Preview
CAUSE NO. 2022-46671-ASB
BEFORE THE ASBESTOS MDL PRE-TRIAL JUDGE
BENNIE G. FREED, SR. § IN THE DISTRICT COURT OF
§
Plaintiff,
§
vs. § HARRIS COUNTY, TEXAS
§
AECOM ENERGY & §
CONSTRUCTION, INC. f/k/a URS §
ENERGY & CONSTRUCTION, §
INC., et al. §
§
Defendants. § 11TH JUDICIAL DISTRICT
Transferred from:
CAUSE NO. 2022-46671
BENNIE G. FREED, SR. § IN THE DISTRICT COURT OF
§
Plaintiff,
§
vs. § HARRIS COUNTY, TEXAS
§
AECOM ENERGY & §
CONSTRUCTION, INC. f/k/a URS §
ENERGY & CONSTRUCTION, §
INC., et al. §
§
Defendants. § 11TH JUDICIAL DISTRICT
DEFENDANT J-M MANUFACTURING COMPANY, INC.’S
ANSWER TO PLAINTIFF’S ORIGINAL PETITION, CROSS-ACTION
AND ANSWER TO ALL CROSS-ACTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW J-M MANUFACTURING COMPANY, INC., (“J-MM”), a
Defendant in the above-entitled and numbered cause of action, and files this its Answer,
Cross-Action, and Answer to All Cross-Actions in response to Plaintiff’s Original
Petition, and in support thereof would respectfully show this Court as follows:
GENERAL DENIAL
I.
Defendant J-MM generally denies each and every, all and singular, of the
material allegations of fact contained in Plaintiff’s Original Petition, says the same are
untrue in whole or in part, and demands strict proof of the evidence before a jury.
ANSWER AND AFFIRMATIVE DEFENSES
II.
In the alternative, Plaintiff’s Petition fails to state a cause of action upon which
relief can be granted. Defendant J-MM specially excepts to Plaintiff’s Petition because it
fails to allege with any real specificity a cause of action against it. Plaintiff should be
required to allege a specific basis for recovery against Defendant J-MM.
III.
In the alternative, and by way of affirmative defense, jurisdiction to proceed with
this action is barred by the Due Process Clause of the Fourteenth Amendment of the
United States Constitution because the State of Texas lacks sufficient contacts with the
parties and the controversy to render the assertion of jurisdiction fair and reasonable.
IV.
In the alternative, and by way of affirmative defense, Defendant J-MM denies that
Plaintiff sustained any injury as a result of contact with or use of any product sold,
supplied, or distributed by J-MM.
V.
In the alternative, and by way of affirmative defense, Plaintiff is barred from
recovery herein by the applicable Statutes of Limitations.
VI.
In the alternative, and by way of affirmative defense, Plaintiff is barred from
recovery herein by the doctrine of misuse or improper use which proximately caused or
proximately contributed to cause the injuries about which Plaintiff complains herein.
VII.
In the alternative, and by way of affirmative defense, Plaintiff is barred from
recovery herein by the doctrine of comparative negligence and/or comparative causation.
VIII.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that the claims of Plaintiff are in all things barred pursuant to the doctrine of assumption
of the risk.
IX.
In the alternative, and by way of affirmative defense, any alleged injury and
damage sustained by Plaintiff was worsened by the failure of Plaintiff to act to mitigate
such damage and injury.
X.
In the alternative, and by way of affirmative defense, Defendant J-MM never
made any warranties to the Plaintiff upon which the Plaintiff relied.
XI.
In the alternative, and by way of affirmative defense, the purchaser of products
and/or services designated in the Petition and all third-party beneficiaries of any
warranties, whether express or implied, relating to the product or services failed to
provide notice of the alleged breaches of warranty to Defendant J-MM pursuant to the
applicable provision of the Uniform Commercial Code.
XII.
In the alternative, and by way of affirmative defense, the Plaintiff failed to timely
assert any claim under UCC Section 2-725, and, accordingly, any such claim is now
time-barred.
XIII.
In the alternative, and by way of affirmative defense, the Plaintiff never
purchased any asbestos containing products from Defendant J-MM and, accordingly, the
Plaintiff’s claim must fail for want of privity.
XIV.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that any injuries and damages alleged by Plaintiff were solely caused by the acts and
omissions of others over whom J-MM had no supervision, control, or responsibility and
there was no damage from the conduct of J-MM.
