FILED: NEW YORK COUNTY CLERK 06/07/ :27 AM INDEX NO /2016 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/07/2016

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1 FILED: NEW YORK COUNTY CLERK 06/07/ :27 AM INDEX NO /2016 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/07/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LESLIE FOGEL and CATHERINE FOGEL, - against - Plaintiffs, AMERICAN INTERNATIONAL INDUSTRIES FOR CLUBMAN, et. al. Index No /2016 UNILEVER UNITED STATES, INC. S ANSWER WITH CROSS CLAIMS TO PLAINTIFFS FIRST AMENDED COMPLAINT Defendants. Defendant, Unilever United States, Inc., incorrectly sued herein as Unilever United States, Inc. d/b/a Brut ( Unilever ), by its attorneys Darger Errante Yavitz & Blau LLP, answers the Amended Complaint of Leslie Fogel and Catherine Fogel 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 Plaintiffs New York Asbestos Litigation Standard Complaint No. 1 ( Standard Complaint ). 2. Denies the allegations contained in paragraphs 3 through 6 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 of the Standard Complaint. 4. Denies the allegations contained in paragraph 8 of the Standard Complaint. 5. Denies the allegations contained in paragraph 9 of the Standard Complaint. 1 1 of 27

2 6. Denies the allegations contained in paragraphs 10 through 22 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 7. Denies the allegations contained in paragraphs 24 through 32 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 8. Denies the allegations contained in paragraphs 34 through 36 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 9. Denies the allegations contained in paragraphs 38 through 39 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 10. Denies the allegations contained in paragraphs 41 through 42 of the Standard Complaint as they pertain to Unilever, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than Unilever, and refers all questions of law to the Court. 11. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of Plaintiffs Amended Verified Complaint. 2 2 of 27

3 FIRST AFFIRMATIVE DEFENSE 12. The Court lacks jurisdiction over the subject matter of this action. SECOND AFFIRMATIVE DEFENSE 13. This Court lacks personal jurisdiction over Unilever. THIRD AFFIRMATIVE DEFENSE 14. All claims are time-barred by the applicable Statute of Limitations. FOURTH AFFIRMATIVE DEFENSE 15. All claims are barred by the applicable statute of repose. FIFTH AFFIRMATIVE DEFENSE 16. 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 17. All claims should be dismissed based upon inconvenient forum. SEVENTH AFFIRMATIVE DEFENSE 18. Plaintiffs lack the legal capacity, standing, and authority to bring this action. N EIGHTH AFFIRMATIVE DEFENSE 19. All claims should be dismissed based upon waiver. 3 3 of 27

4 NINTH AFFIRMATIVE DEFENSE 20. 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 21. All claims should be dismissed based upon documentary evidence. N ELEVENTH AFFIRMATIVE DEFENSE 22. All claims should be dismissed based upon Plaintiffs infancy or other disability. TWELFTH AFFIRMATIVE DEFENSE 23. Any damages sustained by Plaintiffs were the result of an intervening and/or superseding cause not of Unilever s doing. THIRTEENTH AFFIRMATIVE DEFENSE 24. The Complaint and each and every allegation considered separately fail to state any cause of action against Unilever upon which relief can be granted. FOURTEENTH AFFIRMATIVE DEFENSE 25. 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. 26. Venue is improper. FIFTEENTH AFFIRMATIVE DEFENSE 4 4 of 27

5 SIXTEENTH AFFIRMATIVE DEFENSE 27. There is a lack or insufficiency of service of process upon Unilever. SEVENTEENTH AFFIRMATIVE DEFENSE 28. 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 Plaintiffs alleged exposure may have occurred. satisfaction. N EIGHTEENTH AFFIRMATIVE DEFENSE 29. Plaintiffs claims are or may be barred or otherwise limited by reason of accord and NINETEENTH AFFIRMATIVE DEFENSE 30. In the event that Plaintiffs were employed by Unilever, 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 31. Plaintiffs loss of consortium claim is barred as a matter of law to the extent that the alleged exposure to Unilever s product, material, or equipment predates the date of Plaintiffs marriage. 5 5 of 27

