FILED: NEW YORK COUNTY CLERK 12/17/2015 01:47 PM INDEX NO. 190350/2015 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In RE NEW YORK CITY ASBESTOS LITIGATION This Document Relates to: ROBERT REINKE AND HILDA REINKE Plaintiffs - against - ADVANCE AUTO SUPPLY, et. al. Defendants New York Asbestos Litigation (NYCAL) Index No. 190350/2015 VERIFIED ANSWER, AFFIRMATIVE DEFENSES and CROSS CLAIMS TO PLAINTIFFS VERIFIED COMPLAINT Defendant, CNH Industrial America LLC, (incorrectly named herein as Case Corporation, Individually and as Successor to David Brown Tractor ) ( 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 and 2 of Plaintiffs Verified Complaint. 2. The statements contained in paragraph 3 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 4 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.
4. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 5 through 18 of Plaintiffs Verified Complaint as they relate to other defendants, and for this reason, denies those allegations. 5. CNH denies the allegations of paragraph 19 of the Complaint, except admits is a Delaware limited liability company. 6. CNH denies having knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 20 through 91 of Plaintiffs Verified Complaint as they relate to other defendants, and for this reason, denies those allegations. 7. CNH denies the allegations in Paragraph 92 through 99 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 100 of the Complaint, CNH repeats, reiterates and through 99 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 9. CNH denies the allegations in Paragraph 101 through 108 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 109 of the Complaint, CNH repeats, reiterates and 2
through 108 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 11. CNH denies the allegations contained in paragraph 110 through 113 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 114 of the Complaint, CNH repeats, reiterates and through 113 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 13. CNH denies the allegations contained in paragraph 115 through 123 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 124 of the Complaint, CNH repeats, reiterates and through 123 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 15. CNH denies the allegations contained in paragraph 125 through 142 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
AS AND FOR A RESPONSE TO THE FIFTH CAUSE OF ACTION 16. With respect to paragraph 143 of the Complaint, CNH repeats, reiterates and through 142 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 144 through 150 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 151 of the Complaint, CNH repeats, reiterates and through 150 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 19. CNH denies the allegations contained in paragraph 152 through 166 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 167 of the Complaint, CNH repeats, reiterates and through 166 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 21. CNH denies the allegations contained in paragraph 168 through 180 of the Complaint as they pertain to CNH, denies knowledge or information sufficient to form a belief as to the 4
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 181 of the Complaint, CNH repeats, reiterates and through 180 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 23. CNH denies the allegations contained in paragraph 182 through 196 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 197 of the Complaint, CNH repeats, reiterates and through 196 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 25. CNH denies the allegations contained in paragraph 198 through 209 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 TENTH CAUSE OF ACTION 26. With respect to paragraph 210 of the Complaint, CNH repeats, reiterates and 5
through 209 of Plaintiffs Verified Complaint with the same force and effect as though fully set forth herein. 27. CNH denies the allegations contained in paragraph 211 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 FIRST AFFIRMATIVE DEFENSE 1. Plaintiffs Complaint fails to state a claim against CNH upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 2. 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. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 3. CNH did not breach any warranty, express or implied, it supplied with any product with which the plaintiff worked or to which he was exposed. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 4. CNH did not cause or contribute to Plaintiffs claimed injuries or damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 5. Plaintiffs claims may be barred in whole or in part by the applicable statute(s) of limitations. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 6. Plaintiffs claims may be barred by the doctrine of assumption of the risk. 6
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 7. 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. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 8. Plaintiffs claimed damages may have been caused or contributed to by the acts or omissions of third parties over whom CNH exercised no control. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 9. CNH did not commit any act or omission which was a proximate cause of Plaintiffs claimed injuries or damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 10. The acts of other individuals or entities over whom CNH exercised no control may constitute an intervening, superseding cause of Plaintiffs claimed injuries or damages so as to relieve CNH of any liability for any such claimed damages. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 11. CNH did not breach any duty of care owed to plaintiffs. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 12. Plaintiffs claims may be barred in whole or in part by the collateral source rule/doctrine. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiffs and/or Defendant/Third Party Plaintiffs 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. 7
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 14. At all relevant times, CNH complied with all applicable laws, regulations and standards. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 15. 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. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 16. CNH provided all necessary, required and adequate warnings or instructions. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 17. 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. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 18. 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. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 19. 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. 8
