2018 03:09 pm - iapps.courts.state.ny.us
TRANSCRIPT
SUPREME COURT OF THE STATE OF NEW YORKEIGHTH JUDICIAL DISTRICT
In Re Eighth Judicial District Asbestos Litigation
This Document Applies to:
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ERIE
MICHELLE SULLIVAN, Administratrix
d.b.n. of the Estate of RONALD J. JARNOT,Deceased
Plaintiff, SECOND AMENDEDCOMPLAINT
vs.
AIR 8 LIQUID SYSTEMS CORPORATION Index 0 812420/2016
as Successor by Merger to
BUFFALO PUMPS, INC.,
BEAZER EAST, INC., formerly known as
BEAZER MATERIALS 8 SERVICES, INC.,
formerly known as KOPPERS CO. INC.
CBS CORPORATION, f/k/a VIACOM, INC.
Successor by Merger to CBS CORPORATION
f/k/a WESTINGHOUSE ELECTRIC CORPORATION,
CINCINNATI VALVE COMPANY,CRANE CO.
FERRO ENGINEERING DIVISION OF
ON MARINE SERVICES, COMPANY, INC.,
FLOWSERVE US, solely as successor to
ROCKWELL MANUFACTURING COMPANY,
EDWARD VALVES, INC., NORDSTROM VALVES,lNC
and EDWARD VOLT VALVE COMPANY,
FOSECO, INC.
FRONTIER INSULATION CONTRACTORS f/k/a
FRONTIER INSULATION AND ASBESTOS, INC.,
GOULDS PUMPS, INC.,
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GRINNELL CORPORATION,HONEYWELL INTERNATIONAL, INC.
as Successor-in-Interest toWILPUTTE
COKE OVEN, DIVISIONof ALLIEDSIGNAL, INC.,
INGERSOLL-RAND COMPANYINSULATION DISTRIBUTORS INC.,
J.H. FRANCE REFRACTORIES C O.
JOHN CRANE INC.
LACO SALES, INC., Individually and as
Successor to LACO ROOFING ANDASBESTOS COMPANY, INC.,
METROPOLITAN LIFE INSURANCE CONIAGARA NSULATIONS f/k/a
NIAGARA ASBESTOS CO., INC.,
NIBCO INC.,
OWENS ILLINOIS,
RILEY POWER, INC. f/k/a BABCOCKBORSIG POWER, INC. f/k/a DB RILEY INC.
f/k/a RILEY STOKER CORPORATION,SEALING DEVICES, INC.,
THIEM CORPORATION, as Successor by
Merger to THIEM CORPORATION, as
Successor by Merger to UNIVERSAL REFRACTORIES
CORP.
UNION CARBIDE CORPORATION,ZURN INDUSTRIES, INC. a/k/a and
Successor-in-Interest to ERIE CITY IRON WORKS,
Defendants.
The plaintiff, MICHELLE SULLIVAN, Administratrix d.b.n. of the Estate of RONALD
J. JARNOT, by her attorneys, LIPSITZ GREEN SCIME CAMBRIA LLP for her Second
Amended Complaint against each and every defendant allege:
1. That at all times hereinafter mentioned, the plaintiff, was and still is a
citizen of the State of New York and resident of the County of Erie.
2. That on or about the 3rd day of April, 2018, the plaintiff, MICHELLE
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SULLIVAN, was appointed Administratrix d.b.n. of the Estate of RONALD J. JARNOT,
pursuant to an Order of the Surrogate's Court of the County of Erie, State of New York,
and Letters of Administation d.b.n. of the Estate of RONALD JARNOT were
served on the plaintiff, MICHELLE SULLIVAN, and the said plaintiff thereupon duly
qualified and thereafter acted and is still acting as such Administratrix.
3. If it is deemed that Article 16 of the CPLR applies to this action, the plaintiff
asserts that this action falls within one or more of the exceptions set forth in CPLR 1602
including, but not limited to, the exception for cases where a person is held liable for
causing the claimant's injury by having acted with reckless disregard for the safety of
others; the exception for cases involving any person held liable for causing claimant's
injury by having unlawfully released into the environment asubstance hazardousto public
health, safety or the environment; and the exception for any parties found to have acted
knowingly or intentionally and in concert to cause the acts or failures upon which liability
is based.
4. Upon information and belief, at all times hereinafter mentioned, the
defendant, AIR 8 LIQUID SYSTEMS CORPORATION as Successor by Merger to
BUFFALO PUMPS, INC., was and still is a foreign corporation doing business and/or
transacting the State of New York. At all times relevant, it has engaged in the
manufacture, sale and distribution of materials and products containing the substance
asbestos.
5. Upon information and belief, at all times hereinafter mentioned, the
defendant, BEAZER EAST, INC. formerly known as BEAZER MATERIALS 8
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SERVICES, INC., formerly known as KOPPERS CO. INC. was and still is a foreign
business corporation which transacted business in the State of New York, with its
principal place of business outside the State of New York. At all times relevant, it has
engaged in the design, construction, maintenance and repair of coke ovens and coke
oven batteries, as well as in the sale of goods and contracting services or the
construction of coke ovens at the former Bethlehem Steel Corporation facility in
Lackawanna, N ew York. The said defendant engaged in the direction and control of the
installation and maintenance of asbestos-containing materials used in the construction,
maintenance, and repair of coke oven facilities at the Lackawanna site. Upon information
and belief, the defendant, in connection with the construction of coke ovens at the
Lackawanna site, sold to the former Bethlehem Steel Corporation asbestos rope,
asbestos paper, asbestos pipe insulation, asbestos block insulation, insulating cement,
asbestos millboard, asbestos felt, castables, gaskets, gunnite and bitumastic products,
all of which contained the substance asbestos.
