FILED: NEW YORK COUNTY CLERK 09/07/ :03 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/07/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 09/07/ :03 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/07/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Index No. BENJAMIN FISCHER AND DONA FISCHER SUMMONS AND Plaintiff, VERIFIED COMPLAINT -against- Plaintiff designates New York County as the place of trial The basis of Venue is defendant s place of business and location of exposure AMERICAN BILTRITE, INC. ) AMERICAN OPTICAL CORPORATION ) BAYER CROPSCIENCE, INC., Individually ) and as Successor-in-Interest to TEMIK, ) BORG-WARNER MORSE TEC LLC, as ) Successor-By-Merger To BORG-WARNER) CORPORATION, ) BURNHAM LLC, ) CBS CORPORATION, a DELAWARE CORP., ) f/k/a VIACOM, INC., successor by merger) to CBS CORP., a PENNSYLVANIA ) CORP., f/k/a WESTINGHOUSE ) ELECTRIC CORPORATION, ) CERTAIN-TEED CORPORATION, ) COOPER INDUSTRIES LLC, ) CRANE COMPANY, ) CROWN CORK & SEAL USA, INC., ) DAP, INC., ) DOMCO PRODUCTS TEXAS, L.P., Individually) and as Successor-in-Interest AZROCK, ) DOW CHEMICAL COMPANY, ) FOSTER WHEELER CORPORATION, ) GENERAL ELECTRIC COMPANY, ) GEORGIA-PACIFIC LLC, f/k/a GEORGIA ) PACIFIC CORPORATION, ) GOODRICH CORPORATION, f/k/a The B.F. ) Goodrich Company, ) GOODYEAR TIRE & RUBBER CO., ) GOULDS PUMPS (IPG), INC., ) Plaintiff resides at Palisades Park, NJ 1 1 of 38

2 HERCULES, INC., ) HONEYWELL INTERNATIONAL, INC., ) INDUSTRIAL HOLDINGS CORPORATION, ) f/k/a CARBORUNDUM COMPANY, ) KAISER-GYPSUM COMPANY, INC., ) 3M COMPANY, ) OWENS-ILLINOIS, INC., ) PNEUMO ABEX LLC, successor-in-interest ) to ABEX CORPORATION, ) SAINT-GOBAIN ABRASIVES, INC., ) THE SCOTTS COMPANY, ) THE SHERWIN-WILLIAMS COMPANY, ) Individually and as Successor-in-Interest ) to DUTCH BOY GROUP, ) SID HARVEY INDUSTRIES, INC., ) SPECIAL ELECTRIC COMPANY, INC., ) Individually and successor in interest to ) SPECIAL MATERIALS, INC., SPECIAL) SHIPPING, INC., and CALAVERAS ) MINE, ) STERLING FLUID SYSTEMS (USA), LLC, f/k/a) PEERLESS PUMP COMPANY, ) TRANE US, INC., f/k/a AMERICAN ) STANDARD INC., ) UNDER GLASS MFG. CORP., Individually and ) as Successor-in-Interest to LORD & ) BURNHAM, ) UNION CARBIDE CORPORATION, ) UNIROYAL, INC., ) YORK INTERNATIONAL CORPORATION, ) ZURN INDUSTRIES, L.L.C. f/k/a ZURN ) INDUSTRIES, INC., ) and ) METROPOLITAN LIFE INSURANCE CO., ) 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 Plaintiff's 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 2 2 of 38

3 appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Date : September 7, 2016 Defendants address: See attached rider Gori Julian & Associates, P.C. Attorneys for the Plaintiffs 360 Lexington Avenue, 20th Floor New York, NY of 38

4 SERVICE RIDER FOR BENJAMIN FISCHER As of 9/7/2016 AMERICAN BILTRITE, INC. Prentice Hall Corporation 801 Adlai Stevenson Dr. Springfield, IL AMERICAN OPTICAL CORPORATION Jeffrey A. Healy Esq., Tucker Ellis, LLP 950 Main Avenue, Suite 1100 Cleveland, OH BAYER CROPSCIENCE, INC., Individually and as Successor-in-Interest to TEMIK CORPORATION SERVICE COMPANY 80 STATE STREET ALBANY, NEW YORK, BORG-WARNER CORPORATION by its Successor in Interest BORGWARNER MORSE TEC INC. Attn: Legal Department 3850 Hamlin Road Auburn Hills, MI BURNHAM LLC P.O. Box Harrisburg Pike Lancaster, PA CBS CORPORATION, a DELAWARE CORP., f/k/a VIACOM, INC., successor by merger to CBS Corp., a PENNSYLVANIA CORP., f/k/a WESTINGHOUSE ELECTRIC CORPORATION CORPORATION SERVICE COMPANY 80 STATE STREET ALBANY, NEW YORK, CERTAIN-TEED CORPORATION CT Corporation System 208 South LaSalle Street, Suite 814 Chicago, IL COOPER INDUSTRIES, LLC 20 JUDITH DRIVE ORCHARD PARK, NEW YORK, CRANE COMPANY CT Corporation System 208 South LaSalle Street, Suite 814 Chicago, IL CROWN CORK & SEAL USA, INC. C T CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, DAP, INC Boston Street, Suite 200 Baltimore, MD of 38