6 TWENTY-FIRST AFFIRMATIVE DEFENSE 32. 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 33. Plaintiffs alleged injuries were not caused by exposure to any alleged Unilever product, material, or equipment. TWENTY-THIRD AFFIRMATIVE DEFENSE 34. Unilever denies any successor liability for any product, material or equipment from which Plaintiffs allege injuries. TWENTY-FOURTH AFFIRMATIVE DEFENSE 35. To the extent that Plaintiffs worked with or around any product, material, or equipment manufactured, sold, or distributed by Unilever, said product, material or equipment did not contain asbestos. TWENTY-FIFTH AFFIRMATIVE DEFENSE 36. Unilever did not specify, recommend, direct, or require the use of asbestos or asbestos containing products, materials, or equipment. TWENTY-SIXTH AFFIRMATIVE DEFENSE 37. Unilever 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 6 6 of 27

7 commerce by Unilever and, more particularly, denies upon information and belief that Unilever mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in the stream of commerce any asbestos or asbestoscontaining product, material, or equipment at the times and upon the dates alleged by Plaintiffs. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 38. Unilever 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. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 39. In the event Plaintiffs should prove exposure to any Unilever product, material, or equipment, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Unilever product, material, or equipment caused any alleged injury. TWENTY-NINTH AFFIRMATIVE DEFENSE 40. In the event Plaintiffs should prove exposure at any location for which Unilever is claimed to be legally liable, such exposure was de minimis and not sufficient to establish by a reasonable degree of probability that any Unilever product, material, or equipment caused any alleged injury. 7 7 of 27

8 THIRTIETH AFFIRMATIVE DEFENSE 41. Contact with or use by Plaintiffs of any asbestos or asbestos-containing products, materials, or equipment supplied, sold, or manufactured by Unilever was not a substantial contributing cause of any alleged injury. THIRTY-FIRST AFFIRMATIVE DEFENSE 42. To the extent that Plaintiffs seek recovery for injuries allegedly suffered at a location for which Unilever is claimed to be legally liable at a time when Unilever had no legal relationship to that location, Unilever cannot be held liable for the alleged injuries. THIRTY-SECOND AFFIRMATIVE DEFENSE 43. Plaintiffs claims against Unilever must be dismissed because Unilever did not own, lease, occupy, possess, supervise, manage, and/or control the area at or near the location where Plaintiffs were allegedly injured. THIRTY-THIRD AFFIRMATIVE DEFENSE 44. Plaintiffs claims against Unilever must be dismissed because Unilever 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 45. The conditions at and around the location at which Plaintiffs were allegedly injured constituted open and obvious hazards against which Unilever had no duty to warn. 8 8 of 27

9 THIRTY-FIFTH AFFIRMATIVE DEFENSE 46. To the extent that Plaintiffs seek recovery for injuries allegedly suffered at a location for which Unilever is claimed to be legally liable, Plaintiffs claims against Unilever must be dismissed because Unilever did not specify, purchase, or supply any asbestos-containing products, materials, or equipment used or handled by Plaintiffs, Plaintiffs employer, Plaintiffs coworkers, and/or any person or persons in the area at or near the location of Plaintiffs alleged injury. THIRTY-SIXTH AFFIRMATIVE DEFENSE 47. 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. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 48. Plaintiffs claims are barred or limited by the doctrines of contributory negligence and comparative fault. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 49. 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. THIRTY-NINTH AFFIRMATIVE DEFENSE 50. Plaintiffs significant pre-existing medical conditions caused the alleged injuries and/or damages. 9 9 of 27

10 evidence. FORTIETH AFFIRMATIVE DEFENSE 51. Unilever did not have a duty to warn Plaintiffs. FORTY-FIRST AFFIRMATIVE DEFENSE 52. All claims are barred or diminished because of Plaintiffs failure to preserve FORTY-SECOND AFFIRMATIVE DEFENSE 53. 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; 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 54. 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 of 27

11 FORTY-FOURTH AFFIRMATIVE DEFENSE 55. 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 56. Plaintiffs were warned of the risk of exposure to asbestos and asbestos-containing products, materials and equipment. FORTY-SIXTH AFFIRMATIVE DEFENSE 57. 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 Unilever is not legally liable or responsible. been met. FORTY-SEVENTH AFFIRMATIVE DEFENSE 58. The conditions precedent to the maintenance of a wrongful death claim have not FORTY-EIGHTH AFFIRMATIVE DEFENSE 59. 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 of 27