6. Upon information and belief, at all times hereinafter mentioned, the
Defendant CBS CORPORATION f/k/a VIACOM INC., Successor by Merger to CBS
CORPORATION f/k/a WESTINGHOUS ELECTRIC CORPORATION was and is a duly
organized foreign corporation doing business and/or transacting business in the State of
New York. At all times relevant, it has engaged in the sale and distribution of material and
products containing the substance asbestos.
7. Upon information and belief, and at all times hereinafter mentioned, the
defendant, CINCINNATI VALUE COMPANY, was and is a foreign corporation doing
business and/or transacting business in the State of New York. At all times, it has
engaged in the sale and distribution of material and products containing the substance
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asbestos.
8. Upon information and belief, and at all times hereinafter mentioned, the
defendant, CRANE CO., was and is a foreign corporation doing business and/or
transacting business in the State of New York. At all times, it has engaged in the sale and
distribution of material and products containing the substance asbestos.
9. Upon information and belief, at all times hereinafter mentioned, the
defendant, FERRO ENGINEERING DIVISION OF ON MARINE SERVICES
COMPANY, LLC., was and still is a foreign corporation unauthorized to transact
business in the State of New York, with its principal place of business outside the State
of New York. At all times relevant, it has engaged in the manufacture, sale and
distribution of materials and products containing the substance asbestos.
10. Upon information and belief, at all times hereinafter mentioned, the
defendant, FLOWSERVE US, INC., solely as successor to ROCKWELL
MANUFACTURING COMPANY, EDWARD VALVES, INC., NORDSTROM VALVES,
INC. and EDWARD VOGT VALVE COMPANY, was and still is a foreign corporation
authorized to and transacting business in the State of New York, with its principal place
of business outside the State of New York. At all times relevant, it has engaged in the
manufacture, sale and distribution of materials and products containing the substance
asbestos.
11. Upon information and belief, at all times hereinafter mentioned, the
defendant, FOSECO, INC. was and still is a foreign corporation authorized to and
transacting business in the State of New York, with its principal place of business
outside the State of New York. At all times relevant, it has engaged in the manufacture,
sale and distribution of materials and products containing the substance asbestos.
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12. Upon information and belief, the defendant, FRONTIER INSULATON
CONTRACTORS, INC. f/k/a FRONTIER INSULATION AND ASBSTOS, INC. was and
still is a domestic corporation duly organized and existing under add by virtue of the laws
of the State of New York. At all times relevant, it has engaged in the sale and distribution
of materials and products containing the substance asbestos.
13. Upon information and belief, at all times hereinafter mentioned, the
defendant, GOULDS PUMPS, INC. was and still is a foreign corporation authorized to
and transacting business in the State of New York, with its principal place of business
outside the State of New York. At all times relevant, it has engaged in the manufacture,
sale and distribution of materials and products containing the substance asbestos.
14. Upon information and belief, at all times hereinafter mentioned, the
defendant, GRINNELL, LLC, was and still is a foreign corporation which transacted
business in the State of New York with its principal place of business outside the State
of New York. At all times relevant, it has engaged in the manufacture, sale and distribution
of materials and products containing the substance asbestos.
15. Upon information and belief, at all times hereinafter mentioned, the
defendant, HONEYWELL INTERNATIONAL INC. as Successor in Interest to
WILPUTTE COKE OVEN, DIVISION OF ALLIED SIGNAL, INC. was and still is a foreign
business corporation which transacted business in the State of New York, with its
principal place of business outside the State of New York. At all times relevant, it has
engaged in the design, construction, maintenance and repair of coke ovens and coke
oven batteries, as well as in the sale of goods and contracting services or the
construction of coke ovens at the former Bethlehem Steel Corporation facility in
Lackawanna, New York. The said defendant engaged in the direction and control of the
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installation and maintenance of asbestos-containing materials used in the construction,
maintenance, and repair of coke oven facilities at the Lackawanna site. Upon information
and belief, the defendant, in connection with the construction of coke ovens at the
Lackawanna site, sold to the former Bethlehem Steel Corporation asbestos rope,
asbestos paper, asbestos pie insulation, asbestos block insulation, insulating cement,
asbestos millboard, asbestos felt, castables, gaskets, gunnite and bitumastic products,
all of which contained the substance asbestos.
16. Upon information and belief, at all times hereinafter mentioned, the
defendant, INGERSOLL-RAND COMPANY, was and still is a foreign corporation
authorized to do business within the State of New York with its principal place of business
outside the State of New York. At all times relevant, it has engaged in the manufacture,
sale and distribution of materials and products containing the substance asbestos.
