FILED NEW YORK COUNTY CLERK 06/07/2016 0433 PM INDEX NO. 190115/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF 06/07/2016 LYNCH DASKAL EMERY LLP 137 West 25th Street, 5th Floor New York, NY 10001 (212) 302-2400 Attorneys for Defendant Goodyear Canada Inc. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X IN RE NEW YORK CITY ASBESTOS LITIGATION NYCAL -------------------------------------------------------------------------X JERRY LEE HOFSTETTER, Index No. 190115/2016 Plaintiff(s), -against- GOODYEAR CANADA INC. s VERIFIED ANSWER AND CROSS-CLAIMS 3M COMPANY, et al., Defendants. -------------------------------------------------------------------------X Defendant Goodyear Canada Inc. ( Goodyear Canada ), by its attorneys, Lynch Daskal Emery LLP, for their answer to Plaintiff s verified complaint (the complaint ), alleges as follows THE PARTIES 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the complaint and refer all questions of law to the court. 2. Denies each and every allegation contained in paragraph 2 of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada and refers all questions of law to the court. 1 of 19
3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the complaint. 4. Paragraph 4 is not an allegation and no responsive pleadings are required. 5. Denies each and every allegation contained in paragraph 5 of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 6. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6 through 63, inclusive, of the complaint. 7. Denies each and every allegation contained in paragraph 64 of the complaint. 8. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 65 through 117, inclusive, of the complaint. 9. Denies the allegations contained in paragraphs 118 through 124, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 10. Denies each and every allegation contained in paragraph 125. AS TO THE FIRST CAUSE OF ACTION 11. With respect to paragraph 126 of the complaint, Goodyear Canada repeats, reiterates and reallages its responses to paragraphs 1 through 125, inclusive, of the complaint as if fully set forth herein. 12. Denies each and every allegation contained in paragraphs 127 through 134, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or 2 2 of 19
information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. AS TO THE SECOND CAUSE OF ACTION 13. With respect to paragraph 135 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraph 1 through 134, inclusive, of the complaint as if fully set forth herein. 14. Denies each and every allegation contained in paragraphs 136 through 138, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 15. Denies each and every allegation contained in paragraph 139 of the complaint and refers all questions of law to the Court. AS TO THE THIRD CAUSE OF ACTION 16. With respect to paragraph 140 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 139, inclusive, of the complaint as if fully set forth herein. 17. Denies each and every allegation contained in paragraphs 141 through 148, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 18. Denies each and every allegation contained in paragraph 149 of the complaint and refers all questions of law to the Court. 3 3 of 19
AS TO THE FOURTH CAUSE OF ACTION 19. With respect to paragraph 150 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 149, inclusive, of the complaint as if fully set forth herein. 20. Denies each and every allegation contained in paragraphs 151 through 152, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 21. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 153 of the complaint. 22. Denies each and every allegation contained in paragraphs 154 through 166, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada and refers all questions of law to the Court. 23. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 167. 24. Denies each and every allegation contained in paragraph 168 of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada and refers all questions of law to the Court. 4 4 of 19
