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CAUSE NO. 2022-38902-ASB
BEFORE THE ASBESTOS MDL PRE TRIAL JUDGE
TERRY ARMSTRONGand KATHERINE § IN THE DISTRICT COURT
ARMSTRONG
Plaintiff , §
§
vs. §
ARKEMA, INC., et al., § HARRISCOUNTY, TEXAS
§
Defendants . §
Transferred from:
CAUSE NO. DC-22-05538
TERRY ARMSTRONGand KATHERINE § IN THE DISTRICT COURT
ARMSTRONG
Plaintiff , §
§
vs. §
ARKEMA, INC., et al., § DALLAS COUNTY,TEXAS
§
Defendants . §
DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY’S
ANSWER TO PLAINTIFFS’ ORIGINAL PETITION
Defendant Metropolitan Life Insurance Company Metropolitan Life")files this
document and would show the Court the following:
Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Metropolitan Life generally
denies the allegations in the Plaintiffs’ Original Petition and Jury Demand ("Petition").
FIRST DEFENSE
This Court lacks subject matter jurisdiction over this controversy.
SECOND DEFENSE
The Petition fails to state a claim against Defendant Metropolitan Life upon which relief
can be granted.
THIRD DEFENSE
The Petition is barred by the appropriate statute of limitations.
FOURTH DEFENSE
The negligence of Plaintiffs was greater than any negligence of Defendant Metropolitan
Life and as such Plaintiffs is barred by the operation of the applicable Comparative Negligence
statute.
FIFTH DEFENSE
The Plaintiffs are guilty of contributory negligence and such negligence is a bar to
recovery by Plaintiffs in this action.
SIXTH DEFENSE
The Plaintiffs’ claims are barred by the operation of the doctrine of laches.
SEVENTH DEFENSE
The Plaintiffs’ claims are barred by the operation of the doctrine of estoppel.
EIGHTH DEFENSE
The Plaintiffs’ claims are barred by the operation of the doctrine of waiver.
NINTH DEFENSE
The Plaintiffs should have taken action to minimize or eliminate Plaintiffs’ injuries and
Plaintiffs are precluded from recovering damages, or their damages should be reduced by
operation of the doctrine of avoidable consequences and mitigation of damages.
TENTH DEFENSE
Whatever damages were incurred by Plaintiffs were incurred as the result of intervening
and/or superseding acts or omissions by parties over whom Metropolitan Life had no control and
for whose acts or omissions Metropolitan Life was not legally responsible.
ELEVENTH DEFENSE
The Plaintiffs knew or reasonably should have known of the substances which were used
in the activities conducted at the places where Plaintiffs worked and knew or reasonably should
have known of the possible risks of personal injury from exposure to such substances, and by
Plaintiffs’ voluntary undertaking to live, work, and/or continue to work with such substances at
said places, Plaintiffs elected to accept such possible risks of personal injury and these elections
are a bar to recovery by Plaintiffs in this action.
TWELFTH DEFENSE
The accident and/or any injuries sustained by Plaintiffs were caused or contributed to by
the contributory negligence or fault or comparative negligence or fault on the part of Plaintiff.
THIRTEENTH DEFENSE
The acts or omissions attributed to Metropolitan Life in the Plaintiffs’ Petition were not
authorized, adopted, or ratified by Metropolitan Life.
FOURTEENTH DEFENSE
Plaintiffs’ Petition, to the extent that it seeks exemplary or punitive damages, violates
Metropolitan Life's right to substantive and procedural due process under the Fifth and
Fourteenth Amendments of the United States Constitution, and any applicable State Constitution,
and therefore fails to state a cause of action upon which either punitive or exemplary damages
can be awarded.
FIFTEENTH DEFENSE
Plaintiffs’ Petition, to the extent that it seeks exemplary or punitive damages, violate
Metropolitan Life's right to protection from "excessive fines" as provided in Article 1, Section 13
of the Texas Constitution, and violates Metropolitan Life's rights to substantive and procedural
due process as provided in the Fifth and Fourteenth Amendments of the United States
Constitution and any applicable State Constitution, and therefore fails to state a cause of action
supporting the exemplary or punitive damages claimed.