5 DOW CHEMICAL COMPANY CT Corporation System 208 South LaSalle Street, Suite 814 Chicago, IL DOMCO PRODUCTS TEXAS, L.P., Individually and as Successor-in-Interest AZROCK CT Corporation System 1999 Bryan Street, Suite 900 Dallas, TX FOSTER WHEELER CORPORATION 53 Frontage Road PO Box 9000 Hampton, NJ GENERAL ELECTRIC COMPANY 3135 EASTON TPKE FAIRFIELD, CONNECTICUT, GEORGIA-PACIFIC LLC, f/k/a GEORGIA PACIFIC CORPORATION CT CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, GOODRICH CORPORATION, f/k/a The B.F. Goodrich Company CT CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, GOODYEAR TIRE & RUBBER CO. Illinois Corporation Service Co. 801 Adlai Stevenson Drive Springfield, IL GOULDS PUMPS (IPG), INC. C T CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, HERCULES, INC. C T CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, HONEYWELL INTERNATIONAL INC. Corporation Service Co. (NY) 80 State Street, 6th Floor Albany, NY INDUSTRIAL HOLDINGS CORPORATION, f/k/a CARBORUNDUM COMPANY THE PRENTICE-HALL CORPORATION SYSTEM INC 80 STATE STREET ALBANY, NEW YORK, of 38

6 KAISER GYPSUM COMPANY, INC. Corporation Service Company (WA) 300 Deschutes Way, SW Suite304 Tumwater, WA M COMPANY CT CORPORATION SYSTEMS 111 EIGHTH AVENUE 13TH FLOOR NEW YORK, NEW YORK, OWENS-ILLINOIS, INC. C T CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, PNEUMO ABEX LLC, successor-in-interest to ABEX CORPORATION, Corporation Service Company 2711 Centreville Road, Suite 400 Wilmington, DE SAINT-GOBAIN ABRASIVES, INC. CT Corporation System 208 South LaSalle Street, Suite 814 Chicago, IL THE SCOTTS COMPANY C T CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, THE SHERWIN-WILLIAMS COMPANY, Individually and as Successor-in-Interest to DUTCH BOY GROUP CORPORATION SERVICE COMPANY 80 STATE STREET ALBANY, NEW YORK, SID HARVEY INDUSTRIES, INC. CT Corporation System 208 South LaSalle Street, Suite 814 Chicago, IL SPECIAL ELECTRIC COMPANY, INC., Individually and successor in interest to SPECIAL MATERIALS, INC., SPECIAL SHIPPING, INC., and CALAVERAS MINE CT Corporation 8020 Excelsior Drive, Suite 200 Madison, WI STERLING FLUID SYSTEMS (USA), LLC, f/k/a PEERLESS PUMP COMPANY, CT Corporation System 150 West Market Street, Suite 800 Indianapolis, IN TRANE U.S., INC., f/k/a AMERICAN STANDARD INC. The Corporation Trust Company (DE) Corporation Trust Center 1209 Orange Street New Castle, DE of 38

7 UNDER GLASS MFG. CORP., Individually and as Successor-in-Interest to Lord & BURNHAM, C. ROBERT CLEMENSON, ESQ. 609 NORTH BROADWAY UPPER NYACK, NEW YORK, UNION CARBIDE CORPORATION CT Corporation System (NY) 111 Eighth Avenue New York, NY UNIROYAL, INC. C/O CDU HOLDING INC LIQUIDATIN TRUST, 70 GREAT HILL ROAD NAUGATUCK, CONNECTICUT, YORK INTERNATIONAL CORPORATION The Corporation Trust Company (DE) Corporation Trust Center 1209 Orange Street New Castle, DE ZURN INDUSTRIES, L.L.C. f/k/a ZURN INDUSTRIES, INC. CT CORPORATION SYSTEM 111 EIGHTH AVENUE NEW YORK, NEW YORK, METROPOLITAN LIFE INSURANCE COMPANY The Corporation Trust Company 1209 Orange Street Wilmington, DE of 38