17. Upon information and belief, at all times hereinafter mentioned, the
defendant, INSULATION DISTRIBUTORS, INC., was and still is a domestic corporation
duly organized and existing under and by virtue of the Laws of the State of New York. At
all times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
18. Upon information and belief, at all times hereinafter mentioned, the
defendant, J.H. FRANCE REFRACTORIES CO., INC., a subsidiary of ADIENCE INC.,
was and still is a foreign corporation, not authorized to transact business in the State of
New York with its principal place of business outside the State of New York. At all
times relevant, it has engaged in the manufacture, sale and distribution of materials and
products containing the substance asbestos.
19. Upon information and belief, at all times hereinafter mentioned, the
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defendant JOHN CRANE, INC., was and is a foreign corporation doing business and/or
transacting business in the State of New York. At all times relevant, it has engaged in
the sale and distribution of materials and products containing the substance asbestos.
20. Upon information and belief, at all times hereinafter mentioned, the
defendant, LACO SALES INC., individually and as successor to LACO ROOFING AND
ASBESTOS COMPANY INC., was and still is a domestic corporation duly organized and
existing under and by virtue of the Laws of the State of New York. At all times relevant,
it has engaged in the manufacture, sale and distribution of materials and products
containing the substance asbestos.
21. Upon information and belief, at all times hereinafter mentioned, the
defendant, METROPOLITAN LIFE INSURANCE COMPANY, was and still is a foreign
corporation doing business and/or transacting business in the State of New York. At all
times, it has engaged in the sale and distribution of material and products containing the
substance asbestos.
22. Upon information and belief, at all times hereinafter mentioned, the
defendant, NIAGARA INSULATIONS, INC., f/k/a NIAGARA ASBESTOS CO., INC., was
and still is a domestic corporation duly organized and existing under and by virtue of the
Laws of the State of New York. At all times relevant, it has engaged in the sale and
distribution of materials and products containing the substance asbestos.
23. Upon information and belief, at all times hereinafter mentioned, the
defendant NIBCO INC. was and still is a foreign corporation doing business and/or
transacting business in the State of New York. At all times relevant, it has engaged in the
sale and distribution of materials and products containing the substance asbestos.
24. Upon information and belief, at all times hereinafter mentioned, the
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defendant, OWENS-ILLINOIS, INC. was and still is a foreign corporation authorized to
transact business in the State of New York, with its principal place of business outside
the State of New York. At all times relevant, it has engaged in the sale and distribution of
materials and products containing the substance asbestos.
25. Upon information and belief, at all times hereinafter mentioned, the
defendant, RILEY POWER INC. f/k/a BABCOCK BORSIG POWER, INC. f/k/a DB
RILEY, INC. f/k/a RILEY STOKER CORPOlRATION, was and still is a foreign corporation
authorized to transact business in the State of New York. At all times relevant, it has
engaged in the sale and distribution of materials and products containing the substance
asbestos.
26. Upon information and belief, at all times hereinafter mentioned, the
defendant, SEALING DEVICES INC., was and still is a domestic corporation duly
organized and existing under and by virtue of the laws of the State of New York, At all
times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
27. Upon information and belief, at all times hereinafter mentioned, the
defendant THIEM CORPORATION, as Successor by Merger to THIEM
CORPORATION,as Successor by Merger to UNIVERSAL REFRACTORIES CORP., was
and still is a foreign business corporation authorized to and transacting business in the
State of New York, with its principal place of business outside the State of New York. At
alltimes relevant it has engaged in the manufacture, sale and distribution of materials and
products containing the substance asbestos.
28. Upon information and belief, at all times hereinafter mentioned, the
defendant, UNION CARBIDE CORPORATION, was and still is a domestic corporation
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duly organized and existing under and by virtue of the laws of the State of New York,
At all times relevant, it has engaged in the sale and distribution of materials and products
containing the substance asbestos.
29. Upon information and belief, and at all times hereinafter mentioned, the
defendant, ZURN INDUSTRIES INC. a/k/a and Successor-in-Interest to ERIE CITY IRON
WORKS was and is a foreign corporation doing business and/or transacting business in
the State of New York. At all times, it has engaged in the sale and distribution of material
and products containing the substance asbestos.
30. Plaintiff's decedent handled in the course of his employment, or was
otherwise exposed to large amounts of various asbestos-containing products and
materials manufactured and marketed by the above-captioned defendants due to the use
of asbestos materials and products by his co-employees and others.
31. Asbestos-containing products and materials were manufactured,
compounded and fabricated by the defendants, acting through their agents, employees
and representatives, and were subsequently placed in the market and sold in commerce.
32. Upon information and belief, the named defendants manufactured,
marketed, sold, distributed, relabeled and commingled those asbestos-containing
products which plaintiff's decedent was exposed to during the course of his employment.
33. That the defendants, acting in concert, failed to disclose to plaintiff's
decedent and those similarly situated, or warn them of the known dangers associated
with the use ofdefendants'
asbestos-containing products.Defendants'
concerted action
took either the form of an express or implied agreement not to warn or was achieved by
providing substantial assistance or encouragement to one another in their wrongful
course of conduct. As a result ofdefendants'
concerted action, plaintiff's decedent
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suffered personal injuries which led directly to his untimely death.
