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CAUSE NO. 2022-42911-7
NANCY RYALL Individually and as IN THE DISTRICT COURT
Next Friend of , A Minor Child,
Plaintiffs, HARRIS COUNTY, TEXAS
11TH JUDICIAL DISTRICT
H-E-B, P., ET AL.,
Defendants. ASB MDL JUDICIAL DISTRICT
Transferred From
CAUSE NO. -12540
NANCY RYALL Individually and as N THE DISTRICT COURT
Next Friend of , A Minor Child,
Plaintiffs, JUDICIAL DISTRICT
H-E-B, P., ET AL., BEXARCOUNTY, TEXAS
Def endants.
DEFENDANT, NOXELL CORPORATION’S,
ANSWER TO PLAINTIFFS’ ORIGINAL AND FIRST AMENDED PETITION
AND JURY DEMAND
NOW INTO COURT, through undersigned counsel, comes Noxell Corporation
(hereinafter referred "Defendant" , who respectfully responds to Plaintiffs’ Original and
First Amended Petitions (hereinafter referred to as “the Petition”) d any and all Cross-Claims,
if any, filed this matter as follows:
GENERAL DENIAL
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Noxell Corporation generally
denies each and every allegation contained in Plaintiffs’ Original and Firs Amended Petitions
and demands strictproof thereof at the trial of this matter.
SPECIAL EXCEPTION
Noxell Corporation specially excepts to Plaintiffs’ Original and First Amended Petitions
in their entirety and states that said Petitions should be dismissed because Plaintiffs fail to allege
facts, directly or by inference or application, as to this Defendant. Furthermore, the allegation
and prayer of Plaintiffs’ Original and First Amended Petitions are so broad, general, indefinite,
vague, and conclusory that Noxell Corporation cannot reasonably answer or prepare a defense to
Plaintiffs’ allegations and prayer. Specifically, Plaintiffs’ Original and First Amended Petitions
fail to allege the product, equipment or materials allegedly manufactured by Noxell Corporation
r an alleged Noxell Corporation predecessor or subsidiary (for which Noxell Corporation does
not admit liability), that they contend was a cause of or contributed to their alleged injuries.
Moreover, Plaintiffs have not provided any meaningful information as to Plaintiff’s alleged
exposure, such as the manner or location of Plaintiff’s alleged exposure to the alleged Noxell
Corporation products allegedly at issue or a narrowed time period applicable to Noxell
Corporation’ alleged involvement in this case.
n addition, Noxell Corporation ecially excepts to the allegations of gross ne igence to
the extent they are alleged in Plaintif s’ Original and First Amended Petitions because they fa
to identify and set forth the elements of a cause of action specifically against this defendant.
Additionally, or in the alternative, the allegatis of gross negligence, to the extent a lleged, a
vague, general, broad and indefinite; therefore, Noxell Corporation is not given fair notice and
opportunity to prepareits defense to Plaintiffs’ allegations.
Noxell Corporation also specially excepts t Plaintiffs’ claim for punitive or exemplary
damages on the grounds that Plaintiffs fail to set forth facts to support a claim for such an award
against this Defendant. Specifically, Plaintiffs’ Original and First Amended Petitions do not
allege any facts to support a claim that Noxell Corporation acted with fraud, malice or gross
negligence towards Plainti as required under Texas law. Noxell Corporation, therefore, is not
ven fair notice and opportunity to prepare its defense to Plaintiffs’ claim for punitive or
exemplary damages.
AFFIRMATIVE DEFENSE
First Affirmative Defense
The Petition fails to state a claim upon which relief against Defendantmay be g ranted,
and therefore, should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civi
Procedure. Specifically, the Petitio fails to allege facts sufficient to show that this Defendant
had any duty to Plaintiffs, fails to allege facts sufficient to show that this Defendant breached any
duty, and fails to allege facts sufficient to show that the juries alleged by the Plaintis were
caused by exposure to any products or materials for ich this Defendant may be held liable.
The Petition fails to identify ny product of Defendant thatis alleged to have caused or
contributed to Plaintiff’s alleged injuries and damages, or the nufacturer of the substance,
product, or equipment which allegedly caused injury to Plaintiff. Furthermore, the Petition does
not eplain how, when, orwhy Plaintiff was “exposed” to anysuch product. As such, the
tition does not allege anylink betwee Defendant and any exposure or product that allegedly
caused Plaintiff’s injuries. Accordingly, because the Petition fails to state a claim upon which
relief can be granted, the claims against Defendant should be dismissed.
cond Affirmative Defense
It uld deprive Defendant of its constitutional rights to substantive and procedural due
process of law and equal protection under the aws guaranteed by theFourteenth Amendment to
the Constitution of the United States if relief were granted against Defendant in the present
action in which the Plaintiffs have not alleged anyproduct of Defendant that is alleged to have
caused or contribu ed to Plaintiff’s alleged injuries and damages, or the manufacturer of the
substance, product, or equipment which allegedl caused injury to Plaintiff. Such relief, i
granted, would constitute ataking of private property for public use, without just compensation,
in contravention of Defendant’s rights as preserved for it by the Fourteenth Amendment of
the Constitution of the United States.
Third Affirmative Defense
The claims against Defendant are barred, in whole or in part, by the applicable statute
itations of the State of Texas as well as other states as may be applicable.
urth Affirmative Defense
The claims a inst Defendant are barred, in whole or in part, by the applicable statute of
repose of the State of Texas as well as other states as may be applicable.
Fifth Affirmative Defense
The claims against Defendant have not been maintained in a timely fashion, d Plaintiff
have neglected the same and should be barred, in whole or in part, bythe doctrines of waiver,
laches, and/or estoppel.
Sixth Affirmative Defense
Defendant neither owed nor breached any legal duty to Plaintiffs. Specifically, Plaintiffs
ot prove th eir prima facie case because Defendant breached no duty whatsoever to Plaintiffs
whether arising bystatute, by common l w, or otherwise, including, but not limited to, any duty
to warn of any dangers; and no act or omission by Defendant proxim tely caused or proximately
contributed to Plaintiff’s allegedinjurie s or damages.
Seventh Affirmative Defense
Defendant denies th t Plaintiff had any exposure to any asbestos containing product
allegedly designed, processed, marketed, manufactured, supp ied, developed, tested, fashioned,
packaged, distributed, delivered, sold, and/or otherwise placed in thestream of commerce by
Defendant, and more particularly, denies, upon information and belief, that Defendant processed,
manufactured, supplied, develoed, tested, fashioned, packaged, distributed, delivered, sold
and/or otherwise placed in the stream of commerce any asbestos contaiing product at the times
and upon the dates alleged in the Petition.
Eighth Affirmative Defen
Defendant denies specifical y that, during the periods of exposure alleged in the Petitio
by the Plaintiffs, it processed, manufactured, marketed, designed, supplied, developed, tested,
fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of
comme ce a substantial and/or any percentage of the asbestos containing products to which
Plaintiff was caused to come into contact and wich Plaintiff was caused to breathe, inhale and
digest and which thereby caused Plaintiff’s injuries and resulting damages alleged in the Petition.