XV.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that Plaintiff’s alleged injuries and damages resulted from new and independent,
intervening and/or superseding causes beyond the control of and unrelated to any
conduct or product of Defendant J-MM.
XVI.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that Plaintiff and/or Plaintiff’s employer were sophisticated users with knowledge of
the products used and the risks incident thereto. Since Plaintiff and his employer were
using their own manner, means, and method of doing their work, J-MM breached no
duty owing to them.
XVII.
If it should be proven at the time of trial that the Plaintiff was exposed to
asbestos-containing products alleged to have been in any way connected to Defendant
J-MM, which is denied, then any such products were furnished or present in strict
conformity to the conditions specified or to the specifications furnished by the
Plaintiff’s employers or by the United States government.
XVIII.
Defendant J-MM did not deal directly with any end purchaser or user of any
product referred to in Plaintiffs’ Petition. The seller and/or purchaser of such a product
and/or Plaintiff’s employers were in a better position to warn the Plaintiff, if such a
warning was required, and their failure to do so was a superseding cause of any injury to
Plaintiff.
XIX.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that the condition about which Plaintiff complains is due to causes other than exposure to
asbestos.
XX.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
Plaintiff has no claim based upon allegations of strict liability in tort prior to June 6,
1967, when the Texas Supreme Court first adopted the rules of strict liability set forth in
Restatement (second) of Torts §402A. Until this time, when the Supreme Court of Texas
decided McKisson vs. Sales Affiliates, Inc., 416 S.W.2d 787, the doctrine of "strict
liability" had not applied to manufacturers or sellers of non-food products. All claims
which are or may be asserted by Plaintiff for recovery based upon strict liability for
exposure prior to June 7, 1967 should therefore be denied. Further, the application of
strict liability on a retroactive basis would be violative of Article I, §16, of the Texas
Constitution.
XXI.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
Plaintiff’s injuries, if any, were pre-existing and/or not the result of any contact with any
products sold, supplied, or distributed by J-MM.
XXII.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
it did not sell or distribute asbestos-containing products during the alleged time of
exposure by Plaintiff.
XXIII.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
Plaintiff’s action against J-MM for injuries sustained, if any, from asbestos-containing
products is barred by the exclusive remedy provision of the Workers Compensation Act.
XXIV.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
it is not legally liable for the sale, distribution, application, or manufacture of any
asbestos-containing product by any former or current subsidiary or predecessor.
XXV.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
Plaintiff’s damages, if any, were caused by negligent acts or omissions or breach of
warranty of third parties or other Defendants and/or exposure to certain products
manufactured or distributed by said third parties or Defendants and, under the Supreme
Court of Texas opinion in Duncan v. Cessna Aircraft Company II, J-MM is entitled to a
comparative apportionment of fault, if any, as to the other Defendants and Cross-
Defendants and/or third parties and are entitled to a judgment against them herein for
contribution and/or indemnity or a percentage reduction in accordance with the
apportionment of fault.
XXVI.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that Plaintiff’s claims of injuries and damages, if any, were the result of an unavoidable
accident or occurrence.
XXVII.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
any alleged defects in its product, if any, were beyond the scientific and medical
knowledge available at the time of manufacturing, and the state-of-the-art prevented J-
MM from knowing any defect.
XXVIII.
If it should be proven at the time of trial that the Plaintiff was exposed to
asbestos containing products alleged to have been designed, sold, distributed, supplied
and/or utilized by Defendant J-MM, such products were accompanied by adequate
warnings which were in conformity with the existing state of the art in regard to the
foreseeable use of said products or materials.
XIX.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges that
the products which it sold were at all times reasonably fit and suitable for the purposes
for which they were sold and J-MM denies that such products were in any way defective
for the use for which they were sold.
XXX.
To the extent that Plaintiff was exposed to any product containing asbestos as a
result of conduct by Defendant J-MM, which it expressly denies, said exposure was de
minimus and not a substantial contributing factor to any asbestos-related disease with the
Plaintiff may have developed, and is thus not actionable in law or equity.
XXXI.
In the alternative, and by way of affirmative defense, Defendant J-MM alleges
that the claims of Plaintiff are in all things barred pursuant to the doctrine of federal
implied and/or express preemption.
XXXII.