12 FORTY-NINTH AFFIRMATIVE DEFENSE 60. 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. and damages. FIFTIETH AFFIRMATIVE DEFENSE 61. Plaintiffs failed to mitigate or otherwise act to lessen or reduce the alleged injuries FIFTY-FIRST AFFIRMATIVE DEFENSE 62. 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 63. 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, Unilever 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 64. Each and every cause of action in the Complaint is barred in whole or in part by the negligence and conduct of Plaintiffs employers of 27

13 defense. FIFTY-FOURTH AFFIRMATIVE DEFENSE 65. Unilever asserts the change of the product, material, or equipment s condition as a FIFTY-FIFTH AFFIRMATIVE DEFENSE 66. 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 67. 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 Unilever had no control or right of control. FIFTY-SEVENTH AFFIRMATIVE DEFENSE 68. 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 Unilever as a bulk supplier or a component supplier. FIFTY-EIGHTH AFFIRMATIVE DEFENSE 69. While Unilever 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 Unilever had neither control nor right of control of 27

14 FIFTY-NINTH AFFIRMATIVE DEFENSE 70. 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 71. Unilever 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 72. Unilever is immune from liability for any conduct performed in conformity with the United States government specifications and/or contracts. SIXTY-SECOND AFFIRMATIVE DEFENSE 73. To the extent that Unilever 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, Unilever 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 74. Unilever is immune from liability for any conduct performed in conformity with the specifications mandated by Plaintiffs employer of 27

15 SIXTY-FOURTH AFFIRMATIVE DEFENSE 75. This action is barred by the doctrines of sophisticated purchaser/employer, sophisticated/learned intermediary, and/or sophisticated user. SIXTY-FIFTH AFFIRMATIVE DEFENSE 76. Unilever owed no legal duty to Plaintiffs. SIXTY-SIXTH AFFIRMATIVE DEFENSE 77. 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 Unilever 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 Unilever. SIXTY-SEVENTH AFFIRMATIVE DEFENSE 78. 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. SIXTY-EIGHTH AFFIRMATIVE DEFENSE 79. At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Unilever 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 27

16 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 80. At all times during the conduct of its corporate operations, the agents, servants, and/or employees of Unilever acted in conformity to the available knowledge and research of the scientific and industrial communities. SEVENTIETH AFFIRMATIVE DEFENSE 81. Unilever 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 82. 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 Unilever to know of such character or nature or to warn Plaintiffs 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 83. 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 Unilever s of 27

17 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 84. Unilever is not a joint tortfeasor with any other defendant herein, and accordingly, Unilever may not be jointly and severally liable with other defendants. SEVENTY-FOURTH AFFIRMATIVE DEFENSE 85. 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 86. Unilever denies the existence of any express warranty, implied warranty, privity, and/or breach of warranty. SEVENTY-SIXTH AFFIRMATIVE DEFENSE 87. 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 Unilever by reason of their failure to allege privity of contract between Plaintiffs and Unilever. SEVENTY-SEVENTH AFFIRMATIVE DEFENSE 88. Plaintiffs did not directly or indirectly purchase any asbestos or asbestos-containing products, materials, and/or equipment from Unilever, and Plaintiffs neither received nor relied upon any warranty or representation that may be alleged to have been made by Unilever of 27

18 SEVENTY-EIGHTH AFFIRMATIVE DEFENSE 89. 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 Unilever. SEVENTY-NINTH AFFIRMATIVE DEFENSE 90. 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 91. Plaintiffs speculative, uncertain, and/or contingent damages have not accrued and are not recoverable. N EIGHTY-FIRST AFFIRMATIVE DEFENSE 92. 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 Unilever. N EIGHTY-SECOND AFFIRMATIVE DEFENSE 93. Unilever 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 94. Pursuant to the governing Case Management Order Section XVII, punitive damages are not available in this action of 27

