FILED: NEW YORK COUNTY CLERK 04/11/2014 10/30/2014 12:42 PM INDEX NO. 190087/2014 NYSCEF DOC. NO. 12 43 RECEIVED NYSCEF: 04/11/2014 10/30/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK COUNTY ASBESTOS LITIGATION WALTER MILLER, -against- Plaintiff(s), ATK LAUNCH SYSTEMS GROUP, individually and successor in interest to the Friction Division of Thiokol Corporation, et al., Index No.: 190087/14 VERIFIED ANSWER ON BEHALF OF DEFENDANT McCORD CORPORATION Defendant(s). Defendant, McCORD CORPORATION, by its attorneys, GOLDBERG SEGALLA LLP, for its verified answer to the summons and verified complaint ( Complaint ) herein states: 1. Defendant, McCord Corporation, denies knowledge or information sufficient to form a belief as to the allegations as they pertain to this answering defendant contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 of the Complaint. 2. Defendant, McCord Corporation, denies each and every allegations contained in paragraphs 26 and 27 of the Complaint, and refers all questions of law to this Court for determination at the time of trial, and Defendant McCord Corporation denies any knowledge or information sufficient to form a belief as to the truth of each and every allegations contained in Paragraphs 26 and 27 of the Complaint as it pertains to remaining defendants in the Complaint. - 1 -
3. Defendant, McCord Corporation, denies each and every allegation of the Complaint and of the NYCAL KARST & von OISTE, LLP STANDARD ASBESTOS COMPLAINT FOR PERSONAL INJURY No. 1 not heretofore specifically admitted or denied. First Affirmative Defense 4. That defendant, McCord Corporation, denies any negligence, culpable conduct or liability on its part, but if said defendant is ultimately found to be liable to plaintiff, then, pursuant to Article 16 of the Civil Practice Law & Rules, it shall only be liable for its equitable share of plaintiff s recovery since any liability which will be found against it will be insufficient to impose joint liability. Second Affirmative Defense 5. To the extent that the Complaint herein and the claims made by plaintiff were not commenced within the time limited by law, the Complaint is barred by the applicable statute of limitations. Third Affirmative Defense 6. That to the extent that plaintiff has failed and neglected to maintain this action in a swift, diligent and timely fashion, the plaintiff s Complaint is barred by laches. Fourth Affirmative Defense 7. Plaintiff has failed to plead the claims of fraud and conspiracy with proper specificity and, as such, all claims premised on fraud and conspiracy must be dismissed. Fifth Affirmative Defense 8. The Complaint and each and every allegation considered separately fail to state any cause of action against this answering defendant upon which relief can be granted. - 2 -
Sixth Affirmative Defense 9. That the injuries and/or illnesses to plaintiff, if any, are governed by the applicable Workers Compensation statutes and shall have constituted an industrial disability and plaintiff s exclusive remedy, if any, shall lie within the terms and ambit of said statutes. Seventh Affirmative Defense 10. That the injuries and/or illnesses, if any, sustained by plaintiff was caused or contributed by the fault, neglect and want of care on the part of plaintiff or on the part of others for whose acts or omissions or breach of legal duty McCord Corporation is not liable. Eighth Affirmative Defense 11. In the event that plaintiff used the products(s) designated in the Complaint, said product(s) was (were) misused or improperly used, which misuse or improper use proximately caused and contributed, in whole or in part, to the claims alleged by plaintiff in the Complaint. Ninth Affirmative Defense 12. Upon information and belief, that if the plaintiff sustained any of the injuries, losses and damages complained of in the Complaint, such injuries, losses and damages were caused or brought about, in whole or in part, by the negligence, carelessness, assumptions of risks, fault or other culpable conduct of plaintiff. Upon information and belief, that any recovery herein by the plaintiff, if any, must be diminished and reduced in the proportion which the said culpable conduct of the plaintiff bears to the alleged culpable conduct of the defendant, if any, which allegedly caused said injuries, losses or damages. Tenth Affirmative Defense 13. Insofar as the Complaint and each cause of action considered separately allege a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, - 3 -