Defendant J-MM would show that unless J-MM 's liability for punitive damages
and the appropriate amount of punitive damages are each required to be established by
clear and convincing evidence under Texas law, any award of damages would violate J-
MM 's due process rights guaranteed by the Fourteenth Amendment to the United States
Constitution and by Section 19 of Article I of the Texas Constitution.
XXXIII.
Defendant J-MM would show that Plaintiff’s claim for punitive damages against J-
MM cannot be sustained, because any award of punitive damages under Texas law
without bifurcating the trial as to all punitive damages issues would violate J-MM’s due
process rights guaranteed by the Fourteenth Amendment to the United States Constitution
and by Section 19 of Article I of the Texas Constitution.
XXXIV.
Defendant J-MM would show that Plaintiff’s claim for punitive damages against
J-MM cannot be sustained, because an award of punitive damages under Texas law
subject to no predetermined limit on the amount of punitive damages that a jury may
impose, such as a maximum multiple of compensatory damages or a maximum dollar
amount, would violate the Excessive Fines Clause of the United States Constitution and
Defendant's due process rights guaranteed by the Fourteenth Amendment to the United
States Constitution and by Section 19 of Article I of the Texas Constitution.
XXXV.
Defendant J-MM would show that Plaintiff’s claim for punitive damages against J-
MM cannot be sustained, because an award of punitive damages under Texas law by a
jury that
(1) is not provided any standard of sufficient clarity for determining the
appropriateness, or the appropriate size, of any punitive damages award,
(2) is not instructed on the limits on punitive damages imposed by the applicable
principles of deterrence,
(3) is not expressly prohibited from awarding punitive damages, or determining the
amount of an award of punitive damages, in whole or in part, on the basis of
invidiously discriminatory characteristics,
(4) is permitted to award punitive damages that is vague and arbitrary and does not
define with sufficient clarity the conduct or mental state that makes punitive
damages permissible, and
(5) is not subject to judicial review on the basis of objective standards, would
violate J-MM 's due process rights guaranteed by the Fourteenth Amendment to
the United States Constitution and by Section 19 of Article I of the Texas
Constitution.
XXXVI.
Defendant J-MM would show that Plaintiff’s claim for punitive damages against
J-MM cannot be sustained, because an award of punitive damages under Texas law
without proof of every element by clear and convincing evidence would violate J-MM 's
rights under Amendments IV, V, VI and XIV to the United States Constitution and under
Sections 9, 10, 14 and 19 of Article I of the Texas Constitution.
XXXVII.
Defendant J-MM would show that this court does not have jurisdiction nor
authority to award punitive damages for any alleged act or omission which occurred
outside the State of Texas. Defendant J-MM further would show that pursuant to the
doctrine of BMW of North America v. Gore, 116 S.Ct. 1589 (1996), no state has the
power to project its practices and policies upon any other sister state; therefore, the court
sitting in the state of Texas lacks the authority or jurisdiction to award punitive damages
for alleged acts or omissions, whether the result of intentional misconduct or negligence,
which occurs outside the state of Texas. Any such award of punitive damages would be
grossly excessive, unconstitutional, and in violation of the due process clause of the U.S.
Constitution.
XXXVIII.
Defendant J-MM alleges that as a property owner, it is not liable for personal
injury, death, or property damage to a contractor, subcontractor, or an employee of a
contractor or subcontractor who constructs, repairs, renovates, or modifies an
improvement to real property, including personal injury, death, or property damage
arising from the failure to provide a work safe workplace pursuant to Chapter 95 of the
Texas Civil Practice and Remedies Code.
XXXIX.
Defendant J-MM adopts by reference each defense not herein above alleged, if
any, that may be alleged in any pleading by any other Defendant or Third-Party
Defendant in this action, heretofore or hereafter filed.
XL.
Defendant J-MM specially excepts to the most recent Petition wherein it is alleged
that Defendants individually and as agents of one another conspired among themselves
and with other asbestos manufacturers and distributors because this allegation is vague,
indefinite and fails to give fair notice to J-MM of whether and how J-MM allegedly
participated in the purported conspiracy.
XLI.
Defendant J-MM specially excepts to the most recent Petition wherein it is alleged
that unidentified Defendants conspired to cause Plaintiff's injuries by exposing Plaintiff
to asbestos-containing products for the reason that said allegation is vague, general,
indefinite and fails to identify the specific Defendants that participated in the alleged
conspiracy and the identity of the products of the Defendants to which Plaintiff was
allegedly exposed.
XLII.