SIXTEENTH DEFENSE
Metropolitan Life's actions were within its rights under the First Amendment of the
United States Constitution, and under any other applicable State Constitution, and are fully
protected thereby.
SEVENTEENTH DEFENSE
Plaintiffs’ Petition, insofar as it seeks an award of punitive or exemplary damages, fails to
allege facts sufficient to constitute a cause of action against Metropolitan Life for such damages.
EIGHTEENTH DEFENSE
Plaintiffs’ Petition, to the extent that it seeks an award of exemplary or punitive damages,
violates Metropolitan Life's right to equal protection and is otherwise unconstitutional under the
United States Constitution and any applicable State Constitution.
NINETEENTH DEFENSE
Upon a showing of some care, or a showing of a certain level of care, gross negligence
and intentional wrongdoing are negated, and no exemplary or punitive damages can be awarded
under the United States Constitution, the Texas Constitution, any other applicable state
constitution, Texas law, and any other applicable state law.
TWENTIETH DEFENSE
Any award of exemplary or punitive damages pursuant to the formula contained in
Section 41.007 of the Texas Civil Practice and Remedies Code would violate Metropolitan Life's
rights to: (a) substantive and procedural due process under the Fifth and Fourteenth
Amendments to the UnitedStates Constitution, as well as Article 1, Se ctions 14, 16, and 19 of
the Texas Constitution; and (b) equal protection of the laws under the Fourteenth Amendment to
the United States Constitution and under Article 1, Section 3 of the Texas Constitution. Such an
award would also violate any other applicable state constitution.
TWENTY FIRST DEFENSE
The standards for determining liability under the conspiracy causes of action and the
other causes of action asserted in this suit are impermissibly vague and do not provide
meaningful guidelines for the imposition of liability. Both generally and as applied to
Metropolitan Life under the facts of this case, those standards, particularly when combined with
the effects of joint and several liability,violate Metro politan Life's rights to: (a) substantive and
procedural due process under the Fifth and Fourteenth Amendments to the United States
Constitution, as well as Article 1, Sections 14, 16, and 19 of the Texas Constitution; and (b)
equal protection of the laws under the Fourteenth Amendment to the United States Constitution
and under Article 1, Section 3 of the Texas Constitution. The standards are also otherwise
unconstitutional under the United States Constitution, the Texas Constitution, and any other
state's law which may be applicable.
TWENTY SECOND DEFENSE
There can be no claim against Metropolitan Life based upon breach of implied warranty,
strict products liability, or conspiracy to violate any standard under implied warranty or strict
oducts liability because, at the time of the conduct alleged in the Petition, no cause of action
existed under the applicable state law based upon implied warranty or strict products liability.
The application of these theories retroactively would violate Article I, Section 9[3] of the United
States Constitution; the provisions of any applicable state constitution; and, if Texas law applies,
Article 1, Section 16 of the Texas Constitution, and any other state's law which may be
applicable.
TWENTY THIRD DEFENSE
Metropolitan Life requests that the Plaintiffs’ recovery against it, if any, be reduced by an
amount equal to all sums paid to the Plaintiffs by other Defendants, persons, or entities, and/or
that Plaintiffs’ recovery be reduced by the percentage of causation or fault attributable to other
Defendants, persons, and/or entities, or that Plaintiffs’ recovery be reduced by other applicable
formula as allowed by law.
TWENTY FOURTH DEFENSE
Any award of prejudgment interest for damages which have not yet accrued would
violate Metropolitan Life's rights to: (a) substantive and procedural due process under the Fifth
and Fourteenth Amendments to the United States Constitution, as well as Article 1, Sections 14,
16, and 19 of the Texas Constitution; and (b) equal protection of the laws under the Fourteenth
Amendment to the United States Constitution and under Article 1, Section 3 of the Texas
Constitution. Such an award would also violate any other applicable State Constitution.
TWENTY FIFTH DEFENSE
In the alternative, Metropolitan Life asserts that any award of punitive damages should be
limited in accordance with Chapter 41 of the Texas Civil Practice & Remedies Code.
