SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------- --- - - - -- -- -- --- -- --- --- -- X Index No. 190271-2016 DONA FISCHER, as Executrix of the Estate of BENJAMIN FISCHER, Deceased SUMMONS AND FIRST AMENDED COMPLAINT Plaintiff, -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 Plaintiff resides at Palisades Park, NJ 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, ) I 1 of 14
GOODYEAR TIRE 4 RUBBER CO., ) GOULDS PUMPS (IPG), INC., ) HERCULES, INC., ) HONEYWELL INTERNATIONAL, INC., ) INDUSTRIAL HOLDINGS CORPORATION, ) f/ida 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. To the above named Defendants: YOU ARE HEREBY SUMMONED, to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons to serve a Notice of Appearance, on the Plaintiffs Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State ofnew York); and in case of your failure to appear 2 2 of 14
or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: April 24, 2018 Defendants address: Gori Julian 4 Associates, P.C. See attached rider Attorneys for the Plaintiffs 360 Lexington Avenue, 20th Floor New York, NY 10017 3 3 of 14
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - ----------------------------- - - - - - - x Index No. 190271-2016 DONA FISCHER, as Executrix of the Estate of BENJAMIN FISCHER, Deceased -against- Plaintiff, FIRST AMENDED 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., ) 4 of 14
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 5 5 of 14
FIRST AMENDED COMPLAINT Plaintiff(s), by their attorneys, with reference to the Complaint filed in this action on 9/7/2016, which set forth claims for personal injuries based on theories of negligence, breach of express and implied warranty and strict product liability, due to asbestos exposure, hereby amends said complaint in which the plaintiff adds an additional defendant and an additional cause of action pursuant to NEW YORK CPLR 3025, by this "First Amended Complaint for Wrongful Death", incorporating each and every claim, allegation, paragraph and request for relief in the original complaint which sets forth, among others, claims for personal injuries and which has been served by Plaintiff's counsel on all defense counsel to read as follows: FOR THE EIGHTH CAUSE OF ACTION FOR WRONGFUL DEATH DAMAGES BASED ON NEGLIGENCE, BY PLAINTIFF(S) INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF THE DECEDENT The plaintiff(s), DONA FISCHER, as EXECUTRIX for the estate of BENJAMIN FISCHER, hereby reiterates and realleges each and every allegation contained in paragraphs "1" through "95" of the original complaint, inclusive with the same force and effect as if hereinafter set forth at length. 96) As a proximate result of the exposure to the asbestos-containing product of these defendants, and the unavoidable and necessary inhalation of said asbestos, the plaintiff's decedent developed an asbestos related disease which resulted in his death. 97) During the scope and course of plaintiff's decedent's employment, the plaintiff's decedent was necessarily and unavoidably exposed to and did inhale asbestos dust and/or asbestos fibers emanating from the asbestos-containing products and/or equipment of the defendants. 98) The defendants, knew or should have known that the asbestos products and/or equipment and materials which they were providing were inherently dangerous beyond the scope 6 6 of 14
contemplated by the ordinary user or handler who would come into contact with these products. 99) The defendants failed to communicate any warnings concerning the dangers of the use of said products and/or equipment and materials to those persons using, handling, or coming into contact with these products. 100) The defendants failed to warn and failed to provide adequate instructions of any safe handling methods which should have been utilized by users, handlers or other persons who were reasonably and foreseeably known to come into contact with their asbestoscontaining products and/or equipment and materials. 101) The defendants failed to investigate and/or test for the hazards of asbestos products and materials. 102) To the extent that some defendants may have inquired as to the hazards of said materials, the defendants failed to relate whatever knowledge they may have had to the users and consumers of their asbestos-containing products. 103) The defendants failed to develop, make available and/or provide non-hazardous materials which could have been used for the same purpose as their asbestos-containing products and/or equipment. 104) The defendants failed to design asbestos-containing products in such a fashion as to prohibit the release of airborne inhalable asbestos dust and/or fibers. 