On December 11, 2019 a
Answer
was filed
involving a dispute between
Blake, Victoria,
French, Susan,
Mcclary, Steven,
Niskanen, Valeri,
Ortegon, Tamlyn,
and
3M Company,
A.J. Peters & Son,
Aladdin Heating Corporation,
Anderson, Rowe & Buckley, Inc.,
Asbestos Corporation Limited,
Brand Insulations, Inc., Individually And As,
Chicago Bridge & Iron Company,
Consolidated Insulation, Inc., A Dissolved,
Contra Costa Electric, Inc.,
Cooper Bros., Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Dillingham Construction N.A., Inc.,
Does 1 Through 800, Inclusive, As Required By,
Douglass Insulation Company, Inc.,
Dow Chemical Company, The,
D. Zelinsky & Son, Incorporated,
D. Zelinsky & Sons, Inc.,
Fdcc California, Inc.,
Fluor Corporation,
Frank Bonetti Plumbing, Inc.,
General Electric Company,
Golden Gate Drywall,
Goulds Pumps Llc,
Grinnell Llc,
Imo Industries Inc.,
Ingersoll-Rand Company,
International Business Machines Corporation,
James A. Nelson Co., Inc.,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metalclad Insulation Llc,
Metropolitan Life Insurance Company,
N.V. Heathorn, Inc.,
O C Mcdonald Co Inc,
O.C. Mcdonald Company, Inc.,
Oscar E. Erickson, Inc.,
Pfizer, Inc.,
Riley Power Inc.,
Riley Power Inc., (Erroneously Sued As Alternate,
Robertshaw Controls Company,
Rosendin Electric, Inc.,
Sam P. Wallace Company, Inc.,
Scott Co. Of California,
Shell Oil Company,
S.J. Amoroso Construction Co., Inc.,
S.J. Amoroso Construction Co., Llc.,
Therma Corporation,
Trane U.S. Inc.,
Union Oil Company Of California,
University Mechanical & Engineering Contractors,,
Valley Sheet Metal Co.,
Veolia Es Industrial Services, Inc.,
Viacomcbs Inc,
Viacomcbs, Inc. F K A Cbs Corporation, A Delaware,
W.L. Hickey Sons, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 INGRID K. CAMPAGNE, State Bar No. 162164
icampagne@wfbm.com
2 IAN P. DILLON, State Bar No. 203612 ELECTRONICALLY
idillon@wfbm.com
3 WFBM, LLP FILED
Superior Court of California,
601 Montgomery Street, Ninth Floor County of San Francisco
4 San Francisco, California 94111-2612
Telephone: (415) 781-7072 10/05/2020
Clerk of the Court
5 Facsimile: (415) 391-6258 BY: ANNA TORRES
Deputy Clerk
6 Attorneys for Defendant
N.V. HEATHORN, INC.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813
11 Interest to and as Wrongful Death Heir of
BILLY JOE McCLARY, Deceased; and ANSWER OF DEFENDANT N.V.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 VICTORIA BLAKE, TAMLYN ORTEGON, HEATHORN, INC. TO PLAINTIFFS'
SUSAN FRENCH and STEVEN McCLARY, FIRST AMENDED COMPLAINT FOR
Walsworth
13 as Wrongful Death Heirs of BILLY JOE SURVIVAL, WRONGFUL DEATH -
McCLARY, Deceased, ASBESTOS
14
Plaintiffs, Action Filed: August 7, 2020
15
v.
16
GOLDEN GATE DRYWALL; et al.
17
Defendants.
18
19
20 Defendant N. V. HEATHORN, INC. ("Defendant"), in answering the unverified First
21 Amended Complaint ("complaint") of Plaintiffs VALERI NISKANEN, as Successor-in-Interest to
22 and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE,
23 TAMLYN ORTEGON, SUSAN FRENCH and STEVEN McCLARY, as Wrongful Death Heirs
24 of BILLY JOE McCLARY, Deceased ("Plaintiffs"), for itself alone, and severing itself from all
25 others, admits, denies and alleges as follows:
26 1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies,
27 both generally and specifically, all allegations of each and every purported cause of action or
28 count of Plaintiffs' complaint, denying specifically that Plaintiffs have been, are, or will be
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 damaged in the manner or sum alleged, or in any other manner or sums at all, and further denying
2 that Defendant was negligent in any manner, that the alleged product installed or distributed was
3 defective in any way, or that the alleged defect was the proximate cause of the Plaintiffs' claimed
4 damages or injuries.