TWENTY SIXTH DEFENSE
The injuries and damages of the Plaintiffs, if any, were caused by an unavoidable
accident.
TWENTY SEVENTH DEFENSE
Any award of punitive damages without proof of every element beyond a reasonable
doubt or, in the alternative, by a standard of clear and convincing evidence, would violate
Metropolitan Life's rights under the Fourth Amendment, the Fifth Amendment, the Sixth
Amendment, and the Fourteenth Amendment to the United States Constitution and under
Sections 9, 10, 14, and 19 of Article I of the Texas Constitution.
TWENTY EIGHTH DEFENSE
Metropolitan Life states that multiple awards of punitive damages against it would violate
the prohibition against being twice placed in jeopardy for the same offense embodied in the Fifth
and Fourteenth Amendments to the United States Constitution and similar provisions of any
other state's law which may be applicable.
TWENTY NINTH DEFENSE
Any recovery by Plaintiffs from Metropolitan Life under the theory of joint and several
liability without contribution among joint tortfeasors or any similar doctrine would violate
Metropolitan Life's constitutional rights, including but not limited to, the following provisions:
the Eighth Amendment to the Constitution of the United States, the Fourteenth Amendment to
the Constitution of the United States, the Fifth Amendment to the Constitution of the United
States, andany other state's law which may be applicable.
THIRTIETH DEFENSE
Metropolitan Life states that it cannot be held liable as a matter of law for injuries or
damage allegedly sustained as a result of exposure to products containing asbestos allegedly used
Plaintiff s to the extent such exposure was to products containing asbestos manufactured and
distributed by other Defendants pursuant to and in strict conformity with specific regulations and
specifications set forth by the United States Government. Metropolitan Life avers further that at
all times relevant to the allegations contained in the petition, the products allegedly containing
asbestos substantially conformed to those specifications set forth and approved by the United
States Government, and the United States Government had actual knowledge of the hazards, if
any, associated with the prolonged exposure to asbestos.
THIRTY FIRST DEFENSE
Metropolitan Life states that the Plaintiffs and Plaintiffs’ employers were sophisticated
users of products containing asbestos and had full knowledge of the dangers and risks associated
with using or working around asbestos.
THIRTY SECOND DEFENSE
Metropolitan Life states that it is entitled to a setoff or credit for any amounts received by
Plaintiffs orto be receive d by Plaintiffs from any other source whatsoever with respect to any
recovery of Plaintiffs arising out of any claims and/or allegations asserted herein against any
other person or party. Such would include but not be limited to any settlement and/or
compromise and/or any damages paid as a result of bankruptcy and/or other litigation.
THIRTY THIRD DEFENSE
At all times relevant hereto, the knowledge of Plaintiffs’ employers was superior to that
of Metropolitan Life with respect to possible health hazards associated with Plaintiffs’
employment, and, therefore, if there was any duty to warn Plaintiffs or provide protection to him,
it was the duty of said employers, not of Metropolitan Life, and breach of that duty was an
intervening and/or superseding cause ofthe injuries alleged by Plaintiff.
THIRTY FOURTH DEFENSE
In the event that it be shown that Plaintiffs used any product or material, as alleged in the
Petition, which gave rise to the injuries as set forth therein, the same was misused, abused,
modified, altered, or subjected to abnormal use.
THIRTY FIFTH DEFENSE
Plaintiffs’ alleged injuries and damages, if any, were proximately caused by or
contributed to by exposure or inhalation of noxious and deleterious fumes and residues from
industrial products or by-products prevalent on their job sites, by the cumulative effects of
exposure to all types of environmental and industrial pollutants of air and water, or by
substances, products, or other causes not attributable to or connected with Metropolitan Life.
IRTY SIXTH DEFENSE
If all or most of the witnesses to the alleged asbestos exposure of Plaintiffs reside outside
of Texas, travel to and from this forum by witnesses and counsel for necessary discovery and
trial would place an undue burden upon Defendants. Furthermore, this Court may be required
under principles of conflict of laws to apply foreign law, with which this Court and Texas
counsel are unfamiliar. Therefore, the Petition should be dismissed under the doctrine of forum
non conveniens.
