SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x LEROY BAKER, Index No.: 190058/2017 Plaintiff, -against- AF SUPPLY USA INC., et al. Defendants. -------------------------------------------------------------------x VERIFIED ANSWER TO PLAINTIFF S VERIFIED COMPLAINT, AFFIRMATIVE DEFENSES, CROSS-CLAIMS, AND ANSWER TO CROSS-CLAIMS OF DEFENDANT SOS PRODUCTS COMPANY, INC. Defendant SOS Products Company, Inc. (hereinafter SOS ), by its attorneys, Hawkins Parnell Thackston & Young LLP, hereby answers the Plaintiff s Verified Complaint (hereinafter Complaint ), as follows: COMPLAINT 1. SOS denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint. 2. SOS denies the allegations contained in Paragraphs 2 through 8 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. FIRST CAUSE OF ACTION 3. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 8 of the Complaint, as if fully set forth herein. 4. SOS denies the allegations contained in Paragraphs 9 through 34 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations asserted as they pertain to parties other than SOS, and refers all questions of 1 of 17
law to the Court. SECOND CAUSE OF ACTION 5. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 34 of the Complaint, as if fully set forth herein. 6. SOS denies the allegations contained in Paragraphs 35 through 38 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. THIRD CAUSE OF ACTION 7. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 38 of the Complaint, as if fully set forth herein. 8. SOS denies the allegations contained in Paragraphs 39 through 40 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. FOURTH CAUSE OF ACTION 9. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 40 of the Complaint, including in response to the allegations contained in Paragraph 41 of the Complaint, as if fully set forth hereinafter. 10. SOS denies the allegations contained in Paragraphs 42 through 67 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. 2 2 of 17
FIFTH CAUSE OF ACTION 11. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 67 of the Complaint, including in response to the allegations contained in Paragraph 68 of the Complaint, as if fully set forth hereinafter. 12. SOS denies the allegations contained in Paragraphs 69 through 81 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. SIXTH CAUSE OF ACTION 13. SOS repeats and reiterates its responses to the allegations contained in Paragraphs 1 through 81 of the Complaint, including in response to the allegations contained in Paragraph 82 of the Complaint, as if fully set forth hereinafter. 14. SOS denies the allegations contained in Paragraphs 83 through 94 of the Complaint as they pertain to SOS, denies knowledge or information sufficient to form a belief as to the truth of the allegations as they pertain to parties other than SOS, and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 15. All claims are time-barred by the applicable Statue of Limitations. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 16. All causes of action have not been maintained in a timely fashion; Plaintiff has neglected same and should be barred by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 17. The Court lacks jurisdiction over the subject matter of this action. 3 3 of 17
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 18. The Complaint and each and every allegation considered separately fail to state any cause of action against SOS upon which relief can be granted. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 19. Since Plaintiff is unable to identify the manufacturers of the substance, product or equipment which allegedly caused injury, Plaintiff fails to state a claim upon which relief may be granted, since if such relief were granted, it would deprive a SOS of its constitutional rights to substantive and procedural due process of law and equal protection under the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 20. The causes of action asserted herein by Plaintiff, who admittedly is unable to identify the manufacturer of the alleged injury-causing product, fails to state a claim upon which relief can be granted, in that Plaintiff has asserted claims for relief, which, if granted, would constitute the taking of private property for public use, without just compensation. Such a taking would contravene constitutional rights of SOS, otherwise preserved by the Fourteenth Amendment of the Constitution of the United States. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 21. To the extent to which Plaintiff seeks punitive damages against SOS, these damages are improper, unwarranted, not authorized by law and are unconstitutional in the context of this litigation. The imposition of punitive damages violates the Due Process, Contract, Excessive Fines, and Double Jeopardy clauses of the United States Constitution. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 22. Upon information and belief, SOS conformed to the scientific knowledge and data 4 4 of 17
available to 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 Plaintiff may not recover herein any exemplary or punitive damages against SOS. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 23. Plaintiff s cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 24. In the event that Plaintiff was employed by SOS, Plaintiff s sole and exclusive remedy is under the Workers Compensation Law of the State of New York. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 25. Plaintiff s exclusive remedies are under the applicable federal Workers Compensation laws, including the Federal Employers Liability Act. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 26. Plaintiff s claims are barred by the operation of the doctrines of waiver, laches and estoppel. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 27. Insofar as the Complaint and each cause of action considered separately allege a cause of action to recover damages for personal injuries, 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, the proportion of which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages alleged. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 28. Plaintiff should have taken action to minimize or eliminate damages, and 5 5 of 17