Defendant J-MM specially excepts to the most recent Petition wherein it is alleged
that Defendants conspired to deprive Plaintiff of the opportunity of informed free choice
for the reason that said allegation is vague, global, indefinite and fails to give fair notice
to J-MM of the identity of the specific Defendants and the means or manner in which J-
MM allegedly participated in such alleged conspiracy.
XLIII.
Defendant J-MM specially excepts to the most recent Petition wherein it is
alleged that Defendants performed overt acts in furtherance of an alleged conspiracy for
the reason that said allegation is vague, general and fails to identify the alleged
Defendants and the specific overt acts that were performed.
CROSS-ACTIONS
In the unlikely event that this Defendant is found liable to Plaintiff, Defendant J-
MM alleges it is entitled to indemnity and/or contribution from each of the other
Defendants and/or a credit or pro rata reduction for any amounts paid by settling
Defendants pursuant to Chapter 32 and Chapter 33 of the Texas Civil Practice and
Remedies Code, and/or the doctrine of comparative fault.
ANSWER TO ALL CROSS-ACTIONS
Defendant J-MM generally denies the allegations set forth in any cross-action
filed against it herein by any Defendant or Third-Party Defendant to this action or
later added to this action, says the same are not true and places the burden upon such
Cross-Plaintiff to establish each essential element of any cross-claims alleged in this
action.
REQUEST TRIAL BY JURY
Pursuant to the Texas Rules of Civil Procedure, J-MM requests that the trial of
this case be conducted with a jury as the trier of fact. J-MM will pay the jury fee more
than 30 days in advance of the trial setting as required by the Texas Rules of Civil
Procedure.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, this Defendant, J-M Manufacturing
Company, Inc., prays that upon final hearing hereof, Plaintiff and Cross-Plaintiff take
nothing by this cause, and that J-M Manufacturing Company, Inc., be discharged with its
costs, and for such other and further relief to which the Court may find J-M
Manufacturing Company, Inc., to be justly entitled and such that justice be done.
Respectfully Submitted,
/s/ Laura S. Rahman
Laura S. Rahman
Texas Bar No. 24002980
KEAN MILLER LLP
711 Louisiana Street, Ste 1800 South Tower
Houston, TX 77002
Telephone: 713 844-3000
Fax: 713-844-3030
Laura.Rahman@keanmiller.com
And
Gregory M. Anding
Texas Bar No.
KEAN MILLER LLP
400 Convention St., Ste. 700
P.O. Box 3513 (70821-3513)
Baton Rouge, LA 70802
Telephone: 225-387-0999
Fax: 225-388-9133
Greg.Anding@keanmiller.com
ATTORNEYS FOR DEFENDANT:
J-M MANUFACTURING COMPANY,
INC.
CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing pleading has been served upon
counsel of record for Plaintiff and all known counsel of record by File & ServeXpress
pursuant to the Texas Rules of Civil Procedure on this the 22nd day of September, 2022.
/s/ Laura S. Rahman
Preview
CAUSE NO. 2022-46671-ASB BEFORE THE ASBESTOS MDL PRE-TRIAL JUDGE BENNIE G. FREED, SR. § IN THE DISTRICT COURT OF § Plaintiff, § vs. § HARRIS COUNTY, TEXAS § AECOM ENERGY & § CONSTRUCTION, INC. f/k/a URS § ENERGY & CONSTRUCTION, § INC., et al. § § Defendants. § 11TH JUDICIAL DISTRICT Transferred from: CAUSE NO. 2022-46671 BENNIE G. FREED, SR. § IN THE DISTRICT COURT OF § Plaintiff, § vs. § HARRIS COUNTY, TEXAS § AECOM ENERGY & § CONSTRUCTION, INC. f/k/a URS § ENERGY & CONSTRUCTION, § INC., et al. § § Defendants. § 11TH JUDICIAL DISTRICT DEFENDANT J-M MANUFACTURING COMPANY, INC.’S ANSWER TO PLAINTIFF’S ORIGINAL PETITION, CROSS-ACTION AND ANSWER TO ALL CROSS-ACTIONS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW J-M MANUFACTURING COMPANY, INC., (“J-MM”), a Defendant in the above-entitled and numbered cause of action, and files this its Answer, Cross-Action, and Answer to All Cross-Actions in response to Plaintiff’s Original Petition, and in support thereof would respectfully show this Court as follows: GENERAL DENIAL I. Defendant J-MM generally denies each and every, all and singular, of the material allegations of fact contained in Plaintiff’s Original Petition, says the same are untrue in whole or in part, and demands strict proof of the evidence before a jury. ANSWER AND AFFIRMATIVE DEFENSES II. In the alternative, Plaintiff’s Petition fails to state a cause of action upon which relief can be granted. Defendant J-MM specially excepts to Plaintiff’s Petition because it fails to allege with any real specificity a cause of action against it. Plaintiff should be required to allege a specific basis for recovery against Defendant J-MM. III. In the alternative, and by way of affirmative defense, jurisdiction to proceed with this action is barred by the Due Process Clause of the Fourteenth Amendment of the United States Constitution because the State of Texas lacks sufficient contacts with the parties and the controversy to render the assertion of jurisdiction fair and reasonable. IV. In the alternative, and by way of affirmative defense, Defendant J-MM denies that Plaintiff sustained any injury as a result of contact with or use of any product sold, supplied, or distributed by J-MM. V. In the alternative, and by way of affirmative defense, Plaintiff is barred from recovery herein by the applicable Statutes of Limitations. VI. In the alternative, and by way of affirmative defense, Plaintiff is barred from recovery herein by the doctrine of misuse or improper use which proximately caused or proximately contributed to cause the injuries about which Plaintiff complains herein. VII. In the alternative, and by way of affirmative defense, Plaintiff is barred from recovery herein by the doctrine of comparative negligence and/or comparative causation. VIII. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that the claims of Plaintiff are in all things barred pursuant to the doctrine of assumption of the risk. IX. In the alternative, and by way of affirmative defense, any alleged injury and damage sustained by Plaintiff was worsened by the failure of Plaintiff to act to mitigate such damage and injury. X. In the alternative, and by way of affirmative defense, Defendant J-MM never made any warranties to the Plaintiff upon which the Plaintiff relied. XI. In the alternative, and by way of affirmative defense, the purchaser of products and/or services designated in the Petition and all third-party beneficiaries of any warranties, whether express or implied, relating to the product or services failed to provide notice of the alleged breaches of warranty to Defendant J-MM pursuant to the applicable provision of the Uniform Commercial Code. XII. In the alternative, and by way of affirmative defense, the Plaintiff failed to timely assert any claim under UCC Section 2-725, and, accordingly, any such claim is now time-barred. XIII. In the alternative, and by way of affirmative defense, the Plaintiff never purchased any asbestos containing products from Defendant J-MM and, accordingly, the Plaintiff’s claim must fail for want of privity. XIV. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that any injuries and damages alleged by Plaintiff were solely caused by the acts and omissions of others over whom J-MM had no supervision, control, or responsibility and there was no damage from the conduct of J-MM. XV. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff’s alleged injuries and damages resulted from new and independent, intervening and/or superseding causes beyond the control of and unrelated to any conduct or product of Defendant J-MM. XVI. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff and/or Plaintiff’s employer were sophisticated users with knowledge of the products used and the risks incident thereto. Since Plaintiff and his employer were using their own manner, means, and method of doing their work, J-MM breached no duty owing to them. XVII. If it should be proven at the time of trial that the Plaintiff was exposed to asbestos-containing products alleged to have been in any way connected to Defendant J-MM, which is denied, then any such products were furnished or present in strict conformity to the conditions specified or to the specifications furnished by the Plaintiff’s employers or by the United States government. XVIII. Defendant J-MM did not deal directly with any end purchaser or user of any product referred to in Plaintiffs’ Petition. The seller and/or purchaser of such a product and/or Plaintiff’s employers were in a better position to warn the Plaintiff, if such a warning was required, and their failure to do so was a superseding cause of any injury to Plaintiff. XIX. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that the condition about which Plaintiff complains is due to causes other than exposure to asbestos. XX. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff has no claim based upon allegations of strict liability in tort prior to June 6, 1967, when the Texas Supreme Court first adopted the rules of strict liability set forth in Restatement (second) of Torts §402A. Until this time, when the Supreme Court of Texas decided McKisson vs. Sales Affiliates, Inc., 416 S.W.2d 787, the doctrine of "strict liability" had not applied to manufacturers or sellers of non-food products. All claims which are or may be asserted by Plaintiff for recovery based upon strict liability for exposure prior to June 7, 1967 should therefore be denied. Further, the application of strict liability on a retroactive basis would be violative of Article I, §16, of the Texas Constitution. XXI. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff’s injuries, if any, were pre-existing and/or not the result of any contact with any products sold, supplied, or distributed by J-MM. XXII. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that it did not sell or distribute asbestos-containing products during the alleged time of exposure by Plaintiff. XXIII. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff’s action against J-MM for injuries sustained, if any, from asbestos-containing products is barred by the exclusive remedy provision of the Workers Compensation Act. XXIV. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that it is not legally liable for the sale, distribution, application, or manufacture of any asbestos-containing product by any former or current subsidiary or predecessor. XXV. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff’s damages, if any, were caused by negligent acts or omissions or breach of warranty of third parties or other Defendants and/or exposure to certain products manufactured or distributed by said third parties or Defendants and, under the Supreme Court of Texas opinion in Duncan v. Cessna Aircraft Company II, J-MM is entitled to a comparative apportionment of fault, if any, as to the other Defendants and Cross- Defendants and/or third parties and are entitled to a judgment against them herein for contribution and/or indemnity or a percentage reduction in accordance with the apportionment of fault. XXVI. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that Plaintiff’s claims of injuries and damages, if any, were the result of an unavoidable accident or occurrence. XXVII. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that any alleged defects in its product, if any, were beyond the scientific and medical knowledge available at the time of manufacturing, and the state-of-the-art prevented J- MM from knowing any defect. XXVIII. If it should be proven at the time of trial that the Plaintiff was exposed to asbestos containing products alleged to have been designed, sold, distributed, supplied and/or utilized by Defendant J-MM, such products were accompanied by adequate warnings which were in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. XIX. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that the products which it sold were at all times reasonably fit and suitable for the purposes for which they were sold and J-MM denies that such products were in any way defective for the use for which they were sold. XXX. To the extent that Plaintiff was exposed to any product containing asbestos as a result of conduct by Defendant J-MM, which it expressly denies, said exposure was de minimus and not a substantial contributing factor to any asbestos-related disease with the Plaintiff may have developed, and is thus not actionable in law or equity. XXXI. In the alternative, and by way of affirmative defense, Defendant J-MM alleges that the claims of Plaintiff are in all things barred pursuant to the doctrine of federal implied and/or express preemption. XXXII. Defendant J-MM would show that unless J-MM 's liability for punitive damages and the appropriate amount of punitive damages are each required to be established by clear and convincing evidence under Texas law, any award of damages would violate J- MM 's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by Section 19 of Article I of the Texas Constitution. XXXIII. Defendant J-MM would show that Plaintiff’s claim for punitive damages against J- MM cannot be sustained, because any award of punitive damages under Texas law without bifurcating the trial as to all punitive damages issues would violate J-MM’s due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by Section 19 of Article I of the Texas Constitution. XXXIV. Defendant J-MM would show that Plaintiff’s claim for punitive damages against J-MM cannot be sustained, because an award of punitive damages under Texas law subject to no predetermined limit on the amount of punitive damages that a jury may impose, such as a maximum multiple of compensatory damages or a maximum dollar amount, would violate the Excessive Fines Clause of the United States Constitution and Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by Section 19 of Article I of the Texas Constitution. XXXV. Defendant J-MM would show that Plaintiff’s claim for punitive damages against J- MM cannot be sustained, because an award of punitive damages under Texas law by a jury that (1) is not provided any standard of sufficient clarity for determining the appropriateness, or the appropriate size, of any punitive damages award, (2) is not instructed on the limits on punitive damages imposed by the applicable principles of deterrence, (3) is not expressly prohibited from awarding punitive damages, or determining the amount of an award of punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, (4) is permitted to award punitive damages that is vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes punitive damages permissible, and (5) is not subject to judicial review on the basis of objective standards, would violate J-MM 's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by Section 19 of Article I of the Texas Constitution. XXXVI. Defendant J-MM would show that Plaintiff’s claim for punitive damages against J-MM cannot be sustained, because an award of punitive damages under Texas law without proof of every element by clear and convincing evidence would violate J-MM 's rights under Amendments IV, V, VI and XIV to the United States Constitution and under Sections 9, 10, 14 and 19 of Article I