8 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Index No. BENJAMIN FISCHER AND DONA FISCHER Plaintiff, -against- VERIFIED COMPLAINT AMERICAN BILTRITE, INC. ) AMERICAN OPTICAL CORPORATION ) BAYER CROPSCIENCE, INC., Individually ) and as Successor-in-Interest to TEMIK, ) BORG-WARNER MORSE TEC LLC, as ) Successor-By-Merger To BORG-WARNER) CORPORATION, ) BURNHAM LLC, ) CBS CORPORATION, a DELAWARE CORP., ) f/k/a VIACOM, INC., successor by merger) to CBS CORP., a PENNSYLVANIA ) CORP., f/k/a WESTINGHOUSE ) ELECTRIC CORPORATION, ) CERTAIN-TEED CORPORATION, ) COOPER INDUSTRIES LLC, ) CRANE COMPANY, ) CROWN CORK & SEAL USA, INC., ) DAP, INC., ) DOMCO PRODUCTS TEXAS, L.P., Individually) and as Successor-in-Interest AZROCK, ) DOW CHEMICAL COMPANY, ) FOSTER WHEELER CORPORATION, ) GENERAL ELECTRIC COMPANY, ) GEORGIA-PACIFIC LLC, f/k/a GEORGIA ) PACIFIC CORPORATION, ) GOODRICH CORPORATION, f/k/a The B.F. ) Goodrich Company, ) GOODYEAR TIRE & RUBBER CO., ) GOULDS PUMPS (IPG), INC., ) HERCULES, INC., ) HONEYWELL INTERNATIONAL, INC., ) INDUSTRIAL HOLDINGS CORPORATION, ) f/k/a CARBORUNDUM COMPANY, ) KAISER-GYPSUM COMPANY, INC., ) 3M COMPANY, ) OWENS-ILLINOIS, INC., ) PNEUMO ABEX LLC, successor-in-interest ) to ABEX CORPORATION, ) SAINT-GOBAIN ABRASIVES, INC., ) 8 8 of 38

9 THE SCOTTS COMPANY, ) THE SHERWIN-WILLIAMS COMPANY, ) Individually and as Successor-in-Interest ) to DUTCH BOY GROUP, ) SID HARVEY INDUSTRIES, INC., ) SPECIAL ELECTRIC COMPANY, INC., ) Individually and successor in interest to ) SPECIAL MATERIALS, INC., SPECIAL) SHIPPING, INC., and CALAVERAS ) MINE, ) STERLING FLUID SYSTEMS (USA), LLC, f/k/a) PEERLESS PUMP COMPANY, ) TRANE US, INC., f/k/a AMERICAN ) STANDARD INC., ) UNDER GLASS MFG. CORP., Individually and ) as Successor-in-Interest to LORD & ) BURNHAM, ) UNION CARBIDE CORPORATION, ) UNIROYAL, INC., ) YORK INTERNATIONAL CORPORATION, ) ZURN INDUSTRIES, L.L.C. f/k/a ZURN ) INDUSTRIES, INC., ) and ) METROPOLITAN LIFE INSURANCE CO., ) Defendants x 9 9 of 38

10 COMPLAINT 1) Plaintiffs BENJAMIN FISCHER (hereinafter referred to as plaintiff ) and DONA FISCHER (hereinafter referred to as plaintiff/spouse ) are husband and wife. 2) Each of the defendants named in the caption above has conducted business in the City and 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. 3) Each of the defendants named in the caption above has manufactured, specified, supplied, sold, distributed and/or installed asbestos containing products to which the plaintiff was exposed, or was a contractor at a location where the plaintiff was exposed to asbestos, or manufactured, sold and/or installed equipment which had asbestos components or specified such components for operation, or owned or operated jobsites where asbestos containing products or equipment were used and where the plaintiff was thereby exposed to asbestos. 4) If is deemed that Article 16 of the CPLR applies to this action, the plaintiff asserts that this action falls within one or more of the exceptions set forth in CPLR1602 including, but not limited to, the exception for cases where a person is held liable for causing the claimant s injury by having acted with reckless disregard for the safety of others (CPLR 1602(7)); the exception for cases involving any person held liable for causing claimant s injury having unlawfully released into the environment a substance hazardous to public health, safety or the environment (CPLR 1602(9)); the exception for any parties found to have acted knowingly or intentionally and in concert to cause the acts or failure upon which liability is based (CPLR 1602(11)); the exception based upon defendants non-delegable duty to warn of the health hazards of asbestos of 38

11 (CPLR 2602(2)(iv)); and the exception for persons held liable in a product liability action where the manufacturer of the product is not a party to the action and jurisdiction over the manufacturer could not with due diligence be obtained (CPLR 1602(10)). 5) The plaintiff, in the course of plaintiff s employment, worked with and/or in the vicinity of asbestos containing products and equipment with asbestos containing components, which products and components gave off airborne asbestos fibers, which the plaintiff was thereby forced to inhale. Plaintiff sustained exposure to asbestos in New York and New Jersey including while working from 1963 to 1980 as a Manager/Grower at Morningside Greenhouses, from 1980 to 2015 as a Manager/Grower at Euro American Farms/Fischer & Page, and from 2013 to 2016 as an Owner/Operator at Specialty Flower Farms, as well as at other times and locations. Plaintiff sustained further exposure to asbestos while performing home remodeling work on various residential properties between the 1950s and 1970s. 6) 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 during plaintiff s employment. 7) Defendants, acting in concert, failed to warn the plaintiff and those similarly situated, of the known dangers and hazards of using their 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 of 38