THIRTY SEVENTH DEFENSE
The Plaintiffs’ claims should be denied to the extent they are barred by the operation of
the doctrine of accord and satisfaction.
THIRTY EIGHTH DEFENSE
The Plaintiffs’ claims should be denied to the extent they are barred by the operation of
the doctrine of release and settlement.
HIRTY NINTH DEFENSE
The Plaintiffs’ claims should be denied to the extent they are barred by the operation of
the doctrine of payment.
CROSS ACTION
While continuing to deny any and all liability to the Plaintiffs, and without waiving any
of its defenses, in the unlikely event that Metropolitan Life should, in any respect, be held liable,
Metropolitan Lifeasserts its rights against all the defendants or third -party Defendants now or
hereafter joined in this cause. If Metropolitan Life is in any respect found liable to the Plaintiffs,
it is entitled to judgment over and against the above Cross-Defendants, jointly and severally, for
indemnity and/or contribution, pursuant to the common law and statutes of this state, including
the laws of negligence, products liability and breach of warranty, both express and implied.
ANSWER TO CROSS ACTIONS
Pursuant to Tex. R. Civ. P. 92, Metropolitan Life generally denies the allegations in any
cross actions against it, and incorporates by reference all defenses set out above.
Pleading further in the alternative, Metropolitan Life requests that Plaintiffs’ recovery
against this Defendant, if any, be reduced by an amount equal to all sums paid Plaintiffs
other Defendants, persons or concerns, and/or that Plaintiffs’ recovery be reduced by the
percentage of causation or fault attributable to Co-Defendants and/or other persons and concerns.
WHEREFORE, PREMISES CONSIDERED, Metropolitan Life Insurance Company
prays that the Plaintiffs take nothing; that Metropolitan Liferecover its costs; and, in the event
that any party recovers a judgment against Metropolitan Life, that Metropolitan Lifehave and
recover judgment for indemnity and/or contribution against the Cross-Defendants; and that it
receives such other and further relief, both general and special, to which it may show itself justly
entitled.
Respectfully submitted,
RHODES & HUMBLE LLP
By: _________________________________
ENNETH D. RHOD
SBN: 16821300
120 East First Street
P.O. Box 1138
Cameron, Texas 76520
Phone: (281) 642-5459
E-mail: krhodes@rhodes-humble.com
ATTORNEYS FOR DEFENDANT,
METROPOLITAN LIFE INSURANCE
COMPANY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been served
on all counsel of record, pursuant to the Texas Rules of Civil Procedure, on Wednesday, July 6,
KENNETH D. RHODES
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CAUSE NO. 2022-38902-ASB BEFORE THE ASBESTOS MDL PRE TRIAL JUDGE TERRY ARMSTRONGand KATHERINE § IN THE DISTRICT COURT ARMSTRONG Plaintiff , § § vs. § ARKEMA, INC., et al., § HARRISCOUNTY, TEXAS § Defendants . § Transferred from: CAUSE NO. DC-22-05538 TERRY ARMSTRONGand KATHERINE § IN THE DISTRICT COURT ARMSTRONG Plaintiff , § § vs. § ARKEMA, INC., et al., § DALLAS COUNTY,TEXAS § Defendants . § DEFENDANT METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO PLAINTIFFS’ ORIGINAL PETITION Defendant Metropolitan Life Insurance Company Metropolitan Life")files this document and would show the Court the following: Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Metropolitan Life generally denies the allegations in the Plaintiffs’ Original Petition and Jury Demand ("Petition"). FIRST DEFENSE This Court lacks subject matter jurisdiction over this controversy. SECOND DEFENSE The Petition fails to state a claim against Defendant Metropolitan Life upon which relief can be granted. THIRD DEFENSE The Petition is barred by the appropriate statute of limitations. FOURTH DEFENSE The negligence of Plaintiffs was greater than any negligence of Defendant Metropolitan Life and as such Plaintiffs is barred by the operation of the applicable Comparative Negligence statute. FIFTH DEFENSE The Plaintiffs are guilty of contributory negligence and such negligence is a bar to recovery by Plaintiffs in this action. SIXTH DEFENSE The Plaintiffs’ claims are barred by the operation of the doctrine of laches. SEVENTH DEFENSE The Plaintiffs’ claims are barred by the operation of the doctrine of estoppel. EIGHTH DEFENSE The Plaintiffs’ claims are barred by the operation of the doctrine of waiver. NINTH DEFENSE The Plaintiffs should have taken action to minimize or eliminate Plaintiffs’ injuries and Plaintiffs are precluded from recovering damages, or their damages should be reduced by operation of the doctrine of