19 N EIGHTY-FOURTH AFFIRMATIVE DEFENSE 95. Plaintiffs 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 96. The Complaint fails to specify any willful or wanton conduct on the part of Unilever; therefore, all claims referring to the recovery of punitive damages in the Complaint must be stricken. N EIGHTY-SIXTH AFFIRMATIVE DEFENSE 97. To the extent that Plaintiffs seek punitive damages against Unilever, 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 of 27

20 are barred by: N EIGHTY-SEVENTH AFFIRMATIVE DEFENSE 98. To the extent that Plaintiffs seek punitive damages against Unilever, these damages 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 99. The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Unilever 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 100. The amount of punitive damages sought is unconstitutionally excessive and disproportionate to Unilever 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 of 27

21 NINETIETH AFFIRMATIVE DEFENSE 101. 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. NINETY-FIRST AFFIRMATIVE DEFENSE 102. If the Court should award damages to Plaintiffs, Unilever 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-SECOND AFFIRMATIVE DEFENSE 103. 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 104. If the Court should award damages to Plaintiffs, Unilever requests that the amount of damages that might be recoverable be diminished based upon any and all collateral sources of of 27

22 payment available to Plaintiffs pursuant to N.Y. C.P.L.R and/or the applicable laws of any relevant jurisdiction and venue. NINETY-FOURTH AFFIRMATIVE DEFENSE 105. In the event of a finding of liability of Unilever, Unilever s liability to Plaintiffs shall not exceed Unilever 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 106. 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 Unilever 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 107. Unilever 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 of 27

23 NINETY-SEVENTH AFFIRMATIVE DEFENSE 108. 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 Plaintiff has lived and worked. NINETY-EIGHTH AFFIRMATIVE DEFENSE 109. Plaintiffs alleged injuries were caused, in whole or in part, by and through the operation of nature. NINETY-NINTH AFFIRMATIVE DEFENSE 110. 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 Unilever is not legally liable, which were present at Plaintiffs workplace or elsewhere. ONE HUNDREDTH AFFIRMATIVE DEFENSE 111. To the extent that Plaintiffs are unable to identify the product(s) that allegedly caused injury to Plaintiffs, the relief sought by Plaintiffs contravenes Unilever 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 of 27

24 ONE HUNDRED AND FIRST AFFIRMATIVE DEFENSE 112. The presence of asbestos or asbestos-containing products, materials, and/or equipment allegedly manufactured or supplied by Unilever 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 SECOND AFFIRMATIVE DEFENSE 113. The products, materials, or equipment allegedly manufactured or supplied by Unilever 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 114. Federal law pre-empts, in whole or in part, the state law claims alleged in the ONE HUNDRED AND FOURTH AFFIRMATIVE DEFENSE 115. Unilever reserves the right to move to sever the various allegations in the ONE HUNDRED AND FIFTH AFFIRMATIVE DEFENSE 116. Unilever reserves the right to respond and assert defenses as to causes of action that have been dismissed should they be reinstated through subsequent appeal of 27

25 ONE HUNDRED AND SIXTH AFFIRMATIVE DEFENSE 117. 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, Unilever 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 118. 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 hereafter named herein, with indemnification and/or contribution to Unilever as implied-in-fact or implied-in-law If Unilever 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 Unilever and will be bound to fully indemnify and hold that Unilever 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 of 27

26 120. If Plaintiffs should recover a judgment against Unilever, by operation of law or otherwise, Unilever 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 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, Unilever 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 122. Unilever denies all material allegations contained in all co-defendants crossclaims, and Unilever does not waive any defenses to any cross-claims Unilever repeats and reasserts the affirmative defenses raised above and incorporates each herein as affirmative defenses to any cross-claims asserted against Unilever. WHEREFORE, Unilever demands judgment dismissing the Complaint. In the alternative, Unilever demands judgment over and against the co-defendants and third-party defendants now or hereafter named on the grounds of indemnification or contribution, for all or of 27

27 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 June 7, 2016 Yours, etc. By: DARGER ERRANTE YAVITZ & BLAU LLP /s/jonathan Kromberg Jonathan Kromberg, Esq. Attorneys for Unilever United States, Inc. 116 East 27th Street, 12th Floor New York, New York (212) of 27