34. Defendants collectively comprised virtually the entire asbestos
manufacturing industry supplying the geographical locations wherein plaintiff's decedent
worked during the course of his employment. Defendants, acting as part of an industry-
wide enterprise to manufacture asbestos-containing products, failed to disclose to the
plaintiff's decedent and those similarly situated, or warn them of the known dangers
associated with the use ofdefendants'
asbestos-containing products. As participants in
a joint enterprise, the defendants had the capacity to reduce, eliminate or affect the risks
of exposure to asbestos but nonetheless they embraced, endorsed and profited from a
policy not to warn plaintiff's decedent. As a result ofdefendants'
joint action, plaintiff's
decedent suffered personal injuries which led directly to his untimely death.
35. Defendants, acting in combination with one or more of the others, failed to
disclose to plaintiff's decedent and those similarly situated, or warn them of the known
dangers associated with the use ofdefendants'
asbestos-containing products.
Defendants manufactured and supplied those asbestos-containing products to which
plaintiff's decedent was exposed during the course of his employment and are
therefore liable collectively or in the alternative for all of the personal injuries plaintiff's
decedent suffered therefrom.
36. As manufacturers and suppliers of a substantial share of the asbestos-
containing products to which plaintiff's decedent was exposed during his employment,
defendants should be held liable for the personal injuries suffered by plaintiff's decedent
on the basis of at least the proportionate share of the relevant market enjoyed by each
defendant.
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AS AND FOR A FIRST CAUSE OF ACTION, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
37. The plaintiff repeats and realleges each and every allegation contained in
paragraphs"1"
through"36"
of the Second Amended Complaint herein with the same
force and effect as if fully set forth herein.
38. The inhalation of asbestos dust and asbestos-containing particles is highly
dangerous, proximately causing mesothelioma, asbestosis and other severe lung
diseases, and cancer.
39. By reason of exposure to and inhalation of asbestos particles and dust,
and other contaminates found indefendants'
products and materials plaintiff's decedent
contracted an incurable asbestos-related disease which ultimately led to his untimely
death.
40. It is well established and has been well-known for many years that the
inhalation of asbestos dust and particles is extremely hazardous and dangerous. The
defendants, as manufacturers or distributors of asbestos products and materials knew,
or should have known, of its hazards and dangers.
41. The defendants knew, or should have known, that plaintiff's decedent
would not have knowledge of the hazards of asbestos products and materials with which
he worked and which the defendants manufactured and marketed.
42. The defendants did not adequately test their asbestos-containing products
and materials and did not take reasonable precautions in their manufacture and
marketing, nor did they exercise reasonable care to warn of the dangers of use or
exposure to their products and materials; they also failed to give sufficient instructions in
the safe use and handling thereof.
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43. The defendants intentionally and willfully failed to adequately warn of the
known dangers of exposure to their products and materials and/or to give adequate
instruction in the safe use and handling thereof.
44. As a proximate result of thedefendants'
negligence in their failure to
properly manufacture, test and label their products, and their willful and intentional failure
to warn plaintiff's decedent and other reasonably foreseeable users of the severe hazards
inherent in the use or exposure to their asbestos products and materials, plaintiff's
decedent contracted an incurable asbestos-related disease.
45. Plaintiff's decedent did not contribute in any manner to his own injuries.
46. By reason of the injuries to and the death ofplaintiffs'
decedent, the Estate
of the decedent has paid for necessary medical treatment, hospitalization and funeral
expenses.
47. As a result of the foregoing, the deceased prior to his premature death,
sustained bodily injury and suffered great pain and suffering, and accordingly the
plaintiff seeks appropriate recompense in such sum as the trier of fact shall determine.
The amount of damages sought herein exceeds the jurisdictional limits of all other courts,
which might otherwise have jurisdiction herein.
48. The intentional and willful conduct above complained of against the
defendants was aimed against the public as well as plaintiff's decedent; was grossly
unjust and involved high moral culpability for which punitive damages should be
assessed in the sum as the trier of fact shall determine. The amount of damages sought
herein exceeds the jurisdictional limits of all other courts which might otherwise have
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jurisdiction herein.
AS AND FOR A SECOND CAUSE OF ACTION, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
49. Plaintiff repeats and realleges the allegations contained in paragraphs"1"
through"48"
of the Second Amended Complaint.
50. The defendants willfully and intentionally refused to disclose known
defects and hazards in the asbestos-containing products they manufactured and/or
placed into the stream of commerce.
51. As a result of thedefendants'
failure, among other things, to test their
products for hazards, or to give adequate warning of their danger, or to give instructions
in their use and handling, thedefendants'
products were manufactured and marketed in
a defective condition, were unreasonably dangerous to users such as plaintiff's decedent,
and proximately caused plaintiff decedent's injuries and death.
52. Plaintiff's decedent used the products manufactured and sold by
defendants for the purpose and in the manner normally intended.
53. Plaintiff's decedent could not have, in the exercise of reasonable care
discovered the defects and hazardous nature of the products manufactured and
marketed by the defendants, nor perceived the dangers thereof, nor otherwise averted
his injuries and damages.
54. By reason of the foregoing, the defendants are strictly liable to plaintiff in
the amount as the trier of fact shall determine. The amount of damages sought herein
exceeds the jurisdictional limits of all other courts, which might otherwise have jurisdiction
herein.
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AS AND FOR A THIRD CAUSE OF ACTION, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
55. Plaintiff repeats and realleges the allegations contained in paragraphs"1"
through"54"
of the Second Amended Complaint.