Ninth AffirmativeDefense
Defendant conformed to the scientific knowledge and data available to the indu try a
fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a
reasonable fashin, without recklessness, malice or wantonn ss, and Plaintiff may not recover
herein any exemplary or punitive damages against Defedant.
Tenth AffirmativeDefense
Any alleged product of Defendant was designed, manufactured, and marketed in
accordance wit the state of scientific and technological knowledge and wasnot defective or
unreasonably dangerous to Plaintiff in the normal, epected and intended use of the product,
insofar as knowledge of the dangers of what Plaintiffs complain was not known and cold not
reasonably have been discovered at he time such products were manufactured, sold, or
otherwise placed into the stream of cmmerc
Eleventh Affirmative Defense
At all times material hereto, the state of the medical, industrial, and scientific arts,
knowledge and technology was that there as no generally accepted or recognized knowledge of
any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of talc
products when used in the manner and for the purposes intended, so that there was no duty by
fendant to now of suchcharacter or na ture or to warn Plaintiff or others similarly situated,
and that, the extent such duty arose, adequate warnings either were given or were not
necessaryunder all circumstances.
Twelf h Affirmative Defense
At all times during the conduct of their corporate operations, the agents, servants and/or
employees of Defendant complied with all applicable law, governmental and industry rules,
regulations, standards, and specifications, as well as theavailable knowledge and technology o
the medical, scientific, and industrial communities.
Thirteenth Affirmative Defense
Defendant has fully complied with all applicable governmental laws and regulations with
regard to labeling and publishing cau ionary instructions with respect to its products with the
sult that Defendant has breached noduty, if any duty ever existed, to warn and thus there can
be no recovery against Defendant.
Fourteenth Affirmative Defense
Defendant denies that any talcum pwder produ ct it manufactured and/or sold w
defectively designed because the manufacturing specifications for Defendant’s talcum powder
products did not include asbestos.
Fifteenth Affirmative Defense
Plaintiffs’ claims that Defendant products were capale of rele asing asbestos fibers into
the air is inconsistent with the science and must be considered speculative as matter of la w.
Sixteenth Affirmative Defense
At all relevant times, Defendant was in compliance with the “state of the art” and could
not and did not foresee the risks, the injuries or damages alleged by Plaintiffs inthis action.
Seventeenth Affirmative Defense
To he extent that discovery may show or demonstrate any alleged product of Defendant
legedly sold or supplied to Plaintiff’s employer(s), suchproduct was manufactured, sold and/or
supplied in accordance with employer specifications.
Eighteenth Affirmatie Def ense
Defendant denies that it designed, manufactured, sold, or otherwise placed into the
stream of commerce any talc prcts or materials which could have caused Plaintiff to be
xposed to asbestos. Nonetheless, insofar as the Petition may be constred to allege claims
against Defendant, any exposure of Plaintiff to talc products or materials for which Defendant is
alleged to be liable was so minimal as to be insu ficient to establish a reasonable degree of
certainty or probability that the injuries nd damages complained of resulted from any exposure
to, or defects from, said talc products or materials.
Nineteenth Affirma e Defense
In the event it should be prov n at the time of trial that all the defendants aresubject to
market share liability, t en Defendant’s share of suchliability would be of such a de minimus
amount as to make its contribution for damages negligib and Defendant would be entitled to
contribution, either in whole or in part, from the co-defendants not represented by this answer.
wentieth Affirmative Defense
If it is judicially determined that any alleged product of Defendant was present in
Plaint ’s workp lace, which is denied, then it is averred that Plaintiff was not in the vicinity of
such product, nor exposed to such product with sufficient regularity, to be a cause of Plaintiff’s
alleged injuries and damages.
wenty First Affirmative Defense
The claims against Defendant are barred b cause any alleged exposure to any alleged
product of Defendant was without sufficient f equency, regularity, and/or proximity.
Twenty Second Affirmative Defense
To the extent Plaintiffs assert any claims again t Defendant as a seller of a product,
Defedant had no knowledge of any de fect inany product and could not have discovered any
eged defect in such product while exercising ordinary care.
Twenty Third AffirmativeDefense
The claims against Defendant ae barred, in whole or in part, because the injuries and
damages allegedly sustained by Plaintiff were not proximately caused by analle ged product or
conduct of Defendant, nor did anyproduct or conduct of Defendant contribute to such alleged
injuries andamages.
Twenty Fourth Affirmative Defense
The claims against Defendant are barred, in whole or in part, because, if it is judic ally
determined that the injuries and damages alleged in the Petition were caused by any alleged
product or conduct of Defen ant, which is denied, thosealleged injuri s and damages wer
caused by Plaintiff’s idiosyncratic reactions to such product.
Twent Fifth Affirmative Defense
The claims against Defendant are barred because, if Plaintiff sustained any alleged
injuries and damages, which is denied, those alleged in uries and damages resulted from
unrelated medical or genetic causes, not from any product or conduct of Defendant.
Twenty Sixth Affirmative Defense
The Court lacks jurisdiction over the subject matter of the cla ms asserted against
Defendant in this acti
Twenty SeventhAffirmative D efense
The claims against Defendant are barred by lack of personal jurisdiction.
Twenty Eighth Affirmative Defense
Plaintiffs’ claims should be dismissed on grounds of improper ven d/or
forum non conveniens.
Twenty Ninth firmative Defense
The claims against Defendant are barred, in whole or in part, to the tent the federal
government has preempted the field of law applicable to products alleged to have caused
Plaintiff’s in uries and damages. The granting of the rel ef demanded in e Petition would
impede, impair, frustrate, and burden the effectivene s of federal law regulating such field of law
in violation of the Supremacy Clause of theU.S . Constitution. Specifically, each and every claim
against Defendant is pr empted, in whole or in part, by the Federal Food, Drug & Cosmetics Act
(“FFDA”), 21 U.SC. §§ 399(a)(2009); in that the Food and Drug Administration (“FDA”)
has primary and exclusive jurisdiction over the saf ty of cosmetic talc containing products an
imary and exclusive jurisdiction to determine whether any warning must accompany cos etic
talc containing products. The FDA has ruled, on multiple occasions, the cosmetic grade talc is a
safe substance when us d as intended and further ruled that manuf cturers need not provide any
rnings on, or inconnection with the sale of , cosmetic g ade talc containing products.
Accordingly, each and every count of the Petition, to the extent that itpertains to Defendant
nufacture and/or sale of cosmetic grade lc containing products, is subject to the FDA’s
primary jurisdiction. Consequently, each and every count, to the extent that it pertains to
Defendant, should be dismissed or stayed pending FDA review of whether cosmetic talc is
generally recognized as afe and whether any warning must accompany, or other restrictions be
placed on the manufacture and sale of cosmetic talc containing products.
Thirtieth Affirmative Defense
Each and every count of the Petition, o the extent that it pertains to Defendant
nufacture and/or sale of cosmetic grade talc containing products is unauthorized and
improper attempt to enforce privately a claim under FFDCA, 21 U.S.C. §§ 301-309(a)(2009).