5 DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
6 DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
7 CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH PLEADED
8 SEPARATELY TO EACH AND EVERY CAUSE OF ACTION:
9 FIRST AFFIRMATIVE DEFENSE
10 2. Plaintiffs' complaint and each and every purported cause of action or count thereof
11 fail to state facts sufficient to constitute a cause or causes of action against Defendant.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 SECOND AFFIRMATIVE DEFENSE
Walsworth
13 3. Defendant is informed and believes and thereon alleges that the acts, injuries and
14 damages alleged in the complaint occurred and were proximately caused by either the sole
15 negligence or fault of Plaintiffs' decedent, BILLY JOE McCLARY ("decedent"), which sole
16 negligence or fault bars Plaintiffs' recovery, or were contributed to by the decedent's negligence or
17 fault. Plaintiffs' recovery, if any, should be reduced by an amount proportionate to the amount by
18 which the decedent's negligence or fault contributed to the happening of the alleged incident
19 and/or alleged injury.
20 THIRD AFFIRMATIVE DEFENSE
21 4. Defendant is informed and believes and thereon alleges that the negligence,
22 carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
23 persons and entities not parties to this lawsuit, proximately caused or contributed to the injuries
24 and damages, if any, alleged by Plaintiffs. The negligence, carelessness and other acts or
25 omissions of the other Defendants in this lawsuit, and other persons and entities not parties to this
26 lawsuit, account for one hundred percent (100%) of the causal or contributing factors relating to
27 the injuries and damages, if any, and/or constitute the supervening and/or intervening causes of the
28 injuries and damages, if any, alleged by Plaintiffs.
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 FOURTH AFFIRMATIVE DEFENSE
2 5. Defendant is informed and believes and thereon alleges that the accident, injury and
3 damages alleged in Plaintiffs' complaint occurred and were proximately caused by either the sole
4 negligence of the decedent's employers other than Defendant, or co-employees, which sole
5 negligence bars Plaintiffs' recovery, or were contributed to by the negligence of the decedent's
6 employers other than Defendant, or co-employees. Plaintiffs' recovery, if any, must be reduced by
7 an amount proportionate to the amount by which the negligence of the decedent's employers other
8 than Defendant, and/or the negligence of decedent's co-employees contributed to the happening of
9 the alleged accident and the alleged injuries.
10 FIFTH AFFIRMATIVE DEFENSE
11 6. Defendant alleges that while at all times denying any liability whatsoever to
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 Plaintiffs, any alleged liability or responsibility of Defendant is small in proportion to the alleged
Walsworth
13 liability and responsibility of other persons or entities, including other persons and entities who are
14 parties herein, and Plaintiffs should be limited to seeking recovery from Defendant for the
15 proportion in which Defendant is allegedly liable or responsible, all such alleged liability and
16 responsibility being expressly denied.
17 SIXTH AFFIRMATIVE DEFENSE
18 Defendant is informed and believes and thereon alleges that at the time the alleged operations, acts
19 and conduct occurred, the decedent was acting within the course and scope of employment, and
20 was entitled to receive and did receive workers' compensation benefits. The decedent's employers
21 other than Defendant failed to provide the decedent with a safe place in which to work, and said
22 employers' negligence, carelessness and other acts and omissions proximately caused the injuries
23 and damages alleged by Plaintiffs. Therefore, these employers and their workers' compensation
24 carriers are barred from any recovery by lien or otherwise herein, and Defendant is entitled to set
25 off any such benefits Plaintiffs and/or the decedent have received against any judgment rendered
26 in favor of Plaintiffs.
27 ///
28 ///
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 SEVENTH AFFIRMATIVE DEFENSE
2 7. Defendant is informed and believes and thereon alleges that the decedent knew of
3 the risks and dangers inherent to his conduct, and with full knowledge of the risks and dangers and
4 with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risks,
5 injuries and damages, if any, sustained thereby. The decedent's assumption of risk bars or
6 proportionately reduces any recovery by Plaintiffs.
7 EIGHTH AFFIRMATIVE DEFENSE
8 8. Defendant alleges that if the decedent was injured by materials, products and/or
9 equipment installed, supplied or utilized by Defendant, which is hereby expressly denied, such
10 products and/or equipment were intended for and provided to a knowledgeable and sophisticated
11 distributor or user over whom Defendant had no control who was fully informed as to the risks
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 and dangers, if any, associated with the products and/or equipment and the precautions, if any,
Walsworth
13 required to avoid the risks and dangers, if any.
14 NINTH AFFIRMATIVE DEFENSE
15 9. Defendant is informed and believes and thereon alleges that decedent was a
16 member of a sophisticated group of users of Defendant's services, products, materials and/or
17 equipment.
18 TENTH AFFIRMATIVE DEFENSE
19 10. Defendant is informed and believes and thereon alleges that the decedent possessed
20 the level of knowledge and skill based upon the decedent's training, education and/or experience
21 such that the decedent should have been categorized as a sophisticated user of Defendant's
22 services, products, materials and/or equipment.
