FILED: ONEIDA COUNTY CLERK 01/23/2017 12:02 PM INDEX NO. EFCA2016-002373 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 01/23/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONEIDA FRANK JAKUBOWKI AND GLORIA JAKUBOWSKI Plaintiff -against- A.O. SMITH WATER PRODUCTS, ET AL. Defendants ASBESTOS LITIGATION DEFENDANT S CNH INDUSTRIAL AMERICA LLC ANSWER AND CROSS-CLAIM TO PLAINTIFFS VERIFIED COMPLAINT Index No. 002373/2016 Defendant, CNH Industrial America LLC, (i/s/h/a Case Corporation )( CNH ), by its attorneys, Eckert Seamans Cherin & Mellott, LLC, hereby answers Plaintiffs Verified Complaint as follows: THE PARTIES 1. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraphs 1 through 3 of Plaintiffs Verified Complaint. 2. The statements contained in paragraph 4 of the Complaint do not require any admissions or denials as said statements merely define Defendants as used within the context of the Complaint. 3. CNH admits that CNH has done business in the state of New York and denies the remaining allegations contained in paragraph 5 of the Complaint as they pertain to CNH, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than CNH and refers all questions of law to the Court. 1 of 18
4. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6 through 14 of Plaintiffs Verified Complaint as they relate to other defendants, and for this reason, denies those allegations. 5. CNH denies the allegations of paragraphs 15 of the Complaint. 6. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 16 through 68 of Plaintiffs Verified Complaint as they relate to other defendants, and for this reason, denies those allegations. 7. CNH denies the allegations in Paragraph 69 through 76 of Plaintiffs Verified Complaint as they pertain to CNH, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than CNH and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 8. With respect to paragraph 77 of the Complaint, CNH repeats, reiterates and through 76 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 9. CNH denies the allegations in Paragraph 78 through 85 of Plaintiffs Verified Complaint as they pertain to CNH, and denies knowledge or information sufficient to form an opinion as to the truth of the allegations asserted as they pertain to parties other than CNH and for this reason, denies those allegations and refers all questions of law to the Court. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION 10. With respect to paragraph 86 of the Complaint, CNH repeats, reiterates and 2 2 of 18
through 85 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 11. CNH denies the allegations contained in paragraph 87 through 90 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION 12. With respect to paragraph 91 of the Complaint, CNH repeats, reiterates and through 90 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 13. CNH denies the allegations contained in paragraph 92 through 100 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION 14. With respect to paragraph 101 of the Complaint, CNH repeats, reiterates and through 100 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 15. CNH denies the allegations contained in paragraph 102 through 119 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. 3 3 of 18
AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION 16. With respect to paragraph 120 of the Complaint, CNH repeats, reiterates and through 119 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 17. CNH denies knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 121 through 127 of the Complaint as they pertain to a party other than CNH, and for this reason, denies those averments. AS AND FOR A RESPONSE TO THE SIXTH CAUSE OF ACTION 18. With respect to paragraph 128 of the Complaint, CNH repeats, reiterates and through 127 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 19. CNH denies the allegations contained in paragraph 129 through 143 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. AS AND FOR A RESPONSE TO THE SEVENTH CAUSE OF ACTION 20. With respect to paragraph 144 of the Complaint, CNH repeats, reiterates and through 143 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 4 4 of 18
21. CNH denies the allegations contained in paragraph 145 through 157 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. AS AND FOR A RESPONSE TO THE EIGHTH CAUSE OF ACTION 22. With respect to paragraph 158 of the Complaint, CNH repeats, reiterates and through 157 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 23. CNH denies the allegations contained in paragraph 159 through 173 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. AS AND FOR A RESPONSE TO THE NINTH CAUSE OF ACTION 24. With respect to paragraph 174 of the Complaint, CNH repeats, reiterates and through 173 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 25. CNH denies the allegations contained in paragraph 175 through 186 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. 5 5 of 18