56. The following acts complained of occurred continuously and
simultaneously with thedefendants'
manufacture, marketing, sale, distribution, relabeling,
commingling, loaning or exchanging of their asbestos containing products.
57. Each defendant, individually and/or in combination with one or more of the
co-defendants, falsely stated, advertised or otherwise represented to plaintiff's decedent,
to other purchasers and users of their asbestos products, and to the public that, as a
matter of fact, there were no health hazards of any significance associated with the
purchase, use or exposure todefendants'
asbestos products.
58. The defendants knew such statements, representations and
advertisements to be false, misleading or incomplete at the time they were made.
59. The defendants made such statements, advertisements or
misrepresentations with reckless indifference as to whether they were true or complete
at the time they were made.
60. The facts were that their asbestos products were known by the defendants
to be unsafe to the health of purchasers, users, or those otherwise exposed to their
asbestos products.
61. In contradiction to that known data, or in reckless indifference to its
the defendants intentionally misrepresented, advertised or otherwise
knowingly and intentionally created the false impression in plaintiff's decedent, other
purchasers and users of asbestos products, and among the public that, in fact their
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asbestos products carried little or no health hazards and that no question existed as to
the safety of their purchase, use or exposure.
62. That impression was false because medical and historical data known by
the defendants indicated the presence and/or potential of significant health hazards in
the purchase, use and exposure to their asbestos products.
63. These false or recklessly indifferent representations, advertisements or
statements by the defendants, and this false impression of safety, were made with the
intent to deceive the plaintiff's decedent and others into purchasingdefendants'
asbestos products and/or into using, working with, in or about or exposing one self to
defendants'asbestos products.
64. In regard to known or suspected health hazards, the defendants did not
have a good faith belief in the truth, accuracy or completeness of the advertisements,
representations or statements about their asbestos products.
65. Plaintiff's decedent was unaware of the false or incomplete character of
those misrepresentations, advertisements or statements, or of thedefendants'
reckless
indifference to the truth, accuracy or completeness of their content, and was unaware of
the false nature of the impression of safety thereby created by the defendants.
66. In response to the above complained of conduct by the defendants,
plaintiff's decedent, and others, relied, in fact, upon those representations,
advertisements, statements and false impressions of safety to be true, accurate and
complete, and consequently were induced into, deceived into, and did purchase, use,
work with, in or about or otherwise expose themselves todefendants'
asbestos products.
67. Each defendant intentionally suppressed and concealed by affirmative act
material facts, in whole or in part, as to the health hazards associated with the purchase,
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use, or exposure to thedefendants'
asbestos products. The defendants knew such facts
to be significant and material as to the safety of their asbestos products. The defendants
suppressed and concealed the material facts from plaintiff's decedent, purchasers and
users of asbestos products, and the public.
68. The defendants intentionally and willfully concealed and suppressed these
material facts with the intent to deceive, induce or mislead plaintiff's decedent and others
into purchasing, using, working with, in or about, or otherwise exposing themselves to the
asbestos products manufactured or distributed by the defendants.
69. Upon information and belief, the affirmative acts of intentional suppression
and concealment consisted in part, but not exclusively, of the following:
(a) The editing out or alteration by defendants in
in industry supported research studies of
references to asbestos caused diseases;
(b) Prevention of publication to the public and/or
release to the scientific community of medical
research, data and findings as related to
asbestos caused diseases, said data beingproduced by research and studies financed
by the defendants at various research projects;
(c) The intentional refusal to place in its
advertisements of asbestos products available
or known information of known or suspected
health hazards associated with the use of
asbestos products;
(d) The intentional refusal to disclose all or
significant parts of information regarding health
hazards associated with the use of asbestos
products which the defendants acquired from
Workmen's Compensation Insurance carriers
and shared among the defendants;
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(e) The intentional refusal to disclose all or significant
parts of information regarding health hazards associated
with the use of asbestos products which the
defendants acquired throughtheir association or
membership in industry committees, organizations
or gatherings.
70. Upon information and belief, other acts of intentional concealment and
suppression of material facts as to the safety of asbestos products were performed by
the defendants, the details of which lie within knowledge still peculiar to the defendants.
71. Plaintiff's decedent, other users and purchasers of asbestos products, and
the public relied upon thedefendants'
superior knowledge and familiarity with their own
asbestos products and such reliance was known by, or should have been known by, the
defendants.
72. Thedefendants'
intentional failure to disclose known medical and scientific
data on the health hazards of their asbestos products, by itself or in conjunction with this
known reliance upon the defendants to disclose any such information, did in fact
deceiveand induce plaintiff's decedent, the public, and other purchasers and users of
defendants'asbestos products to purchase, use, work with, in or about or otherwise
expose themselves to those asbestos products.
73. Plaintiff's decedent, the public, and other purchasers and users of
asbestos products were otherwise unaware of these intentionally undisclosed and willfully
concealed facts.
74. The defendants did not have a good faith belief that such data was
immaterial or insignificant to plaintiff's decedent, to the public, or to users and
purchasers of asbestos products, or that such data was erroneous, inaccurate or
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otherwise unworthy of dissemination to the scientific community and/or to the public or
plaintiff's decedent.