12 8) The inhalation of asbestos fibers is inherently dangerous, in that it proximately causes mesothelioma, lung cancer, asbestosis, pleural scarring and other severe diseases. Plaintiff, BENJAMIN FISCHER, was diagnosed with Mesothelioma on February 10, FIRST CAUSE OF ACTION Paragraphs 1 through 8 are incorporated herein as if set forth in full. 9) The employer or employers of the plaintiff, were engaged in various businesses in which they bought and/or installed asbestos products and materials. 10) The plaintiff, in the course of plaintiff s employment, worked with and/or in the vicinity of asbestos containing products and equipment with asbestos containing components, which products and components gave off airborne asbestos fibers, which the plaintiff was thereby forced to inhale. Plaintiff sustained exposure to asbestos in New York and New Jersey including while working from 1963 to 1980 as a Manager/Grower at Morningside Greenhouses, from 1980 to 2015 as a Manager/Grower at Euro American Farms/Fischer & Page, and from 2013 to 2016 as an Owner/Operator at Specialty Flower Farms, as well as at other times and locations. Plaintiff sustained further exposure to asbestos while performing home remodeling work on various residential properties between the 1950s and 1970s. 11) During the period of time set forth above, the plaintiff was exposed to and did inhale and/or ingest asbestos dust, fibers, and particles, which dust, fibers, and particles came 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 of 38

13 12) 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 the employer(s) of the plaintiff, or to others working at the various job sites in New York where the plaintiff was employed, or to third persons who, in turn, delivered and sold such products and materials to such employers or to others working at such job sites for use by employees, including the plaintiff. 13) At all relevant times that the plaintiff was working, he was exposed to asbestos materials and products which, as part of plaintiff s employment, he was forced to come into contact with and breathe, inhale, and ingest asbestos fibers and particles coming from said asbestos products and materials. 14) At all times pertinent hereto, defendants were engaged in the business of contracting for, mining, milling, processing, manufacturing, designing, testing, assembling, fashioning, fabricating, packaging, supplying, distributing, delivering, marketing, selling and/or installing asbestos and asbestos products. 15) At all times pertinent hereto, 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. 16) The foregoing asbestos products and equipment with asbestos-containing components were defective in one or more of the following ways: of 38

14 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 the plaintiffs' decedent 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. 17) As a result of the above, the plaintiff was caused to sustain permanent injuries caused by plaintiff s coming into contact with breathing, inhaling and ingesting asbestos fibers. The injuries and diseases from which the plaintiff is suffering will continue to cause the plaintiff to suffer pain and suffering, mental anxiety, distress of mind, emotional trauma and mental anguish of 38

15 18) The disease, diseases or injuries from which the plaintiff suffers 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. 19) As a result thereof, the plaintiff's life span may have been shortened and plaintiff s capacity to carry on life's activities has been impaired along with plaintiff s capacity to enjoy life and family. 20) As a result of said illness, the plaintiff has been obligated to incur expenses for medical treatment, x-rays and in the future will be obliged to incur further expenses for such purposes. 21) As a further result of said illness, the plaintiff's earning capacity may be impaired in the future. 22) 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. 23) 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. 24) 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. 25) 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 of 38

16 plaintiff, of the full scope and danger to their health of contact with asbestos products and materials, including the risk of cancer or mesothelioma. 26) The 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. 27) The 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 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. 28) The 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, going back to the 1930's. This State and other states provided compensation for individuals with asbestos related injuries under workers' compensation laws beginning in the 1930's. 29) 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. 30) Notwithstanding that the defendants possessed 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 to the plaintiff, plaintiff s employer(s) and/or to of 38

17 others working at the various job sites and places of employment of the plaintiff and/or the defendants 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. 31) It was the continuing duty of the defendants 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. 32) 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 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; of 38

18 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. 33) The acts and omissions set forth above constitute misconduct that is intentional, willful, and reckless. 34) As a direct and proximate result of the defendant's misconduct hereinbefore set forth, the plaintiff contracted the diseases and injuries set forth in paragraph 8. WHEREFORE, the plaintiff claims: Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, of 38