AS AND FOR A RESPONSE TO THE TENTH CAUSE OF ACTION 26. With respect to paragraph 187 of the Complaint, CNH repeats, reiterates and through 186 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 27. CNH denies the allegations contained in paragraph 188 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the truth of the averments as they pertain to parties other than CNH and refers all questions of law to the court. CNH denies that any act or omission on the part of CNH justifies the imposition of punitive damages. AS AND FOR A RESPONSE TO THE ELEVENTH CAUSE OF ACTION 28. With respect to paragraph 189 of the Complaint, CNH repeats, reiterates and through 188 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 29. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 190 and 191 of Plaintiffs Verified Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiffs Complaint fails to state a claim against CNH upon which relief can be granted. 6 6 of 18
SECOND AFFIRMATIVE DEFENSE If CNH distributed an asbestos-containing product as alleged, the claimed damages of plaintiffs were not caused by the condition of the product at the time it left the possession and control of CNH. THIRD AFFIRMATIVE DEFENSE CNH did not breach any warranty, express or implied, it supplied with any product with which the plaintiff-husband worked or to which he was exposed. FOURTH AFFIRMATIVE DEFENSE CNH did not cause or contribute to plaintiffs claimed injuries or damages. FIFTH AFFIRMATIVE DEFENSE Plaintiffs claims may be barred in whole or in part by the applicable statute(s) of limitations. SIXTH AFFIRMATIVE DEFENSE Plaintiffs claims may be barred by the doctrine of assumption of the risk. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs damages were caused in whole or in part, or were contributed to, by plaintiffs culpable conduct, including contributory negligence, assumption of risk, misuse of the product and/or failure to follow instructions. EIGHTH AFFIRMATIVE DEFENSE The plaintiffs claimed damages may have been caused or contributed to by the acts or omissions of third parties over whom CNH exercised no control. 7 7 of 18
NINTH AFFIRMATIVE DEFENSE CNH did not commit any act or omission which was a proximate cause of the plaintiffs claimed injuries or damages. TENTH AFFIRMATIVE DEFENSE The acts of other individuals or entities over whom CNH exercised no control may constitute an intervening, superseding cause of the plaintiffs claimed injuries or damages so as to relieve CNH of any liability for any such claimed damages. ELEVENTH AFFIRMATIVE DEFENSE CNH did not breach any duty of care owed to plaintiffs. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs claims may be barred in whole or in part by the collateral source rule/doctrine. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs and/or Defendant/Third Party Plaintiff s claims against CNH may be barred in whole or in part by the equitable doctrines of waiver, estoppel, unclean hands and/or laches or by release, accord and satisfaction or res judicata FOURTEENTH AFFIRMATIVE DEFENSE At all relevant times, CNH complied with all applicable laws, regulations and standards. FIFTEENTH AFFIRMATIVE DEFENSE The warnings, information and instructions provided by CNH were in conformity with the then available knowledge of CNH and of the scientific and industrial communities. SIXTEENTH AFFIRMATIVE DEFENSE CNH provided all necessary, required and adequate warnings or instructions. 8 8 of 18
SEVENTEENTH AFFIRMATIVE DEFENSE Any products of CNH referred to in the complaint were not in the same condition at the time of the alleged exposure as they were when they left CNH s control. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff and his employers were sophisticated users of the product or products in question and, consequently, CNH had no duty to provide information about the product or products directly to plaintiff. NINETEENTH AFFIRMATIVE DEFENSE Upon information and belief, the injuries alleged in the complaint occurred solely as a result of the affirmative, active and primary acts of negligence, recklessness, carelessness and culpable conduct of defendants other than CNH, as well as others not named as defendants in this action, and not by reason of any negligence or culpable conduct on behalf of CNH, its agents, servants or employees. TWENTIETH AFFIRMATIVE DEFENSE Any liability on the part of CNH is fifty (50) percent or less of the liability of all persons causing or contributing to the alleged injuries, and therefore CNH s liability for non-economic loss shall not exceed CNH s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR 1601 and 1603. TWENTY-FIRST AFFIRMATIVE DEFENSE At all relevant times, CNH did not know and had no reasonable grounds for knowing that any of its products were hazardous and, further, CNH had no reason to believe that any of its products could be hazardous because any asbestos fibers contained in such products were locked 9 9 of 18