23 ELEVENTH AFFIRMATIVE DEFENSE
24 11. Defendant is informed and believes and thereon alleges that the decedent would
25 reasonably have been expected to know of the hazards of working with and/or around Defendant's
26 services, products, materials and/or equipment.
27 ///
28 ///
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWELFTH AFFIRMATIVE DEFENSE
2 12. Defendant is informed and believes and thereon alleges that the decedent's
3 employers were sophisticated users of any products that caused him injury, meaning that this
4 answering Defendant can have no liability pursuant to Johnson v. American Standard, Inc. (2008)
5 43 Cal.4th 56 and Webb v. Special Electric Co, Inc. (2016) 63 Cal.4th 167.
6 THIRTEENTH AFFIRMATIVE DEFENSE
7 13. Defendant is informed and believes and thereon alleges that the benefits of the
8 products and/or equipment referred to in Plaintiffs' complaint outweighed the risk of danger, if
9 any, inherent in said products or equipment.
10 FOURTEENTH AFFIRMATIVE DEFENSE
11 14. Defendant alleges that Plaintiffs have failed to make reasonable efforts to mitigate
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 their injuries and/or damages, if any.
Walsworth
13 FIFTEENTH AFFIRMATIVE DEFENSE
14 15. Plaintiffs' complaint and each and every cause of action are barred by the
15 applicable statute of limitations including, but not limited to, Code of Civil Procedure Sections
16 335.1, 338, 339, 340.2 and 343.
17 SIXTEENTH AFFIRMATIVE DEFENSE
18 16. Plaintiffs' action is barred by the provisions of Labor Code Section 3600, et seq.
19 SEVENTEENTH AFFIRMATIVE DEFENSE
20 17. Defendant alleges that Plaintiffs have waived and are estopped from asserting any
21 claim against Defendant by reason of the decedent's approval and consent to the risks of the
22 matters causing the damages, if any, and the decedent's acknowledgment of, acquiescence in and
23 consent to the alleged acts or omissions, if any, of Defendant.
24 EIGHTEENTH AFFIRMATIVE DEFENSE
25 18. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of
26 this action and thereby prejudiced the rights of Defendant.
27 NINETEENTH AFFIRMATIVE DEFENSE
28 19. Defendant alleges that Defendant distributed and installed products in full
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 compliance with regulations and/or specifications promulgated by the United States Government
2 and any recovery by Plaintiffs is barred as a consequence.
3 TWENTIETH AFFIRMATIVE DEFENSE
4 20. Defendant alleges that Plaintiffs are barred from asserting any claim based on
5 breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties
6 alleged in the complaint in the event such alleged warranties are proved at trial.
7 TWENTY-FIRST AFFIRMATIVE DEFENSE
8 21. Defendant alleges that Plaintiffs have waived whatever rights they may otherwise
9 have had for breach of warranty in that Plaintiffs and/or the decedent failed to notify Defendant of
10 any alleged breach of warranty, express or implied, and/or of any alleged defect in any product
11 installed or marketed by Defendant within a reasonable time after they discovered, and/or should
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 have discovered, any defect or nonconformity, if any existed, thereby prejudicing Defendant from
Walsworth
13 being able to fully investigate and defend the allegations contained in Plaintiffs' complaint.
14 TWENTY-SECOND AFFIRMATIVE DEFENSE
15 22. Defendant alleges that Plaintiffs are now estopped from claiming that any product
16 installed or marketed by Defendant was in any way defective or failed to conform to any alleged
17 warranties in that Plaintiffs and/or the decedent failed to notify Defendant of any defect or
18 nonconformity in any product within a reasonable time after they discovered, and/or should have
19 discovered, any defect or nonconformity, if any existed.
20 TWENTY-THIRD AFFIRMATIVE DEFENSE
21 23. Defendant alleges that neither Plaintiffs nor the decedent were in privity of contract
22 with Defendant and such lack of privity bars recovery herein upon any theory of warranty.
23 TWENTY-FOURTH AFFIRMATIVE DEFENSE
24 24. Defendant alleges that any injuries or damages alleged by Plaintiffs, the existence
25 thereof being expressly denied, are the direct and proximate result of the decedent's particular,
26 idiosyncratic, peculiar or unforeseeable susceptibility to the alleged products installed or
27 distributed by Defendant, which reaction was not the result of any conduct or omission of
28 Defendant nor the result of any defect in any product installed or distributed by Defendant.
5323273.1
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ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 25. Defendant alleges that if the decedent was injured by any product installed or
3 distributed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs or the
4 decedent and is not liable for those injuries or for any claimed damages as the products when
5 installed or distributed conformed to the then current state-of-the-art specifications, and because
6 the then current state-of-the-art medical, scientific and industrial knowledge, art and practice were
7 such that Defendant did not and could not know that the products might pose a risk of harm in
8 normal and foreseeable use.