AS TO THE FIFTH CAUSE OF ACTION 25. With respect to paragraph 169 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 168, inclusive, of the complaint as if fully set forth herein. 26. The allegations contained in paragraphs 170 through 176, inclusive, of the complaint do not pertain to Goodyear Canada. To the extent any allegations are intended to pertain to Goodyear Canada, they are denied. AS TO THE SIXTH CAUSE OF ACTION 27. With respect to paragraph 177 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 176, inclusive, of the complaint as if fully set forth herein. 28. Denies each and every allegation contained in paragraphs 178 through 186, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 29. Denies each and every allegation contained in paragraph 187 of the complaint. 30. Denies each and every allegation contained in paragraphs 188 through 191, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada and refers all questions of law to the Court. 31. Denies each and every allegation contained in paragraph 192 of the complaint and refers all questions of law to the Court. 5 5 of 19
AS TO THE SEVENTH CAUSE OF ACTION 32. With respect to paragraph 193 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 192, inclusive, of the complaint as if fully set forth herein. 33. Paragraph 194 is not an allegation and no responsive pleadings are required. 34. Denies each and every allegation contained in paragraphs 195 through 206, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. AS TO THE EIGHTH CAUSE OF ACTION 35. With respect to paragraph 207 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 206, inclusive, of the complaint as if fully set forth herein. 36. Denies each and every allegation contained in paragraphs 208 through 221, inclusive, of the complaint insofar as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada. 37. Paragraph 222 recites a legal conclusion to which no response is required. To the extent a response is required, denies these allegations and refers all questions of law to the Court. AS TO THE NINTH CAUSE OF ACTION 38. With respect to paragraph 223 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 222, inclusive, of the complaint as if fully set forth herein. 6 6 of 19
39. Denies each and every allegation contained in paragraphs 224 through 235, inclusive, of the complaint as they pertain to Goodyear Canada and denies knowledge or information sufficient to form a belief as to the truth of those allegations insofar as they pertain to persons or entities other than Goodyear Canada and refers all questions of law to the Court. AS TO THE TENTH CAUSE OF ACTION 40. With respect to paragraph 236 of the complaint, Goodyear Canada repeats, reiterates and realleges its responses to paragraphs 1 through 235, inclusive, of the complaint as if fully set forth herein. 41. Denies each and every allegation contained in paragraph 237 of the complaint. FIRST DEFENSE 42. The complaint fails to state a cause of action against Goodyear Canada. SECOND DEFENSE 43. Plaintiff s claims are barred by the applicable statutes of limitations and/or the statutes of limitations claimed to be applicable by Plaintiff are unconstitutional. THIRD DEFENSE 44. Plaintiff s claims are barred by the doctrine of laches. FOURTH DEFENSE 45. Plaintiff s claims are barred by the doctrine of estoppel. FIFTH DEFENSE 46. Plaintiff has waived all potential claims against Goodyear Canada. SIXTH DEFENSE 47. Plaintiff has failed to join as parties one or more persons or entities needed for just and complete adjudication of the matters in controversy. 7 7 of 19
SEVENTH DEFENSE 48. Plaintiff lacks capacity, standing or authority to bring this action, in whole or in part. EIGHTH DEFENSE 49. Plaintiff s claims are barred by the doctrines of res judicata and/or collateral estoppel. NINTH DEFENSE 50. This Court lacks personal jurisdiction over Goodyear Canada. TENTH DEFENSE 51. This Court lacks subject matter jurisdiction. ELEVENTH DEFENSE 52. The venue of this action is improper. TWELFTH DEFENSE 53. Plaintiff s speculative, uncertain and/or contingent damages have not accrued and are not recoverable. THIRTEENTH DEFENSE 54. One or more of Plaintiff s causes of action must be dismissed because Plaintiff has another action pending against Goodyear Canada for the same cause of action in another court. FOURTEENTH DEFENSE 55. Plaintiff executed a settlement agreement releasing and discharging Goodyear Canada from all claims arising out of Plaintiff s alleged injuries. 8 8 of 19