in, encapsulated, enclosed and firmly bound and, therefore, did not release dangerous amounts of asbestos fiber. TWENTY-SECOND AFFIRMATIVE DEFENSE Any asbestos products that may have been sold or used by CNH were not inherently defective, ultra hazardous, dangerous, deleterious, poisonous and/or otherwise harmful. TWENTY-THIRD AFFIRMATIVE DEFENSE Any asbestos products that may have been sold or used by CNH were not unsafe. TWENTY-FOURTH AFFIRMATIVE DEFENSE CNH did not fail to adequately test any asbestos products that it might have sold or used. TWENTY-FIFTH AFFIRMATIVE DEFENSE At all material times, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unsafe, inherently dangerous or hazardous character or nature of products containing asbestos when used in the manner and for the purposes described. TWENTY-SIXTH AFFIRMATIVE DEFENSE The damages alleged in the complaint were proximately caused by the misuse and abuse of products or materials, either by plaintiff or others. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiff did not reasonably rely on any representation, disclaimer, warning or other act or omission of CNH. 10 10 of 18
TWENTY-EIGHTH AFFIRMATIVE DEFENSE The complaint fails to state a claim against CNH for breach of warranty in that the complaint fails to allege that there was privity between CNH and plaintiff and, furthermore, such privity did not exist. TWENTY-NINTH AFFIRMATIVE DEFENSE Any express and implied warranties alleged to have been made by CNH, if made at all, were expressly disclaimed and excluded by product labels, notices and other warnings, which provided that no warranties, express or implied, were made concerning the products or the use of said products, and that all statements made concerning said products applied only when used as directed. THIRTIETH AFFIRMATIVE DEFENSE Plaintiff failed to give notice to CNH, within a reasonable time and in the manner and form prescribed by law, of the breach of warranty alleged in the complaint. THIRTY-FIRST AFFIRMATIVE DEFENSE Any products or materials of CNH were not a substantial factor in bringing about the injuries and damages alleged. THIRTY-SECOND AFFIRMATIVE DEFENSE The action is barred for failure to join indispensable parties and the complaint is thereby defective. 11 11 of 18
THIRTY-THIRD AFFIRMATIVE DEFENSE Liability for the damages alleged in the complaint is due to the negligence, strict products liability or breach of warranty by others. THIRTY-FOURTH AFFIRMATIVE DEFENSE CNH made no representations to the public at large in order to induce purchase of any of the products or materials referred to in the complaint. THIRTY-FIFTH AFFIRMATIVE DEFENSE Any products manufactured or supplied by CNH were designed and manufactured pursuant to and in accordance with specifications mandated by federal, state and/or local governments and/or their agencies. The knowledge of the federal, state and/or local governments and/or agencies of any possible health hazards from use of such products was equal to or superior to that of CNH. Accordingly, CNH is not liable to plaintiff. THIRTY-SIXTH AFFIRMATIVE DEFENSE CNH did not participate, engage or assist in any act or course of conduct that could form the basis for an award of punitive damages. Therefore, punitive damages are not recoverable to any extent whatsoever against CNH. THIRTY-SEVENTH AFFIRMATIVE DEFENSE CNH did not take part in and was not a party to any conspiracy, nor did CNH enter into any tacit agreement and/or industry wide standards or procedures, nor did it act through any trade association or jointly with any other defendant. THIRTY-EIGHTH AFFIRMATIVE DEFENSE CNH did not make any misrepresentations or commit any fraudulent acts. 12 12 of 18
THIRTY-NINTH AFFIRMATIVE DEFENSE Plaintiff s claims for punitive or exemplary damages are barred by the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. Furthermore, there is no standard for determining the amount of the award, state law does not define with sufficient clarity requisite conduct or mental state and the state cannot protect CNH from future punishment for the same wrong. FORTIETH AFFIRMATIVE DEFENSE CNH did not engage in any misconduct or willful misconduct and did not act with wanton disregard for the rights, safety and position of plaintiff or any other person. FORTY-FIRST AFFIRMATIVE DEFENSE CNH did not distort or cause to be distorted any medical examination results or data, nor did it edit, alter, distort or attempt to prevent the publication of medical literature. FORTY-SECOND AFFIRMATIVE DEFENSE The imposition of punitive damages on the facts alleged in the complaint would violate the excessive fines and due process clauses of the Constitutions of the United States and of New York State. 13 13 of 18