19 SECOND CAUSE OF ACTION Paragraphs 1 through 34 are incorporated herein as if set forth in full. 35) The plaintiff was a foreseeable user and consumer of the defendants' asbestos and asbestos products. 36) The defendants owed the plaintiff a duty of reasonable care to avoid causing him harm from exposure to their products. 37) The defendants breached their duty in the numerous and various manner set forth above. 38) The defendants' negligence directly and proximately caused the plaintiff's asbestos disease and other lawful damages set forth above. WHEREFORE, the plaintiff claims: Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, THIRD CAUSE OF ACTION Paragraphs 1 through 38 are incorporated herein as if set forth in full. 39) The asbestos containing products hereinbefore described reached the plaintiff in a condition substantially unchanged from when they left the custody and control of the defendants, and were used by the plaintiff, and/or his coworkers in the manner intended by the defendants. 40) The defendants are, therefore, strictly liable to the plaintiff in accordance with Section 402A of the Restatement (Second) of Torts of 38

20 WHEREFORE, the plaintiff claims: Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, FOURTH CAUSE OF ACTION Paragraphs 1 through 40 are incorporated herein as if set forth in full. 41) Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged more fully below: 42) Defendants, their subsidiaries, agents and/or servants were/are owners, possessors, lessors, lessees' operator, controllers, managers, supervisors, general contractors, subcontractors, architects, engineers or were otherwise responsible for the maintenance, control And/or safety at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 43) Defendants, their subsidiaries, agents and/or servants had a legal duty to maintain and keep those premises in a safe and proper condition. 44) At all times relevant hereto, plaintiff was lawfully frequenting the premises on which plaintiff was exposed to asbestos. 45) At all times relevant hereto, plaintiff s presence on the premises on which plaintiff was exposed to asbestos was known or knowable to the defendants of 38

21 46) Defendants, their subsidiaries, agents, and/or servants negligently created, caused and/or permitted to exist, an unsafe, hazardous and/or dangerous condition to exit by specifying, using and/or permitted the presence of asbestos and/or asbestos containing products, equipment and/or fixtures at the premises on which plaintiff was exposed to asbestos. 47) Defendants, their subsidiaries, agents, and/or servants negligently permitted a defective, hazardous and/or dangerous condition to remain uncorrected and/or unchanged at the premises on which the plaintiff was present and exposed to asbestos. 48) Defendants, their subsidiaries, agents, and/or servants knew, or should have known, of the existence of the unsafe, hazardous and/ or dangerous condition and failed to correct this dangerous condition. 49) Defendants, their subsidiaries, agents, and/or servants knew, or should have known of the existence of unsafe, hazardous and/or dangerous condition and failed to warn the plaintiff of the existence of the dangerous condition and/or provide the plaintiff the means to protect himself from the dangerous condition 50) Defendants, their subsidiaries, agents, and/or servants were negligent in that they violated the common law duty to maintain a safe work place for individuals, such as plaintiff, who were working in, lawfully frequenting and exposed to asbestos on premises owned, maintained and/or controlled by them. 51) Defendants, their subsidiaries, agents, and/or servants violated New York Labor law section 200 et seq: including, but not limited to, section 200 and 241 (6) and the New York Industrial Code 12NYCR section 12 and 23 by their failure to provide a safe workplace, including, but not limited to, (g); and 12 NYCRR 12, under the pass through provisions of (g), including but not limited to, (b)(3)(4), (b), (c), (a), (c), of 38

22 1.9(a), (b)(1)(5), (b)(1)(6), , , and by its failure to provide a safe workplace, including but not limited to, failure to make reasonable inspection to detect dangerous conditions and hidden defects and to warn of dangers of which it knew or should have known, and by its failure to provide reasonable and adequate protection for individuals, such as Plaintiff, who was lawfully at a construction site owned, maintained, and/or controlled by it. Inter alia: (a) Defendants, their subsidiaries, agents, and/or servants violated the New York State Industrial Code Section 12, and 14, which states that: I. All operators or processes which produce air contaminants shall be so conducted that the generation, release or dissemination of such contaminants is kept at the lowest practicable level in compliance with this Part (rule). Using proper control of protective procedure and equipment. a. Every employer shall effect compliance with the provision of this Part (rule) relating to the prevention and removal of air contaminants, the storage and use of flammable liquids and the provision, installation, operation and maintenance of control or protective equipment. II. Every employer shall instruct his employees as to the hazards of their work, the use of the protective equipment and their responsibility for complying with Provision of this Part (rule) of 38

23 III. No employee shall suffer or permit an employee to work in a room in which there exist dangerous air contaminants in a work atmosphere. IV. No employee shall suffer or permit dangerous air contaminants to accumulate remain in any place or area subject to the provision of this Part (rule) a) Defendants, their subsidiaries, agents, and/or servants violated New York State Industrial Code Section 12, and 15, which states that: b) Personal respiratory equipment shall not be used in lieu of other control methods, except for protection of employees' emergencies and in the repair, maintenance or adjustment or equipment or processes, or upon specific approval by the board. c) Defendants, their subsidiaries, agents, and/or servants violated New York States Industrial Code Section 12, subsection 1.9 (formerly section 12.9) which states that: d) One or more of the following methods shall be used to prevent, remove or control dangerous air contaminants: e) Substitution of a material of a method which does not produce dangerous air contaminants of 38