avoidable consequences and mitigation of damages. TENTH DEFENSE Whatever damages were incurred by Plaintiffs were incurred as the result of intervening and/or superseding acts or omissions by parties over whom Metropolitan Life had no control and for whose acts or omissions Metropolitan Life was not legally responsible. ELEVENTH DEFENSE The Plaintiffs knew or reasonably should have known of the substances which were used in the activities conducted at the places where Plaintiffs worked and knew or reasonably should have known of the possible risks of personal injury from exposure to such substances, and by Plaintiffs’ voluntary undertaking to live, work, and/or continue to work with such substances at said places, Plaintiffs elected to accept such possible risks of personal injury and these elections are a bar to recovery by Plaintiffs in this action. TWELFTH DEFENSE The accident and/or any injuries sustained by Plaintiffs were caused or contributed to by the contributory negligence or fault or comparative negligence or fault on the part of Plaintiff. THIRTEENTH DEFENSE The acts or omissions attributed to Metropolitan Life in the Plaintiffs’ Petition were not authorized, adopted, or ratified by Metropolitan Life. FOURTEENTH DEFENSE Plaintiffs’ Petition, to the extent that it seeks exemplary or punitive damages, violates Metropolitan Life's right to substantive and procedural due process under the Fifth and Fourteenth Amendments of the United States Constitution, and any applicable State Constitution, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. FIFTEENTH DEFENSE Plaintiffs’ Petition, to the extent that it seeks exemplary or punitive damages, violate Metropolitan Life's right to protection from "excessive fines" as provided in Article 1, Section 13 of the Texas Constitution, and violates Metropolitan Life's rights to substantive and procedural due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and any applicable State Constitution, and therefore fails to state a cause of action supporting the exemplary or punitive damages claimed. SIXTEENTH DEFENSE Metropolitan Life's actions were within its rights under the First Amendment of the United States Constitution, and under any other applicable State Constitution, and are fully protected thereby. SEVENTEENTH DEFENSE Plaintiffs’ Petition, insofar as it seeks an award of punitive or exemplary damages, fails to allege facts sufficient to constitute a cause of action against Metropolitan Life for such damages. EIGHTEENTH DEFENSE Plaintiffs’ Petition, to the extent that it seeks an award of exemplary or punitive damages, violates Metropolitan Life's right to equal protection and is otherwise unconstitutional under the United States Constitution and any applicable State Constitution. NINETEENTH DEFENSE Upon a showing of some care, or a showing of a certain level of care, gross negligence and intentional wrongdoing are negated, and no exemplary or punitive damages can be awarded under the United States Constitution, the Texas Constitution, any other applicable state constitution, Texas law, and any other applicable state law. TWENTIETH DEFENSE Any award of exemplary or punitive damages pursuant to the formula contained in Section 41.007 of the Texas Civil Practice and Remedies Code would violate Metropolitan Life's rights to: (a) substantive and procedural due process under the Fifth and Fourteenth Amendments to the UnitedStates Constitution, as well as Article 1, Se ctions 14, 16, and 19 of the Texas Constitution; and (b) equal protection of the laws under the Fourteenth Amendment to the United States Constitution and under Article 1, Section 3 of the Texas Constitution. Such an award would also violate any other applicable state constitution. TWENTY FIRST DEFENSE The standards for determining liability under the conspiracy causes of action and the other causes of action asserted in this suit are impermissibly vague and do not provide meaningful guidelines for the imposition of liability. Both generally and as applied to Metropolitan Life under the facts of this case, those standards, particularly when combined with the effects of joint and several liability,violate Metro politan Life's rights to: (a) substantive and procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Sections 14, 16, and 19 of the Texas Constitution; and (b) equal protection of the laws under the Fourteenth Amendment to the United States Constitution and under Article 1, Section 3 of the Texas Constitution. The standards are also otherwise unconstitutional under the United States Constitution, the