105) As a direct result of working with or near the asbestos materials supplied by the defendants and the unavoidable and necessary inhalation and ingestion of said asbestos fibers, plaintiff's decedent developed an asbestos related disease and subsequently died. He suffered and endured great pain and mental anguish during repeated hospitalizations, he was required to undergo extensive medical treatment, care and expense, and suffered a loss of enjoyment of his life. defendants' 106) The death of plaintiffs decedent was proximately caused by the negligent actions in that they negligently designed, processed, manufactured, packaged, distributed, delivered, installed and/or sold the asbestos-containing products and/or equipment to which decedent was exposed. Additionally, the defendants negligently failed to render warnings, advice, give instruction and/or information to the decedent so that he may have made an adequate and informed judgment as to the use of the products. 107) The defendants totally failed to use any reasonable care under all the circumstances defendants' and actions were a proximate cause of plaintiff's decedent's death. 108) The plaintiff's decedent left his surviving next kin, who have sustained pecuniary damages, including loss of the plaintiff's decedent's income, support, services, protection, 7 7 of 14
care, assistance, guidance, counsel, consortium and advice, mental anguish, funeral and burial expenses, and other just damages. 109) By reason of the aforesaid wrongful death, the plaintiff's decedent's next kin lost advice, guidance, inheritance, contribution and income. 110) By reason of the foregoing, plaintiff(s) as Executrix of the Estate of the decedent has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A NINETH CAUSE OF ACTION FOR WRONGFUL DEATH DAMAGES BASED ON STRICT LIABILITY BY PLAINTIFF INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF THE DECEDENT 111) Plaintiff repeats, reiterates and alleges each and every allegation contained in paragraphs "1" "110" through with the same force and effect as if fully set forth herein at length. 112) At all relevant times, defendants, as part of their business, manufactured, designed, supplied, developed, fashioned, packaged, distributed, delivered, installed, sold and/or otherwise placed asbestos products and materials into the stream of commerce in a defective, unsafe and inherently dangerous condition and the products and materials were expected to and did reach users, handlers and persons coming into contact with the said products without substantial change in the condition in which they were sold. 113) The asbestos-containing products and/or equipment sold by the defendants did not contain a warning and information concerning the dangers to persons using, handling or coming into contact therewith. 114) The asbestos-containing products and/or equipment sold by the defendants did not contain adequate and correct warnings and instructions of safety precautions to be observed by users, handlers and persons who would reasonably and foreseeably come into contact with said products and/or equipment. 115) At all relevant times, the asbestos products and/or equipment and materials were used and employed for the purpose for which they were manufactured, supplied, developed, designed, fashioned, packaged, distributed, delivered, sold and intended to be used and in a manner foreseeable to the defendants. 116) Plaintiff's decedent's death and the resulting damages were caused by the defective, dangerous and unsafe condition of the asbestos products and/or equipment and materials whichthe defendants manufactured, supplied, developed, fashioned, packaged, distributed, installed, delivered, sold and/or otherwise placed in the stream of commerce. 8 8 of 14
117) Defendants are strictly liable to plaintiff for plaintiff's decedent's death resulting from said defective products. 118) By reason of the foregoing, defendants are strictly liable to plaintiff(s) for plaintiff's decedent's death, resulting from said defective products, as Executrix of the Estate of the decedent as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. AS AND FOR A TENTH CAUSE OF ACTION FOR WRONGFUL DEATH DAMAGES BASED ON BREACH OF WARRANTY BY PLAINTIFF INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DECEDENT 119) Plaintiff repeats, reiterates and alleges each and every allegation contained in paragraphs "1" through "118" with the same force and effect as if hereinafter set forth at length. 