Thirty First Affirmative Defense
fendant neither gave, made, nor otherwise extended any warranties, whether express or
implied, upon which Plaintiff had a rigt to rely. Anyclaim against Defendant for alleged breach
of warranty is barred because of the failure to set forth the langage of any express warranty that
allegedly was extended and breached, nor a copy of any such alleged express warranty
attachedto the Petition.
Thirty Second Affirmative Defense
Any oral warranties upon which Plaintiff allegedly relied are inadmissib e and
unavailable because of the provisions of the applicable Statute of Frauds.
Thirty Third Affirmative Defense
As to all the c uses of action pleaded in the Petition which may be based upon express or
implied warranties and/or representations, such cases o f action are legally insufficient,
agai nst Defendant, by reason of Plaintiff’s failure to allege privity of contract betwe n the
Plaintiffs and Defendant, which specifically denied.
Thirty Fourth Affirmative Defen
In the event that any breac of express or implied warranty is proven, anysuch claim
ainst Defendant is barred, in whole or in part, to the extent Defendant was provided with
neither proper nor prompt notice of any such breach nor an opportunity to cure any alleged
defect and/or reach of w arranty.
Thirty Fifth Affirmative Defense
Plaintiff did not directly or indirectly purchase any asbestos ntaining proucts from
Defendant, and Plaintiff neither received nor relied upon anywarranty or representation that may
be alleged to have been made by Defendant.
Thirty Sixth Aff rmative Defense
To the extent to which the causes of action pleaded by Plaintiffs fail to accord with
the Uniform Commercial Code, including, but not limited to § 725 thereof, the Petition is
barred.
Thirty-Seventh Affirmative Defense
The warrant based claims against Defendant are barred or limited by applicable
conditions, disclaimers, and/or lack of privity.
Thirty Eighth Affirmative Defense
The claims against Defendant are barred or limited by the tatement (Second) and
Restatement (Third) f To rts, and all rights, presumptions, and defenses available to Defendant
pursuant thereto.
Thirty Ninth Affirmative Defense
The claims against Defendant are barred from by the doctrines of comparative
negligence, contributory negligence, comparative responsibility and/or comparative
usation.
Fortieth Affirmative Defense
Defendant denies that it designed, manufactured, sold, or otherwise placed into the
stream of commerce any tal products or materials which culd have caused Plaintiff to be
exposed to asbestos. Nonetheless, insofar as the Petition may be construed to allege product
liabi ity claims against Defendant on a theory of strict liability, the Plaintiffs have noclaim ba
upon allegations of strict iability arising from any alleged exposure to asbestos dust from any
product containing asbestos prior to June 6, 1967, because no cause of action existed in Texas
based upon strict liability in tort for exposure to a produc since the Supreme Court of T xas i
McKisson vs. Sales Affiliates, Inc. 416 S.W.2d 787, held that prior to 1967, it had refused to
extend “strict liability” to any manufacturer other than the manufacturers and packagers of food
products for human consu tion, and the rule of 402A was adopted for the first time in June,
The Supreme Court of Texas would not apply the rule of strict liability retroactively t
cover exposures prior to June, 1967; therefore, the Defendant pleads that no recovery can be had
upon the theory of strict iability for exposures, if any, prior to Jne 6, 1967. Further, the
application of strict liability on a retroactive basis would be violative of Article I,§ 16, of the
Texas Constitution.
Forty First Affirmative Defense
Defendant alleges that Plaintiffs’ damages, if any, were caused by negligent cts or
omissions or breach of warranty of third parties or other Defendants and/or expo ure to certain
products manufactured or distributed by said third parties or Defendants, and, under the Supreme
Court of Tex s opinion in Duncan v. Cessna Aircraft Comany II , the Defendant is entitled to a
comparative apportionment of fault, if any, as t the other Defendants and Cross Defendants
and/or third parties and is entitled to a judgment against them herein for contribution and/or
indemnity or a percentage redction in accordance with the app ortionment of fault.
Forty Second Affirmative Defense
Defendant alleges, in the alternative, that the Plaintiffs’ claims of injury and damage, if
any were the result of an unavoid ble accident or occurrence. Defendant allees that any alleg ed
defects in its product, if any, were beyond the scientific and medi al knowledge available at the
time of manufacturing, and the state-of-the-art prevented the D endant from knowing any
defect.
For ird Affirmative Defense
Plaintif s’ claims for exemplary or punitive damages against Defendant Noxell
Corporation violate De ndant’s rights under Article 1, §§1, 10, and 19, as well as theFifth,
Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution, theConstitution of the State
of Texas, and any other state’s law that might apply, in that such damages deprive De ndant
of procedural and substantive Due Process; subject Defendant to Double J opardy; deprive
Defendant of Equal Prote tion; give the jury unfettered discretion to award punitive damages on
vague grounds with no objective standards, without the presumpt n of innocence, and
improperly allows for joint and several liability resultin in different penalties for the same or
imilar act
orty Fourth Affirmative Defen
To the extent Plaintiffs’ Petition asserts a demand for punitive damages, Defendant
spe fically incorporates by reference any and all standards of limitations regardig the
determination and/or enforceabilit of punitive damage awards that arose in the decisions of
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1966); Cooper Industries, c. v.
Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and State Farm Mutual Automobile
Insurance Co. v. Campbell, 538 U.S. 408 (2003
Forty Fifth Affirmative Defense
Any award for punitive damages in this action based on anything other than Defendant
conduct in connection with the distribution of the product that is subject of this lawsuit would
violate the due proce s clause of the Fourteenth Amendment to theUnited States Constitution
and Texas Constitution, and would be improper under thecom mon w and public policies of the
State of Texas because any other judgment for pun tive damages in this case cannot protect
Defendant against impermissible multiple punishment for the same wrong.
Forty Sixth Affirmative Defense
Defendant is not a proper party defendant in this action.