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 20. 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 noneconomic 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. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 21. 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 in, encapsulated, enclosed and firmly bound and, therefore, did not release dangerous amounts of asbestos fiber. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 22. 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. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Any asbestos products that may have been sold or used by CNH were not unsafe. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. CNH did not fail to adequately test any asbestos products that it might have sold or used. 9
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. 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. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. The damages alleged in the complaint were proximately caused by the misuse and abuse of products or materials, either by plaintiff or others. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. Plaintiffs did not reasonably rely on any representation, disclaimer, warning or other act or omission of CNH. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. 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 plaintiffs and, furthermore, such privity did not exist. 10
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 29. 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. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 30. Plaintiffs 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. AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 31. Any products or materials of CNH were not a substantial factor in bringing about the injuries and damages alleged. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 32. The action is barred for failure to join indispensable parties and the complaint is thereby defective. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 33. 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. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. Liability for the damages alleged in the complaint is due to the negligence, strict products liability or breach of warranty by others 11
AS AND FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. 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 plaintiffs. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. 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. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. 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. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE 38. CNH did not make any misrepresentations or commit any fraudulent acts. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 39. Plaintiffs 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. 12
AS AND FOR A FORTIETH AFFIRMATIVE DEFENSE 40. CNH did not engage in any misconduct or willful misconduct and did not act with wanton disregard for the rights, safety and position of plaintiffs or any other person. AS AND FOR A FORTY-FIRST AFFIRMATIVE DEFENSE 41. 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. AS AND FOR A FORTY-SECOND AFFIRMATIVE DEFENSE 42. Plaintiffs demand for punitive damages is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 5 of the New York State Constitution prohibiting the imposition of excessive fines. AS AND FOR A FORTY-THIRD AFFIRMATIVE DEFENSE 43. 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. AS AND FOR A FORTY-FOURTH AFFIRMATIVE DEFENSE 44. 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. AS AND FOR A FORTY-FIFTH AFFIRMATIVE DEFENSE 45. 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 13
governmental agencies, which were charged with the responsibility of disseminating such information to plaintiff. AS AND FOR A FORTY-SIXTH AFFIRMATIVE DEFENSE 46. 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. AS AND FOR A FORTY-SEVENTH AFFIRMATIVE DEFENSE 47. Some of all of the causes of action many not be maintained because there is another action pending for the same relief. AS AND FOR A FORTY-EIGHTH AFFIRMATIVE DEFENSE 48. Inasmuch as plaintiffs are unable to identify the manufacturer or distributor of the product(s) that allegedly caused his injuries, plaintiffs fail to state a claim upon which relief can be granted. If relief were granted in the absence of product identification, it would contravene CNH s constitutional rights to substantive and procedural due process of law and equal protection, as well as CNH s constitutional rights to protection against the taking of private property for public use without just compensation as preserved by the Fourteenth Amendment of the United States Constitution. AS AND FOR A FORTY-NINTH AFFIRMATIVE DEFENSE 49. The venue of this action is improper and CNH reserves the right to move for a transfer. 14
AS AND FOR A FIFTIETH AFFIRMATIVE DEFENSE 50. CNH asserts and reserves the right to rely upon any other affirmative defense asserted by any other defendant to the extent applicable. AS AND FOR A FIFTY-FIRST AFFIRMATIVE DEFENSE 51. 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 CERTAIN DEFENDANTS 1. The injuries alleged in the Complaint were caused in whole or in part by the acts of those certain co-defendants who have asserted cross-claims or who later assert cross-claims against CNH in this case. 2. If plaintiffs recovers a verdict against CNH, CNH will be entitled to indemnity and/or contribution from the co-defendants who have asserted cross-claims against CNH. AS AND FOR AN ANSWER TO ALL CROSS-CLAIMS 1. CNH denies all the allegations of all cross-claims asserted against CNH which have been filed or hereafter to be filed by any of the co-defendants WHEREFORE, CNH Industrial America LLC, (incorrectly named herein as Case Corporation, Individually and as Successor to David Brown Tractor ) demands judgment against plaintiffs dismissing Plaintiffs Verified Complaint or, if the Complaint is not so dismissed, then CNH Industrial America LLC demands that the ultimate rights and responsibilities as among the parties, including the culpable conduct and assumption of risk attributable to plaintiffs, be determined in this action, and that any damages recoverable against CNH Industrial America LLC, be reduced in the proportion which the culpable conduct, including contributory negligence 15
and/or assumption of risk of plaintiffs bear to the culpable conduct which caused the damages; and CNH Industrial America LLC also demands judgment for contribution and/or indemnification on its cross-claim against all co-defendants who assert cross-claims against CNH Industrial America LLC according to the relative responsibility of the parties; and CNH Industrial America LLC 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 December 17, 2015 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC /s/ Elizabeth A. 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, Individually and as Successor to David Brown Tractor) 16
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 December 17, 2015 /s/ Elizabeth Weill ELIZABETH A. WEILL
CERTIFICATE OF SERVICE I hereby certify that on the 17 th day of December, 2015, a copy of the foregoing Answer of Defendant, CNH Industrial America LLC, (incorrectly named herein as Case Corporation, Individually and as Successor to David Brown Tractor ), 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