24 f) Local exhaust ventilation conforming on the requirements of lndustrial Code Part (Rule No.) 18. g) Dilution Ventilation. h) Application of water or other wetting agent. i) Other methods approved by the board. j) As evidence of defendants' their subsidiaries', agents' and/or servants violation of the abovementioned section of the New York Stated Industrial Code, defendants, their subsidiaries, agents, and/or servants permitted asbestos dust concentrations above the 5mppcf threshold limit value specified in section 12, subsection 3.1, without providing the requires reasonable and adequate protective measures, thereby rendering the premises unsafe. k) Defendants, their subsidiaries, agents, and/or servants violated section 23 3(d) of the New York Industrial Code which state that: l) Provision shall be made at every demolition site control the amount of airborne dust resulting from demolition by wetting the debris and other materials with the appropriate spraying agents or other m e a n s of 38

25 52) That by reason of the foregoing, plaintiff was injured. 53) That the aforementioned injury was caused solely by reason of the careless, negligence, wanton and willful disregard by defendants without any negligence on the part of the plaintiffs contributing thereto. 54) That this action falls within one or more exceptions set forth in CPLR ) Pursuant to CPLR 1602(2)(iv), defendants are jointly and severally liable for all of plaintiffs damages, including, but not limited to, plaintiffs non-economic loss, irrespective of the provisions of CPLR 1601, by reason off the fact that it owed plaintiffs a non-delegable duty of care. 56) Pursuant to CPLR 1602(2)(iv), defendants are jointly and severally liable for All of plaintiffs damages, including, but not limited to, plaintiffs non-economic loss, irrespective of the provisions of CPLR 1601, by reason off the fact that it is vicariously liable for the negligent acts and omissions of others who caused or contributed to plaintiffs damages. 57) That at all times herein mentioned, defendant, its subsidiaries, agents, servants, permittees, contractors, and/or employees failed to maintain the construction site and the work, labor, and services performed thereat in a reasonably safe, suitable and adequate condition and repair. 58) That at all times herein mentioned, defendant, its subsidiaries, agents, servants, permittees, contractors, and/or employees failed to provide for the safety, protection, and well-being of persons lawfully working upon the construction site, in violation of the Labor Law of the State of New York. 59) That at all times herein mentioned, defendant, its subsidiaries, agents, servants, permittees, contractors, and/or employees failed to provide and/or ensure the use of reasonably safe, suitable and adequate safety equipment, safeguards, apparatus, and/or instrumentalities for use of 38

26 in conjunction with the work and the work, labor and or/services which was being performed at the construction site. 60) Defendants, their subsidiaries, agents, and/or servants negligently designed and/or specified the use of asbestos containing products, equipment and/ or fixtures at the premises on which plaintiff was lawfully frequenting and exposed to asbestos. 61) Defendants, their subsidiaries, agents, and/or servants negligently breached their contractual duty to the plaintiff, third party beneficiary, to provide for the health, welfare and/ or safety of those, such as plaintiff, lawfully frequenting the premises on which plaintiff was exposed to asbestos. 62) Defendants, their subsidiaries, agents, and/or servants, breached their warranty to provide for the health, welfare, and/or safety of those such as plaintiff, lawfully frequenting the premises on which plaintiff was exposed to asbestos. 63) Defendants, their subsidiaries, agents, and/or servants breached the duty imposed on possessors of land, contractors and subcontractors and codified in the restatement of the law, Second, Torts, including, but not limited to, section 342, 410, 411, 412, 413, 414, 414A, 416, 422 and ) These acts and/ or omissions of the defendants constitute willful misconduct and conscience disregard of the health of the public, including the p l a i n t i f f. 65) As a direct and proximate result of the defendant s conduct plaintiff was exposed to asbestos and asbestos containing products and sustained serious injuries and described above. 66) Plaintiff was seriously injured. 67) Plaintiff further alleges that the defendants, their subsidiaries, agents, and/or servants violated the New York State Industrial Code (g) and its predecessor, which states: of 38

27 "Air-contaminated or oxygen deficient work areas. The atmosphere of any unventilated confined area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life shall be tested by the employer, his authorized agent or by a designated person before any person is suffered or permitted to work in such area. Such testing shall be in accordance with the provisions of Industrial Code Part (rule) 12 relating to the "Control of Contaminants" and such areas shall be subject to the other pertinent provisions of Industrial Code Part (rule) 12 and of Industrial Code Part (rule) 18 relating to "Exhaust Systems 11 WHEREFORE, the Plaintiff claims: Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, FIFTH CAUSE OF ACTION Paragraphs 1 through 67 are incorporated herein as if set forth in full. 68) Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged more fully below: 69) The term contractor(s) refers to any business entity, concern, individual, or other engaged, employed or otherwise contracted to perform in whole or any part there of construction work, renovation, excavation, demolition, installation of equipment and/or such other activities commensurate with the term contractor as used in the ordinary course of business. 70) These Defendant contractor(s) individually and by and/or through their subcontractors, agents, servants, assigns and employees developed, authored, devised and/or implemented of 38