therefore Plaintiff is precluded from recovering damages, or reduced damages, by operation of the doctrine of avoidable consequences. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 29. If Plaintiff should prove that injuries and damages were sustained as alleged, such injuries and damages resulted from acts or omissions on the part of third parties, over whom SOS neither had control nor had the right of control. AS AND FOR AN SIXTEENTH AFFIRMATIVE DEFENSE 30. While SOS denies the allegations of Plaintiff with respect to liability, injury and damages, to the extent to which Plaintiff may be able to prove same, they were the result of intervening and/or interceding acts of superseding negligence on the part of the parties, over whom SOS neither had control nor had the right of control. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 31. While denying Plaintiff s allegations with respect to liability, to the extent that negligence or improper conduct may be proved, the acts of SOS are not a proximate cause of any injuries to Plaintiff. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 32. At all times during the conduct of its corporate operations, the agents, servants and or employees of SOS complied with all applicable law, regulations, standards and the available knowledge and technology of the medical, scientific and industrial communities. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 33. If it should be proven at the time of trial that any of SOS s products were furnished to Plaintiff s employers or to the United States Government, and that Plaintiff came into contact with these products, which is specifically denied, then any such product was 6 6 of 17
furnished in strict conformity to the conditions specified or to the specifications furnished by Plaintiff s employers and/or the United States Government. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 34. Plaintiff, his co-workers, and his employers misused, abused, mistreated and misapplied the products designated as asbestos material as alleged in the Complaint. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 35. If the Court finds that any misuse, abuse, mistreatment and/or misapplication of the products caused and/or contributed to the alleged damages or injuries to Plaintiff, then SOS requests that the amount of damages which might be recovered should be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication attributed to the Plaintiff, his co-workers, and/or his employers bears to the conduct which caused the alleged injuries or damages. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 36. SOS gave, made, or otherwise extended no warranties, whether express or implied, upon which Plaintiff had a right to rely. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 37. Any oral warranties upon which Plaintiff allegedly relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 38. As to all the causes of action pleaded in the Complaint, which may be based on express or implied warranties and/or representations, such causes of action are legally insufficient as against SOS, by reason of Plaintiff s failure to allege privity of contract between the Plaintiff and SOS, which is specifically denied. 7 7 of 17
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 39. In the event that any breach of express or implied warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to SOS. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 40. Plaintiff did not directly or indirectly purchase any asbestos-containing products from SOS and Plaintiff neither received nor relied upon any warranty or representation that may be alleged to have been made by SOS. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 41. To the extent to which the causes of action pleaded by Plaintiff fail to accord with the Uniform Commercial Code, including but not limited to Section 2-725 thereof, Plaintiff s Complaint is time-barred. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 42. SOS denies that Plaintiff had any exposure to any asbestos-containing product allegedly processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce by SOS and more particularly denies, upon information and belief, that SOS processed, manufactured, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos-containing product at the times and upon the dates alleged in the Complaint. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 43. SOS denies specifically that, during the periods of exposure alleged in the Complaint by Plaintiff, it processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of 8 8 of 17