Forty Seventh AffirmativeDefense
The Petition on i s face shows a misjoinder of parties. Aditionally, Plaintiffs have failed
join proper, necessary, and indispensable parties to this action, some of whom cannot be made
pares, including but not limited to: Amatex Corp., Aanco Holdings Inc., AC and S, Inc.,
American Shipbuilding, A.P.Green S rvices, Armstrong World Industries, The Artra Group
including The Synkoloid Company, Asbestec Industries Inc., Asbestospray Corp., Asb tos
Claims Management, Atlas Corp., Babcock & Wilcox, Baldwin Ehret Hill, Bead
Manufacturing Company Inc., Bethlehem teel, Brunswick Fabrications, Inc., Burns & Roe
Enterprises, Cassiar Mines, Combustion Engineering, Delaware Insulations, Eagle cher
ndustries, Eastco Industrial Safety Corp., E. J. Bartells, Federal Mogul, Fort Eight Insulations,
Fuller Austin Insula ion, G oldings (GAF), Gatke Corp., Hamilton Materials Inc., Harbison
Walker, Hillsborough Holdings, H.K. Porter Co., Johns Manv KaiserAluminum &
Chemical, Keene Corp., Kentile Floors, Lykes Brothers Steamsip, M.H. Detrick, National
Gypsum Co., Nicolet/Keasby-Mattison, North American Refractories Company, North American
Asbestos Corp., Owens Corning, Pacor, Plibrico Co., Pittsbu h Corning, Porter Hayden,
Prudential Lines, Raybestos Manhattan, Raymark Indus ries, Raytech Industries Corp., Rock
Wool Manufacturing, Rutland Fire & Clay Co., Skinner Engine Company, SGL Carbon, Shook
& Fletcher, Standard Asbestos Manufacturing and Ins ation, Standard Insulations, Todd
Shipyards, Unarco Industries Inc., United St tes Gypsum Corp., United States Mineral Co.,
United States Lines, UNR Industries Corp., U.S. Steel, Walter Industries, Washington Group
International, and W.R. Grace & Co., Fl tkote, Garlock Sealing Technologies, Bondex
International, Inc., as well as the various manufacturers and sellers of the cigarettes and other
tobacco products consumed or used by or around Plaintiff.
Forty Eighth Affirmative Defense
That if Plaintiff su ained any injuries or illness as set forth in the Petition, the same were
due to her own willful, wanton, reckless, car less, and negligent acts and conduct which
combined and concurred with any willful, wanton, reckless or negligent acts and conduct on
e part of this Defendant (which is specifically denied) to bring about the sai illness or injuries,
if any, as the proximate cause thereof and without which the same would not have occurred.
Forty Ninth Affirmative Defense
Plaintiff contributed to her lness by the use, either in whole or in part, of other
substances, products, medications and/or drugs.
Fiftieth Affirma ive Defense
The claims against Defendant are barred, in whole or in part, by Plaintiff’s failure to take
reasonable action to mitigate the injuries and/or damages alleged in the Petition.
Fifty rst Affirmative D fense
The claims against Defendant are arred, in whole or in part, by the doctrine of
assumption of the risk if it should be determined that Plaintiff knowingly and voluntar
assumed the risks associated with the use of the products at issue.
Fifty-Second Affirmative Defense
The claims aga nst Defendant are barred, in whole or in part, because, if it is judicially
determined that the injuries and damages allegedly sustain by Plaintiff resulted from any
alleged product of Defendant, which denied, the alleged injuries and damages were cased, in
ole or in part, by the abuse, misuse, and/or alteration of said product, and/or the failure to use
said product in accordance with provided warnings or instructions.
Fifty Third Affirmative Defense
The cl ims against Defendant are barred, in who e or in part, because, if it is judicially
determined that the injuries and damages allegedly sustained by Plaintiff resulted from any
lleged product of Defendant, which denied, such product was not defective or unreasonably
dangerous at the time of s le, and/or was made defective or unreasonably dangerous b
subsequent unforeseeable alterations, changes, improper maintenance, or e by others, and
suchsubsequent unforeseeable alterations, changes, improper aintenance, or misuse acts as a
bar to Plaintiffs’ claims.
Fifty Fourth Affirmative Defense
To the extent shown by the evidence, Defendant raises the affirmative defenses o
modification, alteration, and abuse of the product.
Fifty Fifth Affirmative De ense
The Defendant alleges that it is etitled to indem nity and/or contribution from each of the
other Defendants and/or a credit or pro rata reduction for any amounts paid b settling
Defendants pursuant to Chapter 32 and Chapter 33 of the Texas Civil P actice and Remedies
Code, and/or the doctrine of comparative fault.
Fifty xth Affirmative Defen
If it is judicially determined that Plaintiff’s alleged injuries and dama s were caused by
any alleged exposure to asbestos, such injuries and damages r sulted from superseding
intervening and/r interced ing acts or omissions on the part of third parties over whom
Defendant hadneithe r control nor right of control. As a sult, any alleged act or omission on the
part of Defendant was not the proximate and or competent producing cause of such all ged
injuries and damages. Defendant designates as responsible such third parties, including, but not
limited to, any and all of Plaint f’s employers at which Plaintiff wasexposed to any asbestos,
and any and all ther product manufacturers and suppliers of any products containing any
asbestos to which Plaintiff was exposed.
Fifty Seventh Affirmative Defense
Defendant denies any and al liability to the extent that Plaintiffs assert this Defendant’s
alleged liabil ty as a successor, successor in business successor in product line, assignee
predecessor, predecessor in business, predecessor in product line, parent, alter ego, subsidiary or
other derivative status as a theory of liability.
Fifty Eighth Affirmative efense
The claims against Defendant are barred by insufficiency of process and/or insufficiency
f service of process.
Fifty NinthAffir mative Defense
the extent that Plaintiffs have released, settled, entered into an accord or satisfaction,
or other ise compromised the claims against Defenant in thi s action, such claims are barred or
reduced by payment, accord, satisfaction, arbitration and award, release, and res judica
Sixtieth Affirmative Defense
Defendant is entitled to a set off from any a d all recovery against it tothe extent
laintiffs has received any benefits paid or payable to or on behalf of Plaintiffs from any
collateral sources.
Sixty-First Affirmative efense
If it is proven at the time of trial that Defendant is liable for damaes, if any, to Plaintiffs,
and said liab lity is not sole but rather joint and several, Defendant is entitled to assignment of
Plaintiffs’ bankruptcy trust claims to the exten such claims have not been asserted by Plaintiffs.
To the extent such bankruptc trust claims have been asserted, Defend nt is entitled t set off
for the amount of any such claim Defendant asserts its right to any s -off allowed under law.
Sixty-SeconAffirmative Defense
All defenses which have been or will be asserted by other defendants in this action are
adopted and incorporated by reference as if fully set forth at length herein as defenses to
the Petition to the extent same are applicable and co istent with positions taken by Defendant in
this answer and are not adverse to Defendant.
Sixty Third Affirmative Defense
Defendant will rely upon any and all other further defenses which become available or
ppear during discovery proceedings in this a ion and hereby specifically reserves the right to
amend its answer for the purposes of asserting any such additional af irmative defenses as well
as the right to add counterclaims, cross claims, or to institute third party actions which discovery
hereaftermay reveal to be appropriate.
ANSWER TO ALL CROSS CLAIMS
Defendant denies he allegations contained in any and all ross claims that have been or
may be asserted against it with respect to this matter, and prays that such Cross Claims be
dismissed wi prejudice, that this Defendant recover its costs; fora jury trial on all suc Cross
Claims and defenses; and for suchother and furtherrelief as may be just and proper.
WHEREFORE, Defendant, Noxell Corporation, having responded to the Original and
First Amended Petitions, requests that the Petitions be dismissed, judgment be entered in its
favor against Plaitiffs, witcosts assessed against Pla inti fs.
PRAYER FOR A JURY TRIAL
Defendant, Noxell Corporation, hereby prays for a jury trial on all issues raised or
potentially raised by the pleadings as such or as may be amended.