28 specifications and plans relating to the construction, renovation, excavation, and/or demolition of buildings and other structures at which the Plaintiff was present and which Defendant contractor(s) knew, or should have reasonably ascertained in the exercise of due care, involved the use, application, installation, and/or removal of asbestos, asbestos-containing materials and/or equipment calling for the use and/or installation of asbestos-containing materials. 71) These Defendant contractor(s), knew, or in the exercise of reasonable diligence should have known, that the above specifications and/or plans were dangerous and/or unsafe and presented a potential and/or actual health hazard to those individuals present at such sites where construction, renovation, excavation and/or demolition as above described was being carried out, including this Plaintiff. 72) These Defendant contractor(s) hired, employed, contracted with or otherwise engaged subcontractors and others to carry out the work required by and in accordance with the abovedescribed specifications and plans. 73) These Defendant contractor(s) supervised, oversaw and directed the activities, conduct and work of the both their own employees as well as the employees, agents and assigns of its subcontractors in the performance and carrying out of the above described specifications and plans at various locations including the Plaintiffs' work site(s). 74) Additionally, Defendant contractor(s) purchased and/or delivered and/or caused to be delivered to Plaintiff's work site(s), and other locations and subsequently inventoried and/or warehoused at Plaintiff's work site(s) various asbestos-containing materials and/or machinery and equipment calling for the use of and/or installation of asbestos-containing materials. 75) Defendant contractor(s) exercised control over the work sites at which their employees, subcontractors, agents and assigns were engaged in carrying out the specifications and plans of 38

29 of construction, renovation, excavation and/or demolition as described above, retained unlimited access to these work sites and directed all related construction, remodeling, excavating and demolition activities concerned therewith. 76) Plaintiff was exposed to asbestos-containing products at various work sites and other locations within the State of New York where construction, renovation, excavation and demolition of buildings and/or other structures was being performed, while Plaintiff was engaged in his/her occupational duties and responsibilities or while Plaintiff was otherwise lawfully upon at such work sites and locations. 77) Plaintiff sustained asbestos-related personal injuries as a consequence of his/her exposure to asbestos, asbestos-containing products and machinery at such locations described above. 78) Plaintiff s injuries resulted from Defendant contractor(s)' breach of common law and statutory obligations including, inter alia, violations of The New York State Labor Law Sections 200, 240 and 241 as a consequence of Plaintiff s exposure to and inhalation of dust from asbestos and asbestos-containing products delivered to, installed, used or employed at those work sites owned, operated, directed and controlled by the Defendant contractor(s). 79) The above-described exposures were caused solely and wholly by the acts and /or omissions of the Defendant contractor(s), their agents, servants, employees and assigns as a consequence of their negligent, careless and reckless ownership, management, direction and control of the various premises and work sites where construction, renovation, demolition and excavation activities, as above described, occurred. 80) Defendant contractor(s) were negligent, careless and reckless in inter alia: (1) permitting Plaintiff to work under dangerous and unsafe conditions; (2) requiring the Plaintiff to work in areas in which he/she was exposed to asbestos products; (3) in permitting and allowing the of 38

30 dangerous conditions to remain in working areas and other locations; (4) in failing to warn the Plaintiff and other members of the work force of the dangerous conditions; (5) in failing to provide a safe place to work; (5) in failing to follow or implement the usual workplace safety customs and procedures; (6) in failing to abide by, inter alia, Sections 200, 240 and 241 of the Labor Law; and (7) in otherwise acting without due regard for, and in reckless disregard of, the safety, well-being and health of the Plaintiff and the work force in general. 81) Defendant contractor(s) are strictly liable for the injuries sustained by the Plaintiff. WHEREFORE, the Plaintiff claims: Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, SIXTH CAUSE OF ACTION Paragraphs 1 through 81 are incorporated herein as if set forth in full. 82) Plaintiff repeats and reiterates the prior allegations of this complaint as if alleged more fully below: 83) Plaintiff, was exposed to asbestos-containing products, materials and machines and equipment calling for the use of and/or installation of asbestos-containing products while working at certain facilities owned by certain named Defendants (hereinafter "Premises Owners"). 84) Each Premises Owner, at all times relevant to this Complaint, has been either the operator and/or the manager and/or the owner and occupier of various facilities within the State of of 38