Texas Constitution, and any other state's law which may be applicable. TWENTY SECOND DEFENSE There can be no claim against Metropolitan Life based upon breach of implied warranty, strict products liability, or conspiracy to violate any standard under implied warranty or strict oducts liability because, at the time of the conduct alleged in the Petition, no cause of action existed under the applicable state law based upon implied warranty or strict products liability. The application of these theories retroactively would violate Article I, Section 9[3] of the United States Constitution; the provisions of any applicable state constitution; and, if Texas law applies, Article 1, Section 16 of the Texas Constitution, and any other state's law which may be applicable. TWENTY THIRD DEFENSE Metropolitan Life requests that the Plaintiffs’ recovery against it, if any, be reduced by an amount equal to all sums paid to the Plaintiffs by other Defendants, persons, or entities, and/or that Plaintiffs’ recovery be reduced by the percentage of causation or fault attributable to other Defendants, persons, and/or entities, or that Plaintiffs’ recovery be reduced by other applicable formula as allowed by law. TWENTY FOURTH DEFENSE Any award of prejudgment interest for damages which have not yet accrued would violate Metropolitan Life's rights to: (a) substantive and procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Sections 14, 16, and 19 of the Texas Constitution; and (b) equal protection of the laws under the Fourteenth Amendment to the United States Constitution and under Article 1, Section 3 of the Texas Constitution. Such an award would also violate any other applicable State Constitution. TWENTY FIFTH DEFENSE In the alternative, Metropolitan Life asserts that any award of punitive damages should be limited in accordance with Chapter 41 of the Texas Civil Practice & Remedies Code. TWENTY SIXTH DEFENSE The injuries and damages of the Plaintiffs, if any, were caused by an unavoidable accident. TWENTY SEVENTH DEFENSE Any award of punitive damages without proof of every element beyond a reasonable doubt or, in the alternative, by a standard of clear and convincing evidence, would violate Metropolitan Life's rights under the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, and the Fourteenth Amendment to the United States Constitution and under Sections 9, 10, 14, and 19 of Article I of the Texas Constitution. TWENTY EIGHTH DEFENSE Metropolitan Life states that multiple awards of punitive damages against it would violate the prohibition against being twice placed in jeopardy for the same offense embodied in the Fifth and Fourteenth Amendments to the United States Constitution and similar provisions of any other state's law which may be applicable. TWENTY NINTH DEFENSE Any recovery by Plaintiffs from Metropolitan Life under the theory of joint and several liability without contribution among joint tortfeasors or any similar doctrine would violate Metropolitan Life's constitutional rights, including but not limited to, the following provisions: the Eighth Amendment to the Constitution of the United States, the Fourteenth Amendment to the Constitution of the United States, the Fifth Amendment to the Constitution of the United States, andany other state's law which may be applicable. THIRTIETH DEFENSE Metropolitan Life states that it cannot be held liable as a matter of law for injuries or damage allegedly sustained as a result of exposure to products containing asbestos allegedly used Plaintiff s to the extent such exposure was to products containing asbestos manufactured and distributed by other Defendants pursuant to and in strict conformity with specific regulations and specifications set forth by the United States Government. Metropolitan Life avers further that at all times relevant to the allegations contained in the petition, the products allegedly containing asbestos substantially conformed to those specifications set forth and approved by the United States Government, and the United States Government had actual knowledge of the hazards, if any, associated with the prolonged exposure to asbestos. THIRTY FIRST DEFENSE Metropolitan Life states that the Plaintiffs and Plaintiffs’ employers were sophisticated users of products containing asbestos and had full knowledge of the dangers and risks associated with using or working around asbestos. THIRTY SECOND DEFENSE Metropolitan Life states that it is entitled to a setoff or credit for any amounts received by Plaintiffs orto be receive d by Plaintiffs from any other source