FIFTEENTH DEFENSE 56. Pursuant to Section 15-108 of the General Obligations Law, to the extent that Plaintiff has given a release or covenant not to sue or not to enforce a judgment to an alleged cotortfeasor of Goodyear Canada, Plaintiff s claims are reduced to the extent of any 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 greatest. SIXTEENTH DEFENSE 57. Pursuant to Section 15-108 of the General Obligations Law, to the extent Plaintiff have given a release or covenant not to sue or not to enforce a judgment to Goodyear Canada, Goodyear Canada is relieved from any liability to any other defendant, person or entity for contribution. SEVENTEENTH DEFENSE 58. Plaintiff s sole and exclusive remedy is under the Workers' Compensation Law of the State of New York. EIGHTEENTH DEFENSE 59. No acts or omissions of Goodyear Canada proximately caused any injuries and/or damages sustained by Plaintiff. NINETEENTH DEFENSE 60. Plaintiff Jerry Lee Hofstetter was not injured by exposure to Goodyear Canada's products. 9 9 of 19
TWENTIETH DEFENSE 61. Any injuries and/or damages sustained by plaintiff Jerry Lee Hofstetter are the result of the actions or inactions of persons or entities for whose conduct Goodyear Canada is not legally responsible. TWENTY-FIRST DEFENSE 62. Any injuries and/or damages allegedly sustained by plaintiff Jerry Lee Hofstetter were the direct and proximate result of unforeseen and unforeseeable negligent, grossly negligent, wanton or reckless acts, omissions or conduct of intervening third parties or the direct and proximate result of superseding causes. TWENTY-SECOND DEFENSE 63. The amount of damages, if any, recoverable by Plaintiff should be diminished by reason of plaintiff Jerry Lee Hofstetter s negligence, carelessness, or other culpable conduct. TWENTY-THIRD DEFENSE 64. Insofar as the complaint alleges a cause of action accruing before September 1, 1975, each such cause of action is barred by the culpable conduct attributable to Plaintiff, including contributory negligence and assumption of the risk. TWENTY-FOURTH DEFENSE 65. Plaintiff Jerry Lee Hofstetter s alleged injuries were caused by improper use and handling of the products at issue. TWENTY-FIFTH DEFENSE 66. Plaintiff Jerry Lee Hofstetter failed to take reasonable and/or adequate steps and precautions for the safe use of the products at issue. 10 10 of 19
TWENTY-SIXTH DEFENSE 67. Plaintiff Jerry Lee Hofstetter voluntarily assumed any risks associated with the use of or exposure to the products at issue. TWENTY-SEVENTH DEFENSE 68. Any injuries sustained by plaintiff Jerry Lee Hofstetter were proximately caused by plaintiff s unauthorized alteration of the products at issue. TWENTY-EIGHTH DEFENSE 69. Plaintiff Jerry Lee Hofstetter contributed to his/her injuries by the use of other substances, products, medications and/or drugs. TWENTY-NINTH DEFENSE 70. Plaintiff Jerry Lee Hofstetter s injuries were caused directly, solely, and proximately by sensitivities, idiosyncrasies, and other reactions peculiar to plaintiff and not found in the general public, of which Goodyear Canada neither knew, had reason to know, nor could have foreseen. THIRTIETH DEFENSE 71. Plaintiff Jerry Lee Hofstetter failed to mitigate or otherwise act to lessen or reduce the alleged injuries, disability and/or damages. THIRTY-FIRST DEFENSE 72. The negligence of plaintiff Jerry Lee Hofstetter and/or her employer(s) proximately caused the alleged injuries and damages and, even if plaintiff is entitled to damages, which Goodyear Canada specifically denies, Goodyear Canada is entitled to a set-off for all Workers' Compensation payments received by plaintiff. 11 11 of 19
THIRTY-SECOND DEFENSE 73. Plaintiff Jerry Lee Hofstetter s exposure, if any, to the products at issue was so minimal as to be insufficient to establish a reasonable degree of probability that the products caused the alleged injuries. THIRTY-THIRD DEFENSE 74. In accordance with CPLR 1601, Goodyear Canada's liability for non-economic loss is limited to its equitable share of the total liability for non-economic loss. THIRTY-FOURTH DEFENSE 49. Plaintiff failed to plead and/or is not entitled to an exception to the limitations on liability set forth in Article 16 of the CPLR. THIRTY-FIFTH DEFENSE 75. In accordance with CPLR 4545(c), Goodyear Canada is entitled to a set-off for any past or future costs or expenses incurred or to be incurred by Plaintiff for medical care, custodial care or rehabilitation services, loss of earnings or other economic loss, which has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source. THIRTY-SIXTH DEFENSE 76. Plaintiff Jerry Lee Hofstetter was not exposed to any asbestos-containing Goodyear Canada product. THIRTY-SEVENTH DEFENSE 77. The Goodyear Canada products, if any, to which it is alleged plaintiff Jerry Lee Hofstetter was exposed were neither defective nor unreasonably dangerous and posed no health hazard which could have produced Plaintiff s alleged injuries. 12 12 of 19