Respectfully submitted, this the 9 day of September 2022.
COSMICH SIMMONS & BROWN, PLLC
/s/ Fo rrest Ren Wilkes
FORREST REN WILKES (TX
650 Poydras Street, Suite 2215
New Orleans, Louisiana 70130
Telephone: (504) 262-0040
Facsimile: (504) 262-0041
Email: ren@cs law.com
asbestos@cs law.co
COSMICH IMMONS & BROWN, PLLC
Clint Hagaman
100 East River Center Blvd. Suite 480
Covington, KY 41011
Telephon
Preview
CAUSE NO. 2022-42911-7 NANCY RYALL Individually and as IN THE DISTRICT COURT Next Friend of , A Minor Child, Plaintiffs, HARRIS COUNTY, TEXAS 11TH JUDICIAL DISTRICT H-E-B, P., ET AL., Defendants. ASB MDL JUDICIAL DISTRICT Transferred From CAUSE NO. -12540 NANCY RYALL Individually and as N THE DISTRICT COURT Next Friend of , A Minor Child, Plaintiffs, JUDICIAL DISTRICT H-E-B, P., ET AL., BEXARCOUNTY, TEXAS Def endants. DEFENDANT, NOXELL CORPORATION’S, ANSWER TO PLAINTIFFS’ ORIGINAL AND FIRST AMENDED PETITION AND JURY DEMAND NOW INTO COURT, through undersigned counsel, comes Noxell Corporation (hereinafter referred "Defendant" , who respectfully responds to Plaintiffs’ Original and First Amended Petitions (hereinafter referred to as “the Petition”) d any and all Cross-Claims, if any, filed this matter as follows: GENERAL DENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Noxell Corporation generally denies each and every allegation contained in Plaintiffs’ Original and Firs Amended Petitions and demands strictproof thereof at the trial of this matter. SPECIAL EXCEPTION Noxell Corporation specially excepts to Plaintiffs’ Original and First Amended Petitions in their entirety and states that said Petitions should be dismissed because Plaintiffs fail to allege facts, directly or by inference or application, as to this Defendant. Furthermore, the allegation and prayer of Plaintiffs’ Original and First Amended Petitions are so broad, general, indefinite, vague, and conclusory that Noxell Corporation cannot reasonably answer or prepare a defense to Plaintiffs’ allegations and prayer. Specifically, Plaintiffs’ Original and First Amended Petitions fail to allege the product, equipment or materials allegedly manufactured by Noxell Corporation r an alleged Noxell Corporation predecessor or subsidiary (for which Noxell Corporation does not admit liability), that they contend was a cause of or contributed to their alleged injuries. Moreover, Plaintiffs have not provided any meaningful information as to Plaintiff’s alleged exposure, such as the manner or location of Plaintiff’s alleged exposure to the alleged Noxell Corporation products allegedly at issue or a narrowed time period applicable to Noxell Corporation’ alleged involvement in this case. n addition, Noxell Corporation ecially excepts to the allegations of gross ne igence to the extent they are alleged in Plaintif s’ Original and First Amended Petitions because they fa to identify and set forth the elements of a cause of action specifically against this defendant. Additionally, or in the alternative, the allegatis of gross negligence, to the extent a lleged, a vague, general, broad and indefinite; therefore, Noxell Corporation is not given fair notice and opportunity to prepareits defense to Plaintiffs’ allegations. Noxell Corporation also specially excepts t Plaintiffs’ claim for punitive or exemplary damages on the grounds that Plaintiffs fail to set forth facts to support a claim for such an award against this Defendant. Specifically, Plaintiffs’ Original and First Amended Petitions do not allege any facts to support a claim that Noxell Corporation acted with fraud, malice or gross negligence towards Plainti as required under Texas law. Noxell Corporation, therefore, is not ven fair notice and opportunity to prepare its defense to Plaintiffs’ claim for punitive or exemplary damages. AFFIRMATIVE DEFENSE First Affirmative Defense The Petition fails to state a claim upon which relief against Defendantmay be g ranted, and therefore, should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civi Procedure. Specifically, the Petitio fails to allege facts sufficient to show that this Defendant had any duty to Plaintiffs, fails to allege facts sufficient to show that this Defendant breached any duty, and fails to allege facts sufficient to show that the juries alleged by the Plaintis were caused by exposure to any products or materials for ich this Defendant may be held liable. The Petition fails to identify ny product of Defendant thatis alleged to have caused or contributed to Plaintiff’s alleged injuries and damages, or the nufacturer of the substance, product, or equipment which allegedly caused injury to Plaintiff. Furthermore, the Petition does not eplain how, when, orwhy Plaintiff was “exposed” to anysuch product. As such, the tition does not allege anylink betwee Defendant and any exposure or product that allegedly caused Plaintiff’s injuries. Accordingly, because the Petition fails to state a claim upon which relief can be granted, the claims against Defendant should be dismissed. cond Affirmative Defense It uld deprive Defendant of its constitutional rights to substantive and procedural due process of law and equal protection under the aws guaranteed by theFourteenth Amendment to the Constitution of the United States if relief were granted against Defendant in the present action in which the Plaintiffs have not alleged anyproduct of Defendant that is alleged to have caused or contribu ed to Plaintiff’s alleged injuries and damages, or the manufacturer of the substance, product, or equipment which allegedl caused injury to Plaintiff. Such relief, i granted, would constitute ataking of private property for public use, without just compensation, in contravention of Defendant’s rights as preserved for it by the Fourteenth Amendment of the Constitution of the United States. Third Affirmative Defense The claims against Defendant are barred, in whole or in part, by the applicable statute itations of the State of Texas as well as other states as may be applicable. urth Affirmative Defense The claims a inst Defendant are barred, in whole or in part, by the applicable statute of repose of the State of Texas as well as other states as may be applicable. Fifth Affirmative Defense The claims against Defendant have not been maintained in a timely fashion, d Plaintiff have neglected the same and should be barred, in whole or in part, bythe doctrines of waiver, laches, and/or estoppel. Sixth Affirmative Defense Defendant neither owed nor breached any legal duty to Plaintiffs. Specifically, Plaintiffs ot prove th eir prima facie case because Defendant breached no duty whatsoever to Plaintiffs whether arising bystatute, by common l w, or otherwise, including, but not limited to, any duty to warn of any dangers; and no act or omission by Defendant proxim tely caused or proximately contributed to Plaintiff’s allegedinjurie s or damages. Seventh Affirmative Defense Defendant denies th t Plaintiff had any exposure to any asbestos containing product allegedly designed, processed, marketed, manufactured, supp ied, developed, tested, fashioned, packaged, distributed, delivered, sold, and/or otherwise placed in thestream of commerce by Defendant, and more particularly, denies, upon information and belief, that Defendant processed, manufactured, supplied, develoed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos contaiing product at the times and upon the dates alleged in the Petition. Eighth Affirmative Defen Defendant denies specifical y that, during the periods of exposure alleged in the Petitio by the Plaintiffs, it processed, manufactured, marketed, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of comme ce a substantial and/or any percentage of the asbestos containing products to which Plaintiff was caused to come into contact and wich Plaintiff was caused to breathe, inhale and digest and which thereby caused Plaintiff’s injuries and resulting damages alleged in the Petition. Ninth