of the Texas Constitution. XXXVII. Defendant J-MM would show that this court does not have jurisdiction nor authority to award punitive damages for any alleged act or omission which occurred outside the State of Texas. Defendant J-MM further would show that pursuant to the doctrine of BMW of North America v. Gore, 116 S.Ct. 1589 (1996), no state has the power to project its practices and policies upon any other sister state; therefore, the court sitting in the state of Texas lacks the authority or jurisdiction to award punitive damages for alleged acts or omissions, whether the result of intentional misconduct or negligence, which occurs outside the state of Texas. Any such award of punitive damages would be grossly excessive, unconstitutional, and in violation of the due process clause of the U.S. Constitution. XXXVIII. Defendant J-MM alleges that as a property owner, it is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a work safe workplace pursuant to Chapter 95 of the Texas Civil Practice and Remedies Code. XXXIX. Defendant J-MM adopts by reference each defense not herein above alleged, if any, that may be alleged in any pleading by any other Defendant or Third-Party Defendant in this action, heretofore or hereafter filed. XL. Defendant J-MM specially excepts to the most recent Petition wherein it is alleged that Defendants individually and as agents of one another conspired among themselves and with other asbestos manufacturers and distributors because this allegation is vague, indefinite and fails to give fair notice to J-MM of whether and how J-MM allegedly participated in the purported conspiracy. XLI. Defendant J-MM specially excepts to the most recent Petition wherein it is alleged that unidentified Defendants conspired to cause Plaintiff's injuries by exposing Plaintiff to asbestos-containing products for the reason that said allegation is vague, general, indefinite and fails to identify the specific Defendants that participated in the alleged conspiracy and the identity of the products of the Defendants to which Plaintiff was allegedly exposed. XLII. Defendant J-MM specially excepts to the most recent Petition wherein it is alleged that Defendants conspired to deprive Plaintiff of the opportunity of informed free choice for the reason that said allegation is vague, global, indefinite and fails to give fair notice to J-MM of the identity of the specific Defendants and the means or manner in which J- MM allegedly participated in such alleged conspiracy. XLIII. Defendant J-MM specially excepts to the most recent Petition wherein it is alleged that Defendants performed overt acts in furtherance of an alleged conspiracy for the reason that said allegation is vague, general and fails to identify the alleged Defendants and the specific overt acts that were performed. CROSS-ACTIONS In the unlikely event that this Defendant is found liable to Plaintiff, Defendant J- MM alleges it is entitled to indemnity and/or contribution from each of the other Defendants and/or a credit or pro rata reduction for any amounts paid by settling Defendants pursuant to Chapter 32 and Chapter 33 of the Texas Civil Practice and Remedies Code, and/or the doctrine of comparative fault. ANSWER TO ALL CROSS-ACTIONS Defendant J-MM generally denies the allegations set forth in any cross-action filed against it herein by any Defendant or Third-Party Defendant to this action or later added to this action, says the same are not true and places the burden upon such Cross-Plaintiff to establish each essential element of any cross-claims alleged in this action. REQUEST TRIAL BY JURY Pursuant to the Texas Rules of Civil Procedure, J-MM requests that the trial of this case be conducted with a jury as the trier of fact. J-MM will pay the jury fee more than 30 days in advance of the trial setting as required by the Texas Rules of Civil Procedure. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, this Defendant, J-M Manufacturing Company, Inc., prays that upon final hearing hereof, Plaintiff and Cross-Plaintiff take nothing by this cause, and that J-M Manufacturing Company, Inc., be discharged with its costs, and for such other and further relief to which the Court may find J-M Manufacturing Company, Inc., to be justly entitled and such that justice be done. Respectfully Submitted, /s/ Laura S. Rahman Laura S. Rahman Texas Bar No. 24002980 KEAN MILLER LLP 711 Louisiana Street, Ste 1800 South Tower Houston, TX 77002 Telephone: 713 844-3000 Fax: 713-844-3030 Laura.Rahman@keanmiller.com And Gregory M. Anding Texas Bar No. KEAN MILLER LLP 400 Convention St., Ste. 700 P.O. Box 3513 (70821-3513) Baton Rouge, LA 70802 Telephone: 225-387-0999 Fax: 225-388-9133 Greg.Anding@keanmiller.com ATTORNEYS FOR DEFENDANT: J-M MANUFACTURING COMPANY, INC. CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing pleading has been served upon counsel of record for Plaintiff and all known counsel of record by File & ServeXpress pursuant to the Texas Rules of Civil Procedure on this the 22nd day of September, 2022. /s/ Laura S. Rahman