commerce a substantial and/or any percentage of the asbestos-containing products to which Plaintiff was caused to come into contact, which Plaintiff was caused to breathe, inhale and digest, and which thereby caused the Plaintiff s injuries and resulting damages alleged in the Complaint. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 44. In the event that it should be proven at the time of trial that all Defendants are subject to market share liability, then, SOS s share of such liability would be of such a de minimus amount as to make its contribution for damages negligible, and SOS would be entitled to contribution, either in whole or in part, from its co-defendants not represented by this Answer. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 45. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disability alleged in the Complaint. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 46. SOS specifically denies that the asbestos products alleged in Plaintiff s Complaint are products within the meaning and scope of the Restatement of Torts 402A, as such, the Complaint fails to state a cause of action in strict liability. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 47. The doctrine of strict liability in torts is inapplicable to this litigation. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 48. Plaintiff contributed to Plaintiff s illness by the use, either in whole or in part, of other substances, products, medications and/or drugs. AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 49. Plaintiff s employers were sophisticated purchasers, upon whom devolved all 9 9 of 17
responsibility for the use of the products referred to in Plaintiff s Complaint. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 50. At all times material hereto, the state of the medical, industrial and scientific arts knowledge and technology was that there was no generally accepted or recognized knowledge of any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of asbestos-containing products when used in the manner and for the purpose intended, so that there was no duty by SOS to know of such character or nature, or to warn Plaintiff or others similarly situated; to the extent such duty arose, adequate warnings either were given or were not necessary under all circumstances. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 51. All defenses which have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to Plaintiff s Complaint. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 52. SOS reserves the right to amend this pleading to assert additional defenses upon discovery of the specific facts upon which Plaintiff bases Plaintiff s claims for relief and upon completion of further discovery. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 53. This action cannot be maintained as there is another action pending for the same relief. AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 54. Plaintiff s claims are barred because of Plaintiff s failure to join necessary and indispensable parties. 10 10 of 17
AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 55. Plaintiff s claims should be dismissed on grounds of improper venue and/or forum non conveniens. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 56. Plaintiff s claims should be dismissed on grounds of improper service of process. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 57. If Plaintiff should recover a judgment against SOS, any such recovery is limited by Article 16 of the CPLR. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 58. SOS reserves the right to move for a severance of the various allegations in Plaintiff s Complaint. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 59. Plaintiff s claim that SOS product(s) were capable of releasing asbestos fibers into the air is inconsistent with the science and must be considered speculative as a matter of law. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 60. SOS does not admit culpability or liability to Plaintiff, but to the extent permitted, is entitled to a setoff of damages based on reimbursement to Plaintiff from collateral sources pursuant to CPLR 4545. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 61. The complaint fails to state in detail the circumstances constituting the alleged misrepresentation, fraud, concealment, deceit or conspiracy. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 62. Plaintiff lacks the capacity, standing, or authority to bring this action, in whole or 11 11 of 17
in part. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 63. Plaintiff s speculative, uncertain, or contingent damages have not accrued and are not recoverable. AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE 64. The Court lacks in personam jurisdiction over SOS. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 65. To the extent that Plaintiff was injured as alleged in the Complaint, which SOS denies, said injury was proximately caused by the negligence, breach of warranty, and/or strict liability of persons and/or entities other than SOS. AS AND FOR A FIFTY-SECOND AFFIRMATIVE DEFENSE 66. Any injuries sustained by Plaintiff resulted from Plaintiff 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 SOS, including, without limitation, agencies, agents and departments of the United States, which persons or entities possessed, at the time of such manufacture or sale, knowledge equal to or greater than that of SOS concerning the properties and characteristics of asbestos and asbestos-containing products. AS AND FOR A FIFTY-THIRD AFFIRMATIVE DEFENSE 67. Plaintiff voluntarily assumed the risks associated with the use of or exposure to the products at issue. AS AND FOR A FIFTY-FOURTH AFFIRMATIVE DEFENSE 68. To the extent that Plaintiff was exposed to any product manufactured by SOS, 12 12 of 17