AffirmativeDefense Defendant conformed to the scientific knowledge and data available to the indu try a fulfilled its obligations, if any, and its activities and undertakings, if any, were conducted in a reasonable fashin, without recklessness, malice or wantonn ss, and Plaintiff may not recover herein any exemplary or punitive damages against Defedant. Tenth AffirmativeDefense Any alleged product of Defendant was designed, manufactured, and marketed in accordance wit the state of scientific and technological knowledge and wasnot defective or unreasonably dangerous to Plaintiff in the normal, epected and intended use of the product, insofar as knowledge of the dangers of what Plaintiffs complain was not known and cold not reasonably have been discovered at he time such products were manufactured, sold, or otherwise placed into the stream of cmmerc Eleventh Affirmative Defense At all times material hereto, the state of the medical, industrial, and scientific arts, knowledge and technology was that there as no generally accepted or recognized knowledge of any unavoidably unsafe, inherently dangerous, hazardous or defective character or nature of talc products when used in the manner and for the purposes intended, so that there was no duty by fendant to now of suchcharacter or na ture or to warn Plaintiff or others similarly situated, and that, the extent such duty arose, adequate warnings either were given or were not necessaryunder all circumstances. Twelf h Affirmative Defense At all times during the conduct of their corporate operations, the agents, servants and/or employees of Defendant complied with all applicable law, governmental and industry rules, regulations, standards, and specifications, as well as theavailable knowledge and technology o the medical, scientific, and industrial communities. Thirteenth Affirmative Defense Defendant has fully complied with all applicable governmental laws and regulations with regard to labeling and publishing cau ionary instructions with respect to its products with the sult that Defendant has breached noduty, if any duty ever existed, to warn and thus there can be no recovery against Defendant. Fourteenth Affirmative Defense Defendant denies that any talcum pwder produ ct it manufactured and/or sold w defectively designed because the manufacturing specifications for Defendant’s talcum powder products did not include asbestos. Fifteenth Affirmative Defense Plaintiffs’ claims that Defendant products were capale of rele asing asbestos fibers into the air is inconsistent with the science and must be considered speculative as matter of la w. Sixteenth Affirmative Defense At all relevant times, Defendant was in compliance with the “state of the art” and could not and did not foresee the risks, the injuries or damages alleged by Plaintiffs inthis action. Seventeenth Affirmative Defense To he extent that discovery may show or demonstrate any alleged product of Defendant legedly sold or supplied to Plaintiff’s employer(s), suchproduct was manufactured, sold and/or supplied in accordance with employer specifications. Eighteenth Affirmatie Def ense Defendant denies that it designed, manufactured, sold, or otherwise placed into the stream of commerce any talc prcts or materials which could have caused Plaintiff to be xposed to asbestos. Nonetheless, insofar as the Petition may be constred to allege claims against Defendant, any exposure of Plaintiff to talc products or materials for which Defendant is alleged to be liable was so minimal as to be insu ficient to establish a reasonable degree of certainty or probability that the injuries nd damages complained of resulted from any exposure to, or defects from, said talc products or materials. Nineteenth Affirma e Defense In the event it should be prov n at the time of trial that all the defendants aresubject to market share liability, t en Defendant’s share of suchliability would be of such a de minimus amount as to make its contribution for damages negligib and Defendant would be entitled to contribution, either in whole or in part, from the co-defendants not represented by this answer. wentieth Affirmative Defense If it is judicially determined that any alleged product of Defendant was present in Plaint ’s workp lace, which is denied, then it is averred that Plaintiff was not in the vicinity of such product, nor exposed to such product with sufficient regularity, to be a cause of Plaintiff’s alleged injuries and damages. wenty First Affirmative Defense The claims against Defendant are barred b cause any alleged exposure to any alleged product of Defendant was without sufficient f equency, regularity, and/or proximity. Twenty Second Affirmative Defense To the extent Plaintiffs assert any claims again t Defendant as a seller of a product, Defedant had no knowledge of any de fect inany product and could not have discovered any eged defect in such product while exercising ordinary care. Twenty Third AffirmativeDefense The claims against Defendant ae barred, in whole or in part, because the injuries and damages allegedly sustained by Plaintiff were not proximately caused by analle ged product or conduct of Defendant, nor did anyproduct or conduct of Defendant contribute to such alleged injuries andamages. Twenty Fourth Affirmative Defense The claims against Defendant are barred, in whole or in part, because, if it is judic ally determined that the injuries and damages alleged in the Petition were caused by any alleged product or conduct of Defen ant, which is denied, thosealleged injuri s and damages wer caused by Plaintiff’s idiosyncratic reactions to such product. Twent Fifth Affirmative Defense The claims against Defendant are barred because, if Plaintiff sustained any alleged injuries and damages, which is denied, those alleged in uries and damages resulted from unrelated medical or genetic causes, not from any product or conduct of Defendant. Twenty Sixth Affirmative Defense The Court lacks jurisdiction over the subject matter of the cla ms asserted against Defendant in this acti Twenty SeventhAffirmative D efense The claims against Defendant are barred by lack of personal jurisdiction. Twenty Eighth Affirmative Defense Plaintiffs’ claims should be dismissed on grounds of improper ven d/or forum non conveniens. Twenty Ninth firmative Defense The claims against Defendant are barred, in whole or in part, to the tent the federal government has preempted the field of law applicable to products alleged to have caused Plaintiff’s in uries and damages. The granting of the rel ef demanded in e Petition would impede, impair, frustrate, and burden the effectivene s of federal law regulating such field of law in violation of the Supremacy Clause of theU.S . Constitution. Specifically, each and every claim against Defendant is pr empted, in whole or in part, by the Federal Food, Drug & Cosmetics Act (“FFDA”), 21 U.SC. §§ 399(a)(2009); in that the Food and Drug Administration (“FDA”) has primary and exclusive jurisdiction over the saf ty of cosmetic talc containing products an imary and exclusive jurisdiction to determine whether any warning must accompany cos etic talc containing products. The FDA has ruled, on multiple occasions, the cosmetic grade talc is a safe substance when us d as intended and further ruled that manuf cturers need not provide any rnings on, or inconnection with the sale of , cosmetic g ade talc containing products. Accordingly, each and every count of the Petition, to the extent that itpertains to Defendant nufacture and/or sale of cosmetic grade lc containing products, is subject to the FDA’s primary jurisdiction. Consequently, each and every count, to the extent that it pertains to Defendant, should be dismissed or stayed pending FDA review of whether cosmetic talc is generally recognized as afe and whether any warning must accompany, or other restrictions be placed on the manufacture and sale of cosmetic talc containing products. Thirtieth