120) Defendants breached said warranties in that said asbestos materials and products and/or equipment were not of merchantable quality, fit and safe for the purposes for which they were manufactured, designed, supplied, developed, fashioned, distributed, sold, intended and used. 121) The resulting death of plaintiffs decedent was caused by the breach of said warranties in that said asbestos materials and products and/or equipment were not of merchantable quality, fit and safe for the purpose for which they were manufactured, designed, supplied, developed, fashioned, distributed, sold, intended and used. 122) The resulting death of plaintiff's decedent was caused by the breach of said warranties by the defendants. 123) Plaintiff's decedent was and is still survived by his wife and children, who have sustained damages, including loss of decedent's income, support, services, protection, care, assistance, guidance, counsel, consortium and advice, mental anguish, funeral and burial expenses, and other just damages. 124) That by reason of the foregoing, plaintiff(s) as Executrix of the Estate of the decedent has been damaged as against each defendant in the sum of TEN MILLION DOLLARS ($10,000,000.00) in compensatory damages and TEN MILLION DOLLARS ($10,000,000.00) in punitive damages. 9 9 of 14
WHEREFORE, the plaintiff(s) demand judgment against the defendants jointly and severally on each cause of action with interest together with costs and disbursements in this action. Dated at New York, New York, this 24 April 2018. Yours, etc. Jas odrinsky, q. GORI JULIAN ASSOCIATES, P.C. Attorney for Plaintiff(s) 360 Lexington Avenue, 20* 20 Floor New York, New York 10017 212.646.8021 Jason Hodrinsky, Esq. 10 10 of 14
ATTORNEY'S VERIFICATION The undersigned, an attorney admitted to practice in the Courts of the State of New York, shows that: Affirmant is associated with the attorney of record for plaintiff in the within action; Affirmant has read the foregoing FIRST AMENDED COMPLAINT and knows the contents thereof to be true to Affirmant's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, Affirmant believes those matters to be true. The grounds of Affirmant's belief as to all matters not stated upon his knowledge are based upon information contained in the file maintained in Affirmant's office. This verification is made by Affirmant and not by the plaintiff because the plaintiffs reside outside the county wherein Affirmant maintains his office. The undersigned affirms that the foregoing statements are true under the penalties of perjury. M. Hodrin, Esq. Dated: April 24, 2018 Hodr' Jasd.. Hodr',, Esq. ll 11 of 14
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------x Index No. 190271-2016 IN RE NEW YORK CITY ASBESTOS LITIGATION -x This Document Relates To: AFIRMATION OF SERVICE DONA FISCHER, as executrix of the Estate of BENJAMIN FISCHER, Deceased v. AMERICAN BILTRITE, INC., et al -------------......---x Jason Hodrinsky, Esq., an attorney duly admitted to practice law before all of the courts in the State of New York, hereby affirms that on 9/22/2016, I served the within NEW YORK LONG FORM COMPLAINT upon the defendants listed in the enclosed service rider by depositing a true copy thereof in an enclosed post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within the State of New York. NHodrins Defendants address: See GORI JULIAN & SSOCIATES attached rider 360 Lexington 208ª Avenue, Floor New York, New York 10017 (646) 609-8021, Esq. 12 12 of 14
SERVICE RIDER FOR BENJAMIN FISCHER, Deceased As of 4/24/2018 Burnham LLC Andrew F. Bain, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP 88 Pine Street, 24th Floor New York, NY 10005 P: 212-483-949 F: 212-483-9129 E: abain@mdme-law.com General Electric Company Michael Tanenbaum, Esq. Tanenbaum Keale LLP 1085 Raymond Blvd, One Newark Center, F1 16 Newark, NJ 07102 P: 973-242-0002 F: 973-242-8099 E: mtanenbaum@tktrial.com The Sherwin-Williams Company, Individually and as Successor-in-Interest to Dutch Boy Group Robert Brown, Esq. Gibbons P.C. One Pennsylvania Plaza, New York, NY 10119 P: 212-613-2000 F: 212-290-2018 E: rbrown@gibbonslaw.com 37* Floor Sterling Fluid Systems (USA), LLC, f/k/a Peerless Pump Company Christopher Hannon, Esq. Kelley Jasons McGowan Spinelli Hanna & Reber, LLP 120 Wall Street, 30* Floor New York, NY 10005 P: 212-344-7400 ~hk' F: 212-344-7402 E:. channan@kjmsh.com Under Glass Mfg. Corp., Individually and as Successor-in-Interest to Lord & Burnham John C. McGuire, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP 1300 Mt. Kimble Avenue, P.O. Box 2075 Morristown, NJ 07962 P: 973-425-4223 13 13 of 14
F: 973-425-0161 E: jmeauire@mdme-law.com Uniroyal, Inc. Norman Senior, Esq. Greenfield, Stein 2 Senior 600 Third Avenue, 11th Floor New York, NY 10016 P: 212-818-9600 F: 212-818-1264 E: nsenior@gss-law.com Homasote Company Don Pugliese, Esq. McDermott, Will & Emery 340 Madison Avenue New York, NY 10017 P: 212-547-5400 F: 212-547-5444 E: dpugliese@mwe.com. 14 14 of 14