75. As a result of thedefendants'
acts above complained of,plaintiffs'
decedent did, in fact, suffer severe and permanent physical injuries, conscious pain
and suffering, incur medical expenses, and was otherwise damaged by each and every
defendant in such sum, as the trier of fact shall determine. The amount of damages
sought herein exceeds the jurisdictional limits of all other courts, which might otherwise
have jurisdiction herein.
76. The fraudulent conduct above complained of against the defendants was
aimed against the public as well as the decedent, was grossly unjust and involved high
moral culpability, for which punitive damages should be assessed as the trier of fact shall
determine. The amount of damages sought herein exceeds the jurisdictional limits of all
other courts, which might otherwise have jurisdiction herein.
AS AND FOR A FOURTH CAUSE OF ACTION, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
77. Plaintiff repeats and realleges the allegations contained in paragraphs
"1"through
"76"of the Second Amended Complaint and alleges that the defendants in
the manufacturer, marketing, distribution, sale, relabeling, commingling, loaning or
exchanging of their asbestos products did as follows:
78. The defendants, in combination or in concert with one or more of the
others, did willfully, purposely and by common design, conspire to intentionally defraud
and thus willfully injure the decedent, purchasers and users of asbestos products, and
the public, through the overt affirmative acts complained of in paragraphs"56"
through
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ii 70ii"70".
79. Thedefendants'
intent to defraud the decedent and others was unlawful
and without legal justification or excuse.
80. The decedent and others did in fact rely upon the false representations
and impressions of safety made by the defendants.
81. The decedent, purchasers and users of asbestos products, and the public
were successfully deceived by thedefendants'
conspiracy to defraud, as they did
purchase, use, work with, in or about or otherwise expose themselves todefendants'
asbestos products.
82. As a result of thedefendants'
successful conspiracy to defraud, the
decedent did, in fact, sustain severe and permanent physical injury, experience
conscious pain and suffering, incur medical expenses, and was otherwise damaged by
each and every defendant in such sum as the trier of fact shall determine. The amount
of damages sought herein exceeds the jurisdictional limits of all other courts, which might
otherwise have jurisdiction herein.
83. Thedefendants'
conspiracy to defraud was public or quasi-public in nature
as well as directed to this decedent and was grossly unjust and involved moral
culpability for which punitive damages should be assessed against the defendants in such
sum as the trier of fact shall determine. The amount of damages sought herein exceeds
the jurisdictional limits of all other courts, which might otherwise have jurisdiction herein.
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84. Had the decedent known the truth as to the health hazards associated with
the use of thedefendants'
asbestos products, he would have successfully avoided any
harmful exposure to those products.
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST
DEFENDANTS BEASER EAST, INC., formerly known
as BEAZER MATERIALS 8 SERVICES, INC., formerlyknown as KOPPERS CO. INC and HONEYWELLINTERNATIONAL INC. as Successor-in-interest
to WILPUTTE COKE OVEN, DIVISION OF ALLIEDSIGNAL,
INC., THE PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
85. Plaintiff repeats and realleges the allegations contained in paragraphs"1"
through"84"
of the Second Amended Complaint.
86. That upon information and belief, at all times hereinafter mentioned, the
defendant BEAZER EAST, INC., formerly known as BEAZER MATERIALS 8 SERVICES,
INC., formerly known as KOPPERS CO., INC. and HONEYWELL INTERNATIONAL as
Successor-in-Interest to WILPUTTE COKE OVEN, Division of ALLIEDSIGNAL, INC., was
a contactor of coke ovens and supplied coke ovens and services to the former
Bethlehem Steel Corporation, Lackawanna, New York, were plaintiff's decedent worked.
87. Upon information and belief, during the construction and maintenance of
coke ovens, BEAZER EAST, INC., formerly known as BEAZER MATERIALS 8
SERVICES, INC., formerly known as KOPPERS CO., INC. and HONEYWELL
INTERNATIONAL as Successor-in-Interest to WILPUTTE COKE OVEN, Division of
ALLIEDSIGNAL, INC., failed to properly apply, repair and/or remove asbestos-containing
materials, failed to properly advise those in the area that asbestos was being applied,
repaired and/or removed, failed to provide appropriate respiratory equipment and failed
to advise those in the area they may be exposed to dangerous levels of asbestos.
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88. That upon information and belief, at all times hereinafter mentioned, the
Defendant HONEYWELL INTERNATIONAL INC. as Successor-in-Interest to WILPUTTE
COKE OVEN, DIVISION OF ALLIEDSIGNAL, INC. was a contractor of coke ovens and
supplied coke ovens and services to the former Bethlehem Steel Corporation,
Lackawanna, New York, where plaintiff's decedent worked.
89. Upon information and belief, during the construction and maintenance of
coke ovens, HONEYWELL INTERNATIONAL INC. as Successor-in-Interest to
WILPUTTE COKE OVEN, DIVISION OF ALLIEDSIGNAL, INC. failed to properly apply,
repair and/or remove asbestos-containing materials, failed to properly advise those in the
area that asbestos was being applied, repaired and/or removed, failed to provide
appropriate respiratory equipment and failed to advise those in the area they may be
exposed to dangerous levels of asbestos.