Affirmative Defense Each and every count of the Petition, o the extent that it pertains to Defendant nufacture and/or sale of cosmetic grade talc containing products is unauthorized and improper attempt to enforce privately a claim under FFDCA, 21 U.S.C. §§ 301-309(a)(2009). Thirty First Affirmative Defense fendant neither gave, made, nor otherwise extended any warranties, whether express or implied, upon which Plaintiff had a rigt to rely. Anyclaim against Defendant for alleged breach of warranty is barred because of the failure to set forth the langage of any express warranty that allegedly was extended and breached, nor a copy of any such alleged express warranty attachedto the Petition. Thirty Second Affirmative Defense Any oral warranties upon which Plaintiff allegedly relied are inadmissib e and unavailable because of the provisions of the applicable Statute of Frauds. Thirty Third Affirmative Defense As to all the c uses of action pleaded in the Petition which may be based upon express or implied warranties and/or representations, such cases o f action are legally insufficient, agai nst Defendant, by reason of Plaintiff’s failure to allege privity of contract betwe n the Plaintiffs and Defendant, which specifically denied. Thirty Fourth Affirmative Defen In the event that any breac of express or implied warranty is proven, anysuch claim ainst Defendant is barred, in whole or in part, to the extent Defendant was provided with neither proper nor prompt notice of any such breach nor an opportunity to cure any alleged defect and/or reach of w arranty. Thirty Fifth Affirmative Defense Plaintiff did not directly or indirectly purchase any asbestos ntaining proucts from Defendant, and Plaintiff neither received nor relied upon anywarranty or representation that may be alleged to have been made by Defendant. Thirty Sixth Aff rmative Defense To the extent to which the causes of action pleaded by Plaintiffs fail to accord with the Uniform Commercial Code, including, but not limited to § 725 thereof, the Petition is barred. Thirty-Seventh Affirmative Defense The warrant based claims against Defendant are barred or limited by applicable conditions, disclaimers, and/or lack of privity. Thirty Eighth Affirmative Defense The claims against Defendant are barred or limited by the tatement (Second) and Restatement (Third) f To rts, and all rights, presumptions, and defenses available to Defendant pursuant thereto. Thirty Ninth Affirmative Defense The claims against Defendant are barred from by the doctrines of comparative negligence, contributory negligence, comparative responsibility and/or comparative usation. Fortieth Affirmative Defense Defendant denies that it designed, manufactured, sold, or otherwise placed into the stream of commerce any tal products or materials which culd have caused Plaintiff to be exposed to asbestos. Nonetheless, insofar as the Petition may be construed to allege product liabi ity claims against Defendant on a theory of strict liability, the Plaintiffs have noclaim ba upon allegations of strict iability arising from any alleged exposure to asbestos dust from any product containing asbestos prior to June 6, 1967, because no cause of action existed in Texas based upon strict liability in tort for exposure to a produc since the Supreme Court of T xas i McKisson vs. Sales Affiliates, Inc. 416 S.W.2d 787, held that prior to 1967, it had refused to extend “strict liability” to any manufacturer other than the manufacturers and packagers of food products for human consu tion, and the rule of 402A was adopted for the first time in June, The Supreme Court of Texas would not apply the rule of strict liability retroactively t cover exposures prior to June, 1967; therefore, the Defendant pleads that no recovery can be had upon the theory of strict iability for exposures, if any, prior to Jne 6, 1967. Further, the application of strict liability on a retroactive basis would be violative of Article I,§ 16, of the Texas Constitution. Forty First Affirmative Defense Defendant alleges that Plaintiffs’ damages, if any, were caused by negligent cts or omissions or breach of warranty of third parties or other Defendants and/or expo ure to certain products manufactured or distributed by said third parties or Defendants, and, under the Supreme Court of Tex s opinion in Duncan v. Cessna Aircraft Comany II , the Defendant is entitled to a comparative apportionment of fault, if any, as t the other Defendants and Cross Defendants and/or third parties and is entitled to a judgment against them herein for contribution and/or indemnity or a percentage redction in accordance with the app ortionment of fault. Forty Second Affirmative Defense Defendant alleges, in the alternative, that the Plaintiffs’ claims of injury and damage, if any were the result of an unavoid ble accident or occurrence. Defendant allees that any alleg ed defects in its product, if any, were beyond the scientific and medi al knowledge available at the time of manufacturing, and the state-of-the-art prevented the D endant from knowing any defect. For ird Affirmative Defense Plaintif s’ claims for exemplary or punitive damages against Defendant Noxell Corporation violate De ndant’s rights under Article 1, §§1, 10, and 19, as well as theFifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution, theConstitution of the State of Texas, and any other state’s law that might apply, in that such damages deprive De ndant of procedural and substantive Due Process; subject Defendant to Double J opardy; deprive Defendant of Equal Prote tion; give the jury unfettered discretion to award punitive damages on vague grounds with no objective standards, without the presumpt n of innocence, and improperly allows for joint and several liability resultin in different penalties for the same or imilar act orty Fourth Affirmative Defen To the extent Plaintiffs’ Petition asserts a demand for punitive damages, Defendant spe fically incorporates by reference any and all standards of limitations regardig the determination and/or enforceabilit of punitive damage awards that arose in the decisions of BMW of North America, Inc. v. Gore, 517 U.S. 559 (1966); Cooper Industries, c. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003 Forty Fifth Affirmative Defense Any award for punitive damages in this action based on anything other than Defendant conduct in connection with the distribution of the product that is subject of this lawsuit would violate the due proce s clause of the Fourteenth Amendment to theUnited States Constitution and Texas Constitution, and would be improper under thecom mon w and public policies of the State of Texas because any other judgment for pun tive damages in this case cannot protect Defendant against impermissible multiple punishment for the same wrong. Forty Sixth Affirmative Defense Defendant is not a proper party defendant in this action. Forty Seventh AffirmativeDefense The Petition on i s face shows a misjoinder of parties. Aditionally, Plaintiffs have failed join proper, necessary, and indispensable parties to this action, some of whom cannot be made pares, including but not limited to: Amatex Corp., Aanco Holdings Inc., AC and S, Inc., American Shipbuilding, A.P.Green S rvices, Armstrong World Industries, The Artra Group including The Synkoloid Company, Asbestec Industries Inc., Asbestospray Corp., Asb tos Claims Management, Atlas Corp., Babcock & Wilcox, Baldwin Ehret Hill, Bead Manufacturing Company Inc., Bethlehem teel, Brunswick Fabrications, Inc., Burns & Roe Enterprises, Cassiar Mines, Combustion Engineering, Delaware Insulations, Eagle cher ndustries, Eastco Industrial Safety Corp., E. J. Bartells, Federal Mogul, Fort Eight Insulations, Fuller Austin Insula ion, G oldings (GAF), Gatke Corp., Hamilton Materials Inc., Harbison Walker, Hillsborough Holdings, H.K. Porter Co., Johns Manv KaiserAluminum & Chemical, Keene Corp., Kentile Floors, Lykes