the amount of damages recoverable thereon must be diminished by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damages. Eleventh Affirmative Defense 14. Upon information and belief, that insofar as the plaintiff relies upon allegations of negligence, breaches of warranties, fraudulent representations and violations of obligations of strict product liability as against McCord Corporation prior to September, 1975, said causes of action fail to state facts sufficient to constitute causes of action as against McCord Corporation by reason of the failure to allege the freedom of the plaintiff from contributory negligence or fault; and that if plaintiff sustained the injuries, losses and other damages complained of in the Complaint, they were caused and brought about, in whole or in part, by the negligence, carelessness, assumption of risk, fault or other culpable conduct of plaintiff. Twelfth Affirmative Defense 15. While this answering defendant denies the allegations of plaintiff with respect to negligence, statutory liability, strict liability, injury and damages, to the extent that plaintiff may be able to prove the same, they were the result of intervening and/or interceding acts of superseding negligence on the part of third parties over which this answering defendant had neither control nor right of control. Thirteenth Affirmative Defense 16. That to the extent that plaintiff alleges rights hereunder assertedly derived from oral warranties or undertakings on the part of McCord Corporation, the Complaint is barred by the applicable statute of frauds. - 4 -
Fourteenth Affirmative Defense 17. If plaintiff used any products of McCord Corporation, the answering defendant alleges upon information and belief that said products were produced pursuant to government specifications and as such, McCord Corporation is relieved of any responsibility for the injuries which plaintiff claims. Fifteenth Affirmative Defense 18. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to plaintiff, then, this answering defendant requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to the plaintiff, his co-workers and/or employers bears to the conduct which caused the alleged damages or injuries. Sixteenth Affirmative Defense 19. That the injuries and/or illnesses to plaintiff, if any, arose in whole or in part, out of the risks, hazards and dangers incident to the occupation of said plaintiff, all of which were open, obvious and well known to plaintiff, and the action is barred by virtue of plaintiff s assumption of the risks thereof. Seventeenth Affirmative Defense 20. That to the extent that McCord Corporation conformed to the scientific knowledge and research data available throughout the industry and scientific community, McCord Corporation shall have fulfilled its obligations, if any, herein, and plaintiff s claims shall be barred, in whole or in part. - 5 -
Eighteenth Affirmative Defense 21. Upon information and belief, McCord Corporation conformed to the scientific knowledge and data available in the industry and fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashion, without recklessness, malice or wantonness, and the plaintiff may not recover herein any exemplary damages or punitive damages against McCord Corporation. Nineteenth Affirmative Defense 22. That the cause of action pleaded in the Complaint insofar as it asserts an alleged cause of action for express and/or implied warranties and the alleged breaches thereof, as against McCord Corporation, is legally insufficient by reason of the failure to allege privity of contract and/or privity of warranties between the plaintiff and McCord Corporation. Twentieth Affirmative Defense 23. To the extent that any breach of warranty is alleged, plaintiff has failed to give proper and prompt notice of any such breach of warranty to McCord Corporation. Twenty-First Affirmative Defense 24. Plaintiff did not directly or indirectly purchase any asbestos-containing products or materials from this answering defendant and plaintiff neither received nor relied upon any representation or warranty allegedly made by this answering defendant. Twenty-Second Affirmative Defense 25. That to the extent that the cause pleaded by plaintiff herein fails to accord with the Uniform Commercial Code, including, but not limited to 2-725 thereof, plaintiff s Complaint is barred. - 6 -
Twenty-Third Affirmative Defense 26. That to the extent that any of the products for which liability is charged herein to McCord Corporation, which is specifically denied, were modified, assembled, altered, quantified or in any way materially varied, which same may be casually related to the claims of plaintiff, the actions of plaintiff is barred herein. Twenty-Fourth Affirmative Defense 27. Upon information and belief, that insofar as the plaintiff alleges, as against McCord Corporation, any willful and wanton misconduct, and that if knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which McCord Corporation denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred by the one-year statute of limitations. Twenty-Fifth Affirmative Defense 28. That to the extent that the use, application, employment, surrounding conditions, safety precautions and other circumstances attendant upon the material allegedly used by plaintiff was determined, controlled, selected or limited by his employer or by others for whose acts, omissions or breach McCord Corporation is not liable, the Complaint is barred, in whole or in part. Twenty-Sixth Affirmative Defense 29. Plaintiff s claims are barred by the doctrine of res judicata and/or collateral estoppel. - 7 -