31 New York as more fully specified in individual pleadings. 85) Plaintiff was exposed to asbestos and asbestos-containing materials while he/she was an invitee at such Defendant Premises Owners' New York State facility or facilities during all relevant time periods. Said facilities were defective in that the asbestos and asbestos-containing materials in Defendants' facilities created an unreasonable risk of harm to the Plaintiff and other persons thereupon. The defective conditions of the facilities were a proximate cause of the Plaintiffs asbestos-related injuries and d a m a g e s. 86) Said Premises Owners are liable to Plaintiff for their respective failure to exercise reasonable care to protect Plaintiff from the foreseeable dangers associated with exposure to asbestos. 87) Defendants Premises Owners as the premises operators and/or managers and/or owners and occupiers and/or custodians of their respective premises, had a non-delegable duty to keep the premises safe for invitees and others such as the Plaintiff herein. 88) Said Defendant Premises Owners knew or should have known of the unreasonable risk of harm inherent in exposure to asbestos and asbestos-containing materials but failed to protect Plaintiff from said risk of h arm. 89) Defendant Premises Owners' failure to protect Plaintiff from known and/or foreseeable dangers constitutes negligence which such negligence is/was a proximate cause of Plaintiffs asbestos-related injuries and damages. 90) By reason of the foregoing Plaintiff has sustained grievous personal and physical injuries, physical and emotional pain and suffering, all as more fully described herein and has been damaged as against each Defendant. 91) Each Manufacturer Defendant corporation or its predecessor-in-interest, is, or at times of 38

32 material hereto, has been engaged in the mining, processing and/or manufacturing, sale and distribution of asbestos or asbestos-containing products, or machinery requiring or calling for the use of asbestos or asbestos-containing products. 92) Plaintiff would show that or a period of many years, they worked with and/or were exposed to asbestos-containing products and or machinery requiring or calling for the use of asbestos or asbestos-containing products while working in various shipyards, steel mills, refineries, paper mills, chemical plants and/or other facilities in the United States. Plaintiff will show that they have been exposed, on numerous occasions, to asbestoscontaining products and/or machinery requiring or calling for the use of asbestos or asbestos-containing products and/or sold by Manufacturer Defendants and, in so doing, have inhaled great quantities of asbestos fibers. Further Plaintiff alleges, as more specifically set out below, that they have suffered injuries proximately caused by their exposure to asbestos-containing products designed, manufactured and sold by Manufacturer Defe nda nts. 93) Plaintiff alleges that Plaintiff was exposed to asbestos, asbestos-containing products, or machinery requiring or calling for the use of asbestos or asbestos-containing products in his occupation. In that each exposure to such products caused or contributed to Plaintiffs injuries, Plaintiff invokes the doctrine of joint and several liability and states that it should be applied to each Defendant herein. 94) This cause of action is governed by Substantive Law of Admiralty and is, therefore, non-removable. WHEREFORE, the Plaintiff claims: of 38

33 Compensatory damages in the amount of $20,000,000.00; and Punitive damages in the amount of $20,000, SEVENTH CAUSE OF ACTION The plaintiff, DONA FISCHER spouse of the plaintiff, BENJAMIN FISCHER hereby realleges and incorporates by reference to paragraphs 1 through 94 as if realleged and set forth in full. 95) As a direct and proximate result of the foregoing acts of the defendants, the plaintiff/spouse, DONA FISCHER, 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. WHEREFORE, the plaintiff claims: Compensatory damages in the amount of $5,000, WHEREFORE, Plaintiffs demand judgment against the defendants in the First Cause of Action in the sum of Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty Million ($20,000,000.00) Dollars in Punitive Damages; in the Second Cause of Action in the sum of Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty Million ($20,000,000.00) Dollars in Punitive Damages; in the Third Cause of Action in the sum of Twenty Million ($20,000,000.00) Dollars in Compensatory Damages and Twenty Million ($20,000,000.00) Dollars in Punitive Damages; in the Fourth Cause of Action in the sum of of 38

34 Twenty Million ($20,000,000.00) in Compensatory Damages and Twenty Million ($20,000,000.00) in Punitive Damages; in the Fifth Cause of Action in the sum of Twenty Million ($20,000,000.00) in Compensatory Damages and Twenty Million ($20,000,000.00) in Punitive Damages; in the Sixth Cause of Action in the sum of Twenty Million ($20,000,000.00) in Compensatory Damages and Twenty Million ($20,000,000.00) in Punitive Damages; and in the Seventh Cause of Action in the sum of Five Million ($5,000,000.00) in Compensatory Damages. Dated at New York, New York, this _7 day of September, 2016 Yours, etc. GORI, JULIAN & ASSOCIATES, P.C., By: /s/michael J. Jarosz Michael J. Jarosz, # Attorneys for Plaintiffs 360 Lexington Avenue, 20 th Floor New York, NY Phone: (646) Fax: (646) & By: /s/ Randy L. Gori Randy L. Gori, # Barry Julian # Attorneys for Plaintiff 156 N. Main St. Edwardsville, IL Phone: (618) Fax: (618) of 38