Brothers Steamsip, M.H. Detrick, National Gypsum Co., Nicolet/Keasby-Mattison, North American Refractories Company, North American Asbestos Corp., Owens Corning, Pacor, Plibrico Co., Pittsbu h Corning, Porter Hayden, Prudential Lines, Raybestos Manhattan, Raymark Indus ries, Raytech Industries Corp., Rock Wool Manufacturing, Rutland Fire & Clay Co., Skinner Engine Company, SGL Carbon, Shook & Fletcher, Standard Asbestos Manufacturing and Ins ation, Standard Insulations, Todd Shipyards, Unarco Industries Inc., United St tes Gypsum Corp., United States Mineral Co., United States Lines, UNR Industries Corp., U.S. Steel, Walter Industries, Washington Group International, and W.R. Grace & Co., Fl tkote, Garlock Sealing Technologies, Bondex International, Inc., as well as the various manufacturers and sellers of the cigarettes and other tobacco products consumed or used by or around Plaintiff. Forty Eighth Affirmative Defense That if Plaintiff su ained any injuries or illness as set forth in the Petition, the same were due to her own willful, wanton, reckless, car less, and negligent acts and conduct which combined and concurred with any willful, wanton, reckless or negligent acts and conduct on e part of this Defendant (which is specifically denied) to bring about the sai illness or injuries, if any, as the proximate cause thereof and without which the same would not have occurred. Forty Ninth Affirmative Defense Plaintiff contributed to her lness by the use, either in whole or in part, of other substances, products, medications and/or drugs. Fiftieth Affirma ive Defense The claims against Defendant are barred, in whole or in part, by Plaintiff’s failure to take reasonable action to mitigate the injuries and/or damages alleged in the Petition. Fifty rst Affirmative D fense The claims against Defendant are arred, in whole or in part, by the doctrine of assumption of the risk if it should be determined that Plaintiff knowingly and voluntar assumed the risks associated with the use of the products at issue. Fifty-Second Affirmative Defense The claims aga nst Defendant are barred, in whole or in part, because, if it is judicially determined that the injuries and damages allegedly sustain by Plaintiff resulted from any alleged product of Defendant, which denied, the alleged injuries and damages were cased, in ole or in part, by the abuse, misuse, and/or alteration of said product, and/or the failure to use said product in accordance with provided warnings or instructions. Fifty Third Affirmative Defense The cl ims against Defendant are barred, in who e or in part, because, if it is judicially determined that the injuries and damages allegedly sustained by Plaintiff resulted from any lleged product of Defendant, which denied, such product was not defective or unreasonably dangerous at the time of s le, and/or was made defective or unreasonably dangerous b subsequent unforeseeable alterations, changes, improper maintenance, or e by others, and suchsubsequent unforeseeable alterations, changes, improper aintenance, or misuse acts as a bar to Plaintiffs’ claims. Fifty Fourth Affirmative Defense To the extent shown by the evidence, Defendant raises the affirmative defenses o modification, alteration, and abuse of the product. Fifty Fifth Affirmative De ense The Defendant alleges that it is etitled to indem nity and/or contribution from each of the other Defendants and/or a credit or pro rata reduction for any amounts paid b settling Defendants pursuant to Chapter 32 and Chapter 33 of the Texas Civil P actice and Remedies Code, and/or the doctrine of comparative fault. Fifty xth Affirmative Defen If it is judicially determined that Plaintiff’s alleged injuries and dama s were caused by any alleged exposure to asbestos, such injuries and damages r sulted from superseding intervening and/r interced ing acts or omissions on the part of third parties over whom Defendant hadneithe r control nor right of control. As a sult, any alleged act or omission on the part of Defendant was not the proximate and or competent producing cause of such all ged injuries and damages. Defendant designates as responsible such third parties, including, but not limited to, any and all of Plaint f’s employers at which Plaintiff wasexposed to any asbestos, and any and all ther product manufacturers and suppliers of any products containing any asbestos to which Plaintiff was exposed. Fifty Seventh Affirmative Defense Defendant denies any and al liability to the extent that Plaintiffs assert this Defendant’s alleged liabil ty as a successor, successor in business successor in product line, assignee predecessor, predecessor in business, predecessor in product line, parent, alter ego, subsidiary or other derivative status as a theory of liability. Fifty Eighth Affirmative efense The claims against Defendant are barred by insufficiency of process and/or insufficiency f service of process. Fifty NinthAffir mative Defense the extent that Plaintiffs have released, settled, entered into an accord or satisfaction, or other ise compromised the claims against Defenant in thi s action, such claims are barred or reduced by payment, accord, satisfaction, arbitration and award, release, and res judica Sixtieth Affirmative Defense Defendant is entitled to a set off from any a d all recovery against it tothe extent laintiffs has received any benefits paid or payable to or on behalf of Plaintiffs from any collateral sources. Sixty-First Affirmative efense If it is proven at the time of trial that Defendant is liable for damaes, if any, to Plaintiffs, and said liab lity is not sole but rather joint and several, Defendant is entitled to assignment of Plaintiffs’ bankruptcy trust claims to the exten such claims have not been asserted by Plaintiffs. To the extent such bankruptc trust claims have been asserted, Defend nt is entitled t set off for the amount of any such claim Defendant asserts its right to any s -off allowed under law. Sixty-SeconAffirmative Defense All defenses which have been or will be asserted by other defendants in this action are adopted and incorporated by reference as if fully set forth at length herein as defenses to the Petition to the extent same are applicable and co istent with positions taken by Defendant in this answer and are not adverse to Defendant. Sixty Third Affirmative Defense Defendant will rely upon any and all other further defenses which become available or ppear during discovery proceedings in this a ion and hereby specifically reserves the right to amend its answer for the purposes of asserting any such additional af irmative defenses as well as the right to add counterclaims, cross claims, or to institute third party actions which discovery hereaftermay reveal to be appropriate. ANSWER TO ALL CROSS CLAIMS Defendant denies he allegations contained in any and all ross claims that have been or may be asserted against it with respect to this matter, and prays that such Cross Claims be dismissed wi prejudice, that this Defendant recover its costs; fora jury trial on all suc Cross Claims and defenses; and for suchother and furtherrelief as may be just and proper. WHEREFORE, Defendant, Noxell Corporation, having responded to the Original and First Amended Petitions, requests that the Petitions be dismissed, judgment be entered in its favor against Plaitiffs, witcosts assessed against Pla inti fs. PRAYER FOR A JURY TRIAL Defendant, Noxell Corporation, hereby prays for a jury trial on all issues raised or potentially raised by the pleadings as such or as may be amended. Respectfully submitted, this the 9 day of September 2022. COSMICH SIMMONS & BROWN, PLLC /s/ Fo rrest Ren Wilkes FORREST REN WILKES (TX 650 Poydras Street, Suite 2215 New Orleans, Louisiana 70130 Telephone: (504) 262-0040 Facsimile: (504) 262-0041 Email: ren@cs law.com asbestos@cs law.co COSMICH IMMONS & BROWN, PLLC Clint Hagaman 100 East River Center Blvd. Suite 480 Covington, KY 41011 Telephon