMATIVE DEFENSE 123. Union Carbide 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 SIXTH AFFIRMATIVE DEFENSE 124. 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, Union Carbide 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. { v1} of 30

27 AS AND FOR CROSS-CLAIMS AGAINST CO-DEFENDANTS 125. If Plaintiff sustained injuries and/or damages through any carelessness, recklessness, and/or negligence other than that of Plaintiff himself, 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 hereafter named herein, with indemnification and/or contribution to Union Carbide as implied-infact or implied-in-law If Union Carbide is found liable as to Plaintiff 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 Union Carbide and will be bound to fully indemnify and hold that Union Carbide 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 If Plaintiff should recover a judgment against Union Carbide, by operation of law or otherwise, Union Carbide 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. { v1} of 30

28 128. 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, Union Carbide 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 129. Union Carbide denies all material allegations contained in all co-defendants crossclaims, and Union Carbide does not waive any defenses to any cross-claims Union Carbide repeats and reasserts the affirmative defenses raised above and incorporates each herein as affirmative defenses to any cross-claims asserted against Union Carbide. { v1} of 30

29 WHEREFORE, Union Carbide demands judgment dismissing the Complaint. In the alternative, Union Carbide demands judgment over and against the co-defendants and thirdparty defendants now or hereafter named on the grounds of indemnification or contribution, for all or part of any verdict or judgment, together with its costs and disbursements, and for such other and further relief as this Court deems appropriate. Dated: New York, New York July 21, 2017 Yours, etc. By: DARGER ERRANTE YAVITZ & BLAU LLP /s/ Lauren Watt Lauren A. Watt Esq. Attorneys for Union Carbide 116 East 27th Street, 12th Floor New York, New York (212) { v1} of 30

30 VERIFICATION STATE OF NEW YORK ) : ss. COUNTY OF NEW YORK ) LAUREN A. WATT, being duly sworn, deposes and says: That she is an attorney with the law firm Darger Errante Yavitz & Blau LLP, the attorneys for UNION CARBIDE CORPORATION in the above-entitled action; that she has read and knows the contents of the foregoing UNION CARBIDE S VERIFIED ANSWER WITH CROSSCLAIMS TO PLAINTIFF S VERIFIED COMPLAINT and that same is true to her own knowledge, except as to those matters therein stated to be alleged upon information and belief that as to those matters she believes them to be true. Deponent further says that the reason why this verification is made by deponent and not by UNION CARBIDE CORPORATION is because UNION CARBIDE CORPORATION is not in the County where deponent has her office. Dated: July 21, 2017 /s/ Lauren Watt LAUREN A. WATT, ESQ. { v1} 30 of 30