FORTY-THIRD AFFIRMATIVE DEFENSE If it is determined that plaintiff was exposed to asbestos from any of CNH s products, which products or components of those products were acquired from or sold by or used on behalf of the United States of America or New York State, then CNH is entitled to any sovereign or governmental immunity available to the United States or New York State. FORTY-FOURTH AFFIRMATIVE DEFENSE Any exposure of plaintiff to any products of CNH was so minimal as to be insufficient to establish to a reasonable degree of scientific or medical certainty that a product of CNH caused the injuries claimed. FORTY-FIFTH AFFIRMATIVE DEFENSE Any information regarding the alleged health hazards of exposure to asbestos in the possession of CNH was communicated to and was in the possession of various unions and governmental agencies, which were charged with the responsibility of disseminating such information to plaintiff. FORTY-SIXTH AFFIRMATIVE DEFENSE If any person or entity liable or claimed to be liable for the injuries alleged in this action has been given or may hereafter be given a release or covenant not to sue, CNH will be entitled to protection under New York General Obligations Law 15-108 and the corresponding reduction of any damages that may be determined to be due from CNH. 14 14 of 18
FORTY-SEVENTH AFFIRMATIVE DEFENSE CNH asserts and reserves the right to rely upon any other affirmative defense asserted by any other defendant to the extent applicable. FORTY-EIGHTH AFFIRMATIVE DEFENSE CNH hereby reserves the right to assert upon completion of its investigation and discovery such additional defenses, cross claims and claims against third parties as may be appropriate. AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiffs sustained damages as alleged in the Complaint, which is denied by CNH, such damages were caused entirely by reason of the active and primary negligence and/or other culpable conduct of the co-defendants and of third parties who are not parties to this action, with no active or primary negligence or liability producing conduct on the part of CNH contributing thereto. If plaintiff recovers a verdict against CNH, CNH will be entitled to indemnity and/or contribution over and against all co-defendants to this action. AS AND FOR AN ANSWER TO ALL CROSS-CLAIMS CNH answers the cross-claims of all co-defendants, however stated or alleged as follows: All cross-claims for contribution alleged against CNH by any party are denied. All cross-claims for indemnification alleged against CNH by any party are denied. WHEREFORE, CNH Industrial America LLC (i/s/h/a Case Corporation ), demands judgment against plaintiffs dismissing the complaint or, if the complaint is not so dismissed, then CNH demands that the ultimate rights and responsibilities as among the parties, including the 15 15 of 18
culpable conduct and assumption of risk attributable to plaintiffs, be determined in this action, and that any damages recoverable against CNH be reduced in the proportion which the culpable conduct, including contributory negligence and/or assumption of risk of plaintiffs bears to the culpable conduct which caused the damages; and CNH also demands judgment for contribution and/or indemnification on its cross-claim against all co-defendants according to the relative responsibility of the parties; and CNH also demands judgment for the costs and disbursements of this action and for such other, further or different relief as to the Court may seem just, proper and equitable. Dated: Philadelphia, Pennsylvania January 23, 2017 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC /s/ Elizabeth Weill Elizabeth A. Weill, Esquire Two Liberty Place 50 South 16th Street, 22nd Floor Philadelphia, PA 19102 (215) 851-8527 Attorneys for defendant, CNH Industrial America LLC (i/s/h/a Case Corporation ) 16 16 of 18
VERIFICATION ELIZABETH A. WEILL, ESQ., pursuant to CPLR 2106, hereby affirms: I am a member of the law firm of Eckert Seamans Cherin & Mellott, LLC, counsel to defendant CNH Industrial America LLC in the within action. I have read the foregoing answer to the Complaint and know the contents thereof, and the same is true to my own knowledge, except as to the matters therein stated to be upon information and belief, and as to those matters, I believe them to be true. The grounds of my belief as to matters not stated upon information and belief are review of public websites and databases and information provided by agents of the defendant herein. This verification is made pursuant to CPLR 3020(d)(3) as CNH Industrial America LLC is not located within the county where the office of my law firm is located. Dated: Philadelphia, Pennsylvania January 23, 2017 /s/ Elizabeth Weill ELIZABETH A. WEILL 17 17 of 18
CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of January, 2017, a copy of the foregoing Answer of Defendant, CNH Industrial America LLC was filed electronically this day and is available for viewing from the Court s ECF system. Notice of the filing will be sent to all counsel of record via the Court s ECF system. /s/ Elizabeth Weill 18 of 18