whatsoever with respect to any recovery of Plaintiffs arising out of any claims and/or allegations asserted herein against any other person or party. Such would include but not be limited to any settlement and/or compromise and/or any damages paid as a result of bankruptcy and/or other litigation. THIRTY THIRD DEFENSE At all times relevant hereto, the knowledge of Plaintiffs’ employers was superior to that of Metropolitan Life with respect to possible health hazards associated with Plaintiffs’ employment, and, therefore, if there was any duty to warn Plaintiffs or provide protection to him, it was the duty of said employers, not of Metropolitan Life, and breach of that duty was an intervening and/or superseding cause ofthe injuries alleged by Plaintiff. THIRTY FOURTH DEFENSE In the event that it be shown that Plaintiffs used any product or material, as alleged in the Petition, which gave rise to the injuries as set forth therein, the same was misused, abused, modified, altered, or subjected to abnormal use. THIRTY FIFTH DEFENSE Plaintiffs’ alleged injuries and damages, if any, were proximately caused by or contributed to by exposure or inhalation of noxious and deleterious fumes and residues from industrial products or by-products prevalent on their job sites, by the cumulative effects of exposure to all types of environmental and industrial pollutants of air and water, or by substances, products, or other causes not attributable to or connected with Metropolitan Life. IRTY SIXTH DEFENSE If all or most of the witnesses to the alleged asbestos exposure of Plaintiffs reside outside of Texas, travel to and from this forum by witnesses and counsel for necessary discovery and trial would place an undue burden upon Defendants. Furthermore, this Court may be required under principles of conflict of laws to apply foreign law, with which this Court and Texas counsel are unfamiliar. Therefore, the Petition should be dismissed under the doctrine of forum non conveniens. THIRTY SEVENTH DEFENSE The Plaintiffs’ claims should be denied to the extent they are barred by the operation of the doctrine of accord and satisfaction. THIRTY EIGHTH DEFENSE The Plaintiffs’ claims should be denied to the extent they are barred by the operation of the doctrine of release and settlement. HIRTY NINTH DEFENSE The Plaintiffs’ claims should be denied to the extent they are barred by the operation of the doctrine of payment. CROSS ACTION While continuing to deny any and all liability to the Plaintiffs, and without waiving any of its defenses, in the unlikely event that Metropolitan Life should, in any respect, be held liable, Metropolitan Lifeasserts its rights against all the defendants or third -party Defendants now or hereafter joined in this cause. If Metropolitan Life is in any respect found liable to the Plaintiffs, it is entitled to judgment over and against the above Cross-Defendants, jointly and severally, for indemnity and/or contribution, pursuant to the common law and statutes of this state, including the laws of negligence, products liability and breach of warranty, both express and implied. ANSWER TO CROSS ACTIONS Pursuant to Tex. R. Civ. P. 92, Metropolitan Life generally denies the allegations in any cross actions against it, and incorporates by reference all defenses set out above. Pleading further in the alternative, Metropolitan Life requests that Plaintiffs’ recovery against this Defendant, if any, be reduced by an amount equal to all sums paid Plaintiffs other Defendants, persons or concerns, and/or that Plaintiffs’ recovery be reduced by the percentage of causation or fault attributable to Co-Defendants and/or other persons and concerns. WHEREFORE, PREMISES CONSIDERED, Metropolitan Life Insurance Company prays that the Plaintiffs take nothing; that Metropolitan Liferecover its costs; and, in the event that any party recovers a judgment against Metropolitan Life, that Metropolitan Lifehave and recover judgment for indemnity and/or contribution against the Cross-Defendants; and that it receives such other and further relief, both general and special, to which it may show itself justly entitled. Respectfully submitted, RHODES & HUMBLE LLP By: _________________________________ ENNETH D. RHOD SBN: 16821300 120 East First Street P.O. Box 1138 Cameron, Texas 76520 Phone: (281) 642-5459 E-mail: krhodes@rhodes-humble.com ATTORNEYS FOR DEFENDANT, METROPOLITAN LIFE INSURANCE COMPANY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on all counsel of record, pursuant to the Texas Rules of Civil Procedure, on Wednesday, July 6, KENNETH D. RHODES