which SOS denies, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which Plaintiff may have developed, thus requiring dismissal of the Complaint against SOS. AS AND FOR A FIFTY-FIFTH AFFIRMATIVE DEFENSE 69. Plaintiff s claims in their entirety and each of them individually, as well as this action are preempted by federal statutes and regulations governing work place exposure to asbestos. AS AND FOR A FIFTY-SIXTH AFFIRMATIVE DEFENSE 70. Any damages which may have been sustained by Plaintiff was caused or contributed to by reason of the culpable conduct of the Plaintiff. Each cause of action in the Complaint is barred by reason of the culpable conduct of the Plaintiff, including contributory negligence and assumption of the risk. AS AND FOR A FIFTY-SEVENTH AFFIRMATIVE DEFENSE 71. The injuries allegedly suffered by the Plaintiff, if any, which injuries are specifically denied by SOS, were the result of the culpable conduct or fault of third persons for whose conduct SOS is not legally responsible, and the damages recovered by the Plaintiff, if any, should be diminished or reduced in proportion to said culpable conduct which caused the damages. Any liability on the part of SOS, which liability is specifically denied, is fifty percent or less of the liability of all entities who are the cause of the alleged injuries, if any, and the liability of SOS for non-economic loss does not exceed SOS equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability of non-economic loss. 13 13 of 17
AS AND FOR A FIFTY-EIGHTH AFFIRMATIVE DEFENSE 72. As to each and every cause of action, SOS alleges that Plaintiff s injuries and damages, if any, were proximately caused or contributed to by Plaintiff s unforeseeable idiosyncratic condition, unusual susceptibility, hypersensitive reactions, or genetic predisposition for which SOS is not liable. AS AND FOR A FIFTY-NINTH AFFIRMATIVE DEFENSE 73. On information and belief, SOS alleges that Plaintiff s agents negligently or intentionally failed to preserve, and permitted the spoliation of, material evidence, including but not limited to the products which Plaintiff allege give rise to Plaintiff s Complaint. Such conduct bars Plaintiff s action and/or gives rise to liability on the part of Plaintiff for damages payable to SOS. AS AND FOR A SIXTIETH AFFIRMATIVE DEFENSE 74. The causes of action in Plaintiff s Complaint are barred in whole or in part by res judicata and/or collateral estoppel. AS AND FOR A SIXTY-FIRST AFFIRMATIVE DEFENSE 75. Plaintiff s causes of action pertaining to loss of consortium or loss of parental services are barred because Plaintiff and/or Decedents were not married at the time the alleged injury occurred. AS AND FOR A SIXTY-SECOND AFFIRMATIVE DEFENSE 76. Plaintiff was reasonably and adequately warned of any alleged risks associated with the use of or exposure to asbestos-containing products. AS AND FOR A SIXTY-THIRD AFFIRMATIVE DEFENSE 77. To the extent Plaintiff s claims are based on an alleged breach of warranty, 14 14 of 17
Plaintiff did not rely on any warranty. AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS 78. If Plaintiff sustained damages, at the time and place set forth in Plaintiff s Complaint, through any carelessness, recklessness and/or negligence other than that of Plaintiff himself, including, but not limited to the manufacture and distribution of asbestos products, breach of warranty or misrepresentations, either express or implied, and in strict liability in tort, these damages will have been caused and brought about by reason of the carelessness, recklessness and/or negligence of SOS s co-defendants. 79. If Plaintiff should recover a judgment against SOS, by operation of law or otherwise, SOS will be entitled to judgment, contribution and/or indemnity over an against its co-defendants, their agents, servants and/or employees, by reason of their carelessness, recklessness and/or negligence for the amount of any such recovery, or a portion thereof, in accordance with principles of law regarding apportionment of fault and damages, along with costs, disbursements and reasonable expenses of the investigation and defense of this action, including reasonable attorney s fees. AS AND FOR AN ANSWER TO ALL CROSS-CLAIMS SOS answers the cross-claims of all other defendants, however stated or alleged, and says: 80. All cross-claims for contribution alleged against SOS by any party Defendant are denied. 81. All cross-claims for indemnification alleged against SOS by any party Defendant are denied. WHEREFORE, SOS demands judgment dismissing Plaintiff s Complaint with costs and disbursements; in the event of any judgment against SOS, it demands judgment, contribution 15 15 of 17
and/or indemnity over and against its co-defendants for the amount of any such recovery or a portion thereof, in accordance with the principals of law regarding apportionment of fault and damages, along with costs and disbursements, including attorneys fees. Dated: March 30, 2017 New York, New York HAWKINS PARNELL THACKSTON & YOUNG LLP By: Sara Murphy, Esq. 600 Lexington Avenue, 8 th Floor New York, NY 10022-7678 212.897.9655 Attorneys for Defendant SOS Products Company, Inc. 16 16 of 17
VERIFICATION STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) The undersigned attorney admitted to practice in the Court of New York State, shows: Deponent is a partner of the firm of Hawkins Parnell Thackston & Young LLP counsel for Defendant SOS Products Company, Inc. in the within action; deponent has read the foregoing VERIFIED ANSWER TO PLAINTIFF S COMPLAINT, AFFIRMATIVE DEFENSES AND CROSS-CLAIMS AND ANSWER TO CROSS-CLAIMS OF DEFENDANT SOS PRODUCTS COMPANY, INC. and knows the contents thereof; that the same is true to deponent s own knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters deponent believes it to be true. Deponent further states that the reason this verification is made by deponent and not by defendant is because said defendant is a foreign corporation and is not within New York County wherein her offices are located. The grounds of deponent s belief as to all matters not stated upon deponent s knowledge are as follows: records, reports and correspondence in deponent s file. The undersigned affirms that the foregoing statements are true, under penalties of perjury. Dated: New York, New York March 30, 2017 SARA MURPHY, ESQ. 11407985v.2 17 of 17