THIRTY-EIGHTH DEFENSE 78. At all times relevant, the state of the medical, scientific, and industrial knowledge, the state of the art, practice, and prevailing industry standards regarding asbestos-containing products was such that Goodyear Canada neither knew, nor had reason to know, nor could have known of any foreseeable or significant risk of harm to Plaintiff in the normal and expected use of the products at issue. THIRTY-NINTH DEFENSE 79. Any injuries and/or damages sustained by plaintiff Jerry Lee Hofstetter resulted from plaintiff Jerry Lee Hofstetter s alleged use of or exposure to asbestos or asbestos-containing products manufactured and sold in strict compliance with mandatory specifications established by persons or entities other than Goodyear Canada, including, without limitation, agencies, agents and departments of the United States, which persons or entities, at the time of such manufacture and sale, had knowledge equal to or greater than that of Goodyear Canada concerning the properties and characteristics of asbestos and asbestos-containing products. FORTIETH DEFENSE 80. Plaintiff s claims are barred by the terms of Goodyear Canada's limited warranty. FORTY-FIRST DEFENSE 81. Plaintiff Jerry Lee Hofstetter was reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. FORTY-SECOND DEFENSE 82. Plaintiff Jerry Lee Hofstetter s exposure, if any, to the products at issue was so minimal as to be insufficient to establish to a reasonable degree of certainty or probability that the products are capable of causing injury to plaintiff Jerry Lee Hofstetter. 13 13 of 19
FORTY-THIRD DEFENSE 83. Timely and/or proper notice was not given to Goodyear Canada of any alleged breach of warranty. FORTY-FOURTH DEFENSE 84. There was no privity of contract between Plaintiff and Goodyear Canada. FORTY-FIFTH DEFENSE 85. To the extent that Plaintiff s claims are based on an alleged breach of warranty, Plaintiff did not rely on any such warranty. FORTY-SIXTH DEFENSE 86. Any oral warranties upon which Plaintiff allegedly relied are inadmissible under the Statute of Frauds. FORTY-SEVENTH DEFENSE 87. Plaintiff s claims for exemplary or punitive damages are barred because such damages are not recoverable or warranted in this action. FORTY-EIGHTH DEFENSE 88. Goodyear Canada s conduct was not reckless, malicious, willful, or grossly negligent and, consequently, Plaintiff are not entitled to exemplary or punitive damages. FORTY-NINTH DEFENSE 89. Plaintiff s claims for punitive damages are barred by the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the New York State Constitution. 14 14 of 19
FIFTIETH DEFENSE 90. Plaintiff s claims for punitive damages are barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article 1, Section 6 of the New York State Constitution. FIFTY-FIRST DEFENSE 91. Plaintiff s claims for punitive damages are barred by the ex post facto clause of Article 1, Section 10, of the United States Constitution. FIFTY-SECOND DEFENSE 92. Plaintiff s claims for punitive damages are barred by the proscriptions of the Eighth Amendment to the United States Constitution and Article 1, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. FIFTY-THIRD DEFENSE 93. To the extent the law of any other jurisdiction is deemed applicable to this action, Plaintiff s demand for punitive damages is barred by the applicable proscriptions of the constitution of such jurisdiction. FIFTY-FOURTH DEFENSE 94. Plaintiff s claim for collective liability is barred because all or a substantial share of the market of all potential tortfeasors are not before the Court. FIFTY-FIFTH DEFENSE 95. Plaintiff s claim for collective liability is barred because persons or entities are in no better position than Plaintiff to identify the manufacturers of the products to which Plaintiff were exposed. 15 15 of 19