90. That as a result of the negligence of BEAZER EAST, INC. formerly known
as BEAZER MATERIALS & SERVICES, INC, formerly known as KOPPERS CO. INC.
and HONEYWELL INTERNATIONAL INC. as Successor-in-Interest to WILPUTTE
COKE OVEN, DIVISION OF ALLIEDSIGNAL, INC. the plaintiff has sustained damages
in an amount which exceeds the jurisdictional limits of all other courts which might
otherwise have jurisdiction herein.
AS AND FOR A SIXTH CAUSE OF ACTION AGAINST THE
DEFENDANTS BEAZER EAST, INC. formerly known as
BEAZER MATERIALS 8 SERVICES, INC., formerly known
as KOPPERS CO., INC. and HONEYWELL INTERNATIONALINC. as Successor-in-Interest to WILPUTTE COKE OVEN,DIVISION OF ALLIEDSIGNAL, INC., FRONTIER INSULATION
CONTRACTORS f/k/a FRONTIER INSULATION AND ASBESTOS,
INC., INSULATION DISTRIBUTORS INC. AND NIAGARA
INSULATIONS f/k/a NIAGARA ASBESTOS CO., INC, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
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91. The plaintiff repeats and realleges each and every allegation containing in
paragraphs"1"
through"90"
of the Second Amended Complaint herein with the same
force and effect as if fully set forth herein.
92. Upon information and belief, the aforesaid accident and resultant injuries
were caused by the negligence, carelessness, recklessness and unlawful conduct on the
part of the defendants, their agents, servants and/or employees in the ownership of the
construction site and/or as contractor and said negligence was exhibited in, among other
things, failing and omitting to ensure plaintiff's decedent was provided with a safe and
proper place in which to work, and in failing and omitting to comply with the applicable
laws, rules, codes and regulations.
93. Upon information and belief, the defendants, by their agents, servants
and/or employees, as owner of the subject premises and/or contractor at the construction
site, violated the Labor Law of the State of New York, the Industrial Code of the State of
New York and the Federal Occupational Safety and Health Act, and the regulations and
standards promulgated thereunder, and all other applicable provisions, statutory laws,
regulations and rules, both of the State of New York and the United States, thereby
rendering the defendant statutorily an absolutely liable to plaintiff's decedent.
94. As a result of the foregoing, plaintiff has sustained general and special
damages in an amount that exceeds the jurisdiction limits of all lower courts in an amount
that exceeds the jurisdictional limits of all lowers courts which might otherwise have
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jurisdiction.
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST
DEFENDANTS, FRONTIER INSULATION CONTRACTORSf/k/a FRONTIER INSULATION AND ASBESTOS, INC.,
INSULATION DISTRIBUTORS, INC. AND NIAGARA
INSULATIONS, INC. f/k/a NIAGARA ASBESTOS CO. INC.
THE PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
95. The plaintiff repeats and realleges each and every allegation contained in
paragraphs"1"
through'94"
of the Second Amended Complaint herein with the same
force and effect as if fully set forth herein.
96. That at all times hereinafter mentioned, the defendant, FRONTIER
INSULATION CONTRACTORS, INC., f/k/a FRONTIER INSULATION AND
ASBESTOS, INC., was a contractor of insulation services and supplied asbestos-
containing products and services throughout the former Bethlehem Steel plant in
Lackawanna, New York.
97. During the course of asbestos application, FRONTIER INSULATION
CONTRACTORS, INC., f/k/a FRONTIER INSULATION AND ASBESTOS, INC. failed
to properly apply the asbestos, failed to properly advise those in the area that asbestos
was being applied, failed to provide appropriate respiratory equipment and failed to
advise those in the area that they may be exposed to dangerous levels of asbestos.
98. That at all times hereinafter mentioned, the defendant, INSULATION
DISTRIBUTORS, INC., was a contractor of insulation services and supplied asbestos-
containing products and services throughout the former Bethlehem Steel plant in
Lackawanna, New York.
99. During the course of asbestos application, INSULATION DISTRIBUTORS,
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INC. failed to properly apply the asbestos, failed to properly advise those in the area
that asbestos was being applied, failed to provide appropriate respiratory equipment and
failed to advise those in the area that they may be exposed to dangerous levels of
asbestos.
100. That at all times hereinafter mentioned, the defendant, NIAGARA
INSULATIONS, INC., f/k/a NIAGARA ASBESTOS CO., INC., was a contractor of
insulation services and supplied asbestos-containing products and services throughout
the former Bethlehem Steel plant in Lackawanna, New York.
101. During the course of asbestos application, NIAGARA INSULATIONS,
INC., f/k/a NIAGARA ASBESTOS CO., INC. failed to properly apply the asbestos, failed
to properly advise those in the area that asbestos was being applied, failed to provide
appropriate respiratory equipment and failed to advise those in the area that they may be
exposed to dangerous levels of asbestos.
102. As a result of the negligence of FRONTIER INSULATION
CONTRACTORS, INC., f/k/a FRONTIER INSULATION AND ASBESTOS, INC.,
INSULATION DISTRIBUTORS, INC., and NIAGARA INSULATIONS, INC., f/k/a
NIAGARA ASBESTOS CO., INC., the plaintiff has sustained general and special
damages in an amount that exceeds the jurisdictional limits of all lowers courts which
might otherwise have jurisdiction.