Twenty-Seventh Affirmative Defense 30. If plaintiff used any products of McCord Corporation, upon information and belief, McCord Corporation alleges that said products were used improperly, and without proper safety protection which was available from plaintiff s employer(s). Twenty-Eighth Affirmative Defense 31. Plaintiff s employer(s) was a sophisticated purchaser upon which devolved all responsibility for the use of products referred to in plaintiff s Complaint. Twenty-Ninth Affirmative Defense 32. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and purpose described by plaintiff, therefore, there was no duty for McCord Corporation to know of such character or nature or to warn plaintiff or others similarly situated. Thirtieth Affirmative Defense 33. Plaintiff s cause of action for exemplary and punitive damages is barred because such damages are not recoverable or warranted in this action. Thirty-First Affirmative Defense 34. The imposition of punitive damages on the facts alleged in the Complaint would violate the due process clauses of the Constitutions of the United States and the State of New York. Thirty-Second Affirmative Defense 35. The imposition of punitive damages on the facts alleged in the Complaint would violate the excessive fines clause of the Constitution of the State of New York. - 8 -
Thirty-Third Affirmative Defense 36. The imposition of punitive damages on the facts alleged in the Complaint is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution. Thirty-Fourth Affirmative Defense 37. The imposition of punitive damages on the facts alleged in the Complaint is barred by the ex post facto clause of the United States Constitution. Thirty-Fifth Affirmative Defense 38. The imposition of punitive damages on the facts alleged in the Complaint is barred by the United States Constitution and by the Constitution of the State of New York. Thirty -Sixth Affirmative Defense 39. The action cannot proceed in the absence of all parties who should be named in accordance with CPLR 1001. Thirty -Seventh Affirmative Defense 40. In the event that the plaintiff(s) recover(s) damages in this action, which have been paid or are payable by a collateral source, this answering defendant will seek a collateral source offset pursuant to Article 45 of the CPLR. Thirty -Eighth Affirmative Defense 41. Plaintiff contributed to his illness by the use, either in whole or in part, of other substances, products, medications and drugs. To the extent that plaintiff used any tobacco products, any liability should be reduced by the extent of any use and/or injuries related thereto or caused thereby. - 9 -
Thirty-Ninth Affirmative Defense 42. Upon information and belief, the incident complained of in the Complaint and the alleged damages were caused by the culpable conduct of the remaining parties to this action. By reason of the foregoing, contribution should be awarded pursuant to Article 14 of the CPLR. Fortieth Affirmative Defense 43. Liability for non-economic loss is limited by the applicable provisions of the Article 16 of the CPLR. Forty-First Affirmative Defense 44. That in the event there has been a settlement between the plaintiff and any joint tortfeasor, then defendant hereby pleads and seeks the full benefit of 15-108 of the General Obligations Law, that plaintiff s claim against this answering defendant be reduced to the fullest extent permitted by 15-108 of the General Obligations Law. Forty-Second Affirmative Defense 45. Plaintiff does not have the legal capacity to sue and therefore does not have standing to commence or maintain this action. Forty-Third Affirmative Defense 46. This action is barred by the doctrine of judicial estoppel. Forty-Fourth Affirmative Defense 47. Upon information and belief, this Court lacks in personam jurisdiction in this matter by reason of improper service of process. Forty-Fifth Affirmative Defense 48. Upon information and belief, this Court lacks subject matter jurisdiction. - 10 -
Forty-Sixth Affirmative Defense 49. Upon information and belief, this Court lacks in personam jurisdiction. Forty-Seventh Affirmative Defense 50. McCord Corporation did not own, control, manufacture or distribute any alleged product to which plaintiff claims he was exposed. Forty-Eighth Affirmative Defense 51. McCord Corporation did not assume any liability for any entity that may have produced products to which plaintiff claims he was exposed. Forty-Ninth Affirmative Defense 52. McCord Corporation denies that plaintiff had any exposure to any asbestos product mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by McCord Corporation, and more particularly denies upon information and belief that McCord Corporation mined, processed, manufactured, supplied, developed, tested, fashioned, packaged, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Complaint herein. Fiftieth Affirmative Defense 53. McCord Corporation denies specifically that, during the periods of exposure alleged in the Complaint by the plaintiff, it mined, processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce a substantial and/or any percentage of the asbestos products to which plaintiff was caused to come into contact and which plaintiff was caused to breathe, inhale and - 11 -