FIFTY-SIXTH DEFENSE 96. Plaintiff s claim for collective liability is barred because the products at issue are not generically similar. FIFTY-SEVENTH DEFENSE 97. Plaintiff failed to plead fraud with requisite particularity. FIFTY-EIGHTH DEFENSE 98. Plaintiff s claim for premises liability is barred because Goodyear Canada did not exercise control or supervise plaintiff s Jerry Lee Hofstetter s work at any facility. FIFTY-NINTH DEFENSE 99. Plaintiff s claim under Section 240 of the Labor Law, commonly known as "The Scaffold Law," is not applicable because Plaintiff do not allege a gravity-related injury. SIXTIETH DEFENSE 100. Plaintiff s claim under Section 241 of the Labor Law is not applicable because Goodyear Canada has not violated any safety regulation that imposes a specific course of conduct. SIXTY-FIRST DEFENSE 101. Plaintiff s claims under Sections 240 and 241 of the Labor Law should be dismissed because Goodyear Canada was not an owner, contractor or agent of an owner or contractor to which Sections 240 and 241 apply. SIXTY-SECOND DEFENSE 102. Plaintiff s claims are barred by the encanada controversy doctrine. SIXTY-THIRD DEFENSE 103. All defenses which have been or will be asserted by other persons or entities in this action are adopted and incorporated by reference as if fully set forth herein. In addition, 16 16 of 19
Goodyear Canada will rely upon any and all other further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional defenses. CROSS-CLAIMS 104. In the event Plaintiff recovers a judgment against Goodyear Canada, Goodyear Canada is entitled to contribution and/or indemnity from and judgment over as against the other persons or entities. 105. Goodyear Canada denies each and every material allegation contained in the cross-claims insofar as they pertain to Goodyear Canada. 106. Goodyear Canada is without knowledge or information sufficient to form a belief as to the truth of all allegations contained in the cross-claims that are not directed to Goodyear Canada. 107. Goodyear Canada refers all questions of law to the Court. 108. Any injuries, damages, or losses sustained by Plaintiff, if they were not caused by reason of the negligence, carelessness, want of care, or other culpable conduct on the part of Plaintiff, were caused by carelessness, recklessness, acts, omissions, breaches of contract, breaches of statutory duties, breaches of warranty, strict liability, nuisance, trespass, and/or other culpable conduct on the part of other named defendants and third party defendants now or hereafter named, and, in the event Goodyear Canada is subject to any liability for any such injury, damages, or losses to plaintiff, the other such defendants and third party defendants are respectively liable, jointly and severally, to Goodyear Canada for all of such liability or their apportioned and equitable shares of the aggregate damages to Plaintiff, and Goodyear Canada is and shall be entitled to full indemnification and/or contribution from and judgment over such 17 17 of 19
other defendants and third party defendants for all or any part of any verdict or judgment which may be recovered by or on behalf of plaintiff as against Goodyear Canada, together with the costs and disbursements incurred in the defense of this action. WHEREFORE, defendant Goodyear Canada demands judgment a. Dismissing the verified complaint and all cross-claims against it with prejudice; b. Alternatively, in the event judgment is recovered by Plaintiff against Goodyear Canada, awarding Goodyear Canada judgment over as against the other persons or entities; and c. Awarding Goodyear Canada the costs and disbursements of this action. Dated New York, New York June 7, 2016 LYNCH DASKAL EMERY LLP Attorneys for Defendant Goodyear Canada By s/ Alexandra E. Ober TO All Counsel 137 West 25th Street, 5th Floor New York, New York 10001 (212) 302-2400 (213) 302-2210 (fax) 18 18 of 19
VERIFICATION I, Alexandra E. Ober, an attorney admitted to practice in the Courts of New York State, hereby affirm under penalty of perjury I am an associate at the law firm of Lynch Daskal Emery LLP counsel for defendant Goodyear Canada Inc., and am duly authorized to execute this Verification on their behalf. I have read the foregoing answer and know its contents. I believe the answer to be true based on information I have obtained from company employees and a review of company documents. I make this affirmation because defendant does not have an office in the county where my office is located. s/ Alexandra E. Ober Dated New York, New York June 7, 2016 19 19 of 19