AS AND FOR AN EIGHTH CAUSE OF ACTION, THE
PLAINTIFF, MICHELLE SULLIVAN, ALLEGES:
103. Plaintiff repeats and realleges the allegations contained in paragraphs"1"
through"102"
of the Second Amended Complaint.
104. Decedent died of an incurable disease caused exclusively by exposure to
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asbestos.
105. Decedent left him surviving his children, who were dependent upon him at
the date of his death.
106. The said children, were to a degree dependent upon the deceased to
an extent for their support and maintenance, and have been damaged in the sum as the
trier of fact shall determine. The amount of damages sought herein exceeds the
jurisdictional limits of all other courts, which might otherwise have jurisdiction herein.
107. The intentional and willful intentional and willful conduct above complained
of against the defendants was aimed against the public as well as the decedent; was
grossly unjust and involved high moral culpability for which punitive damages should be
assessed in such sum as the trier of fact shall determine. The amount of damages sought
herein exceeds the jurisdictional limits of all other courts, which might otherwise have
jurisdiction herein.
108. Decedent died on November 12, 2014 solely as a result of injuries inflicted
by the defendants acting individually, in concert, as participants in a joint enterprise, in
various combinations with one another, and as profiteers in the asbestos products market.
WHEREFORE, plaintiff demands judgment against the defendants on each and
every cause of action alleged in this Second Amended Complaint for compensatory and
punitive damages in such sum as shall be determined by the trier of fact, together with
such other and further relief as may be just and proper together with the costs and
disbursements of this action.
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)
Dated: Buffalo, New York
April 23, 2018
You c.
CHERIE L. PETERSON, ESQ.
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Plaintiff
Office and Post Office Address
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3857
(716) 849-1333
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SUPREME COURT OF THE STATE OF NEW YORKEIGHTH JUDICIAL DISTRICT
In re EIGHTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
This document applies to:
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ERIE
MICHELLE SULLIVAN Administratrix
d.b.n. of the Estate of RONALD J.
JARNOT, Deceased
AMENDED PLAINTIFF'S
STATEMENT
Plaintiff,Index No. 812420/2016
-vs-
AIR 8 LIQUID SYSTEMS CORPORATIONas Successor by Merger to BUFFALO PUMPS, INC.,et al.,
Defendants.
PLEASE STATE:
Nature of Action: Personal Injury XWrongful Death X
As to PLAINTIFF:
1. Full Name: Michelle Sullivan
2. Date of Birth: August 7, 1967
3. Present Address: 6705 Burke Road
Lakeview, New York 14085
4. Social Security Number:
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As to PLAINTIFF'S SPOUSE, if applicable:
5. Full Name:
6. Date of Birth:
7. Present Address:
8. Social Security Number:
As to PLAINTIFF'S DECEDENT, if applicable:
9. Full Name: RONALD J. JARNOT
10. Date of Birth: June 2, 1937
11. Last Address: 3452 A. Emerling Dr., Blasdell, New York 14219
12. Social Security Number:
Date and Place of Death: November 12, 2014
3452 S. Emerling Dr. Blasdell, New York 14219
14. Cause of Death: lung cancer
As to alleged ASBESTOS EXPOSURE:
15. Indicate which of the following types of activities resulted in plaintiff's/decedent's
alleged exposure to asbestos:
(a) Insulating Trade:
(b) Boiler Trade (indicate trade):
(c) Construction Trade (indicate trade):
(d) Plant Worker (indicate plant): Bethlehem Steel Plant - 1957-2000
(e) Brake Lining or Friction Worker:
(f) Non-Occupational (describe):
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(g) Other (describe):
16. Date of First Exposure: 1957
17. Date of Last Exposure: 2000
18. Asbestos containing products to which plaintiff/decedent was allegedly exposed:
Asbestos-containing insulations including pipecovering, block, felts, blankets,
cement, paper, cloth, rope, tape, spray materials, transite pipe and panels, joint
compounds, refractory products, and rock wool.
19. Nature of alleged asbestos related illness and date of diagnosis:
Date of Diagnosis
Asbestosis
Lung Cancer 11/12/14
Mesothelioma
Pleural Changes
Other (identify)
20. Has plaintiff or did decedent ever smoke cigarettes?
Yes X No
If so, state the number of years and the number of packs per day of
plaintiff's/decedent's smoking:
Plaintiff smoked approximately 1 pack of cigarettes per day from 1945 and quit in
1990
21. Has plaintiff been or was decedent exposed to non-asbestos containing products
or substances which have been demonstrated to cause or contribute to lungdisease, injury or dysfunction?
Yes No X
If so, state all such products or substances:
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By:
To the extent plaintiffs (or decedent's) asbestos-related injuries (and subsequent death)are peculiarly associated with exposure to asbestos, no.
22. State all other prior or pending asbestos actions:
Title: None
Venue:
Index or Docket Number:
Status of Action:___________________________________________
Title: None
Venue:
Index or Docket Number:
Status of Action:______________________________________-------
Title: None
Venue:
Index or Docket Number:
Status of Action:______________________________________________
DATED: Buffalo, New York
April 23, 2018
CHERIE L. PETERSON, ESQ.
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Plaintiff
Office and P. O. Address
42 Delaware Avenue, Suite 120
Buffalo, New York 14202-3857
(716) 849-1333
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