digest and which thereby caused the plaintiff s injuries and resulting damages alleged in the Complaint herein. Fifty-First Affirmative Defense 54. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then, this answering defendant s share of such liability would be of such a de minimus amount as to make its contribution for damages negligible, and this answering defendant would be entitled to contribution, either in whole or in part, from codefendants. Fifty-Second Affirmative Defense 55. This answering defendant specifically denies that the asbestos products alleged in plaintiff s Complaint 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. Fifty-Third Affirmative Defense 56. To the extent that plaintiff relies on the New York Law L. 1986, C. 682, Section 4 as grounds for reviving or maintaining the action, said statute(s) is/are unconstitutional and deprive McCord Corporation of its constitutional rights and is wholly void and unenforceable. Fifty-Fourth Affirmative Defense 57. Proceeding in this matter without Johns-Manville, Unarco, Amatex, Pacor, Forty- Eight Insulations and/or Standard Insulations, Owens Corning, Pittsburgh Corning, A C and S, A.P. Green, and all other entities in bankruptcy relating thereto would be in violation of McCord Corporation s constitutional rights. - 12 -
Fifty-Fifth Affirmative Defense 58. If at the time of trial, it is shown that plaintiff used products manufactured, supplied, distributed or sold by the answering defendant, said products or a portion thereof were supplied to, by or on behalf of the United States Government, or if those products were supplied or sold by the United States Government, the answering defendant raises any immunity from suit or from liability as conferred by the United States Government, and specifically pleads the government contractor defense. Fifty-Sixth Affirmative Defense 59. The answering defendant incorporates and adopts by reference any and all other and/or additional defenses, raised or to be raised by any other party and expressly reserves the right to amend and supplement its defenses herein to assert additional defenses and to make further admission upon completion of further investigation and discovery. CROSS-CLAIM AGAINST CO-DEFENDANTS 60. If plaintiff was caused to sustain damage at the time and place set forth in the plaintiff s Complaint through any carelessness, recklessness and/or negligence other than that of plaintiff, including but not limited to, the manufacture and distribution of the asbestos product, breaches of warranty, 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 the co-defendants not represented by this answer. 61. If plaintiff should recover a judgment against this answering defendant, by operation of law or otherwise, it will be entitled to judgment, contribution and/or indemnity over and against the co-defendants not represented by this answer, their agents, servants and/or employees, by reason of their carelessness, recklessness and/or negligence for the amount of any - 13 -
such recovery, or a portion thereof, in accordance with the principals 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. action; WHEREFORE, McCord Corporation demands judgment as follows: A. Dismissing the Complaint, together with the costs and disbursements of this B. Determining the ultimate rights and responsibilities among the defendants; C. Granting judgment in favor of this answering defendant over and against the other defendants as set forth above for the amount of the recovery against this answering defendant or such part thereof as may be determined, together with costs and disbursements of this action; and D. Such other and further relief as the Court may deem just and proper. Dated: White Plains, New York April 9, 2014 GOLDBERG SEGALLA LLP Andrew J. Scholz, Esq. Attorneys for Defendant McCord Corporation 11 Martine Ave., Suite 750 White Plains, New York 10606 (914) 798-5400 - 14 -
VERIFICATION Andrew J. Scholz, being duly sworn herein says: 1. That he is one of the attorneys for the defendant, MCCORD CORPORATION, in this action; that he has read the answer to the Complaint and knows the contents thereof; that the same is true to his own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters, he believes them to be true. 2. That the reason this verification is made by the deponent and not by defendant, MCCORD CORPORATION, is that the answering defendant is outside the County of Westchester where the deponent maintains his office. 3. That the sources of deponent s knowledge and the grounds for his belief are from the correspondence with said defendant, MCCORD CORPORATION, and correspondence and conversations with the representatives of said defendant, and from reports of investigation of the said defendant s representatives, certain of which the correspondence and reports are now in deponent s possession. Dated: White Plains, New York April 9, 2014 Andrew J. Scholz - 15 -
CERTIFICATION ANDREW J. SCHOLZ, an attorney admitted to practice law in the Courts of the State of New York, affirms under the penalties of perjury, that the following statements are true: That I am the attorney for Defendant, MCCORD CORPORATION. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that presentation of Verified Answer of Defendant, MCCORD CORPORATION and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq. Dated: White Plains, New York April 9, 2014 Yours, etc., Andrew J. Scholz GOLDBERG SEGALLA LLP Attorneys for Defendant MCCORD CORPORATION 11 Martine Avenue, Suite 750 White Plains, New York 10606 (914) 798-5400 - 16 -