9 TWENTY-SIXTH AFFIRMATIVE DEFENSE
10 26. Defendant alleges that neither Plaintiffs nor the decedent reasonably relied upon
11 any act, omission or representation of Defendant.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Walsworth
13 27. In the event Plaintiffs are entitled to non-economic damages including, but not
14 limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
15 companionship, loss of consortium and/or injury to reputation and humiliation, Defendant shall be
16 liable only for the amount of non-economic damages allocated to Defendant's percentage of fault
17 and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
18 Code §1431.2.
19 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
20 28. Defendant alleges that Defendant was not engaged in the business of supplying,
21 tendering, installing, distributing and/or furnishing products and/or goods or services for use or
22 consumption by the general public.
23 TWENTY-NINTH AFFIRMATIVE DEFENSE
24 29. Defendant denies any and all liability to the extent that Plaintiffs may assert
25 Defendant's alleged liability as a successor, successor in business, successor in product line or a
26 portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a
27 portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
28 owner or member in an entity in which there has been research, study, manufacturing, fabricating,
5323273.1
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2480-28.042
Preview
1 INGRID K. CAMPAGNE, State Bar No. 162164 icampagne@wfbm.com 2 IAN P. DILLON, State Bar No. 203612 ELECTRONICALLY idillon@wfbm.com 3 WFBM, LLP FILED Superior Court of California, 601 Montgomery Street, Ninth Floor County of San Francisco 4 San Francisco, California 94111-2612 Telephone: (415) 781-7072 10/05/2020 Clerk of the Court 5 Facsimile: (415) 391-6258 BY: ANNA TORRES Deputy Clerk 6 Attorneys for Defendant N.V. HEATHORN, INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813 11 Interest to and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and ANSWER OF DEFENDANT N.V. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 VICTORIA BLAKE, TAMLYN ORTEGON, HEATHORN, INC. TO PLAINTIFFS' SUSAN FRENCH and STEVEN McCLARY, FIRST AMENDED COMPLAINT FOR Walsworth 13 as Wrongful Death Heirs of BILLY JOE SURVIVAL, WRONGFUL DEATH - McCLARY, Deceased, ASBESTOS 14 Plaintiffs, Action Filed: August 7, 2020 15 v. 16 GOLDEN GATE DRYWALL; et al. 17 Defendants. 18 19 20 Defendant N. V. HEATHORN, INC. ("Defendant"), in answering the unverified First 21 Amended Complaint ("complaint") of Plaintiffs VALERI NISKANEN, as Successor-in-Interest to 22 and as Wrongful Death Heir of BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE, 23 TAMLYN ORTEGON, SUSAN FRENCH and STEVEN McCLARY, as Wrongful Death Heirs 24 of BILLY JOE McCLARY, Deceased ("Plaintiffs"), for itself alone, and severing itself from all 25 others, admits, denies and alleges as follows: 26 1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies, 27 both generally and specifically, all allegations of each and every purported cause of action or 28 count of Plaintiffs' complaint, denying specifically that Plaintiffs have been, are, or will be 5323273.1 -1- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 damaged in the manner or sum alleged, or in any other manner or sums at all, and further denying 2 that Defendant was negligent in any manner, that the alleged product installed or distributed was 3 defective in any way, or that the alleged defect was the proximate cause of the Plaintiffs' claimed 4 damages or injuries. 5 DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND 6 DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY 7 CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH PLEADED 8 SEPARATELY TO EACH AND EVERY CAUSE OF ACTION: 9 FIRST AFFIRMATIVE DEFENSE 10 2. Plaintiffs' complaint and each and every purported cause of action or count thereof 11 fail to state facts sufficient to constitute a cause or causes of action against Defendant. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 SECOND AFFIRMATIVE DEFENSE Walsworth 13 3. Defendant is informed and believes and thereon alleges that the acts, injuries and 14 damages alleged in the complaint occurred and were proximately caused by either the sole 15 negligence or fault of Plaintiffs' decedent, BILLY JOE McCLARY ("decedent"), which sole 16 negligence or fault bars Plaintiffs' recovery, or were contributed to by the decedent's negligence or 17 fault. Plaintiffs' recovery, if any, should be reduced by an amount proportionate to the amount by 18 which the decedent's negligence or fault contributed to the happening of the alleged incident 19 and/or alleged injury. 20 THIRD AFFIRMATIVE DEFENSE 21 4. Defendant is informed and believes and thereon alleges that the negligence, 22 carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other 23 persons and entities not parties to this lawsuit, proximately caused or contributed to the injuries 24 and damages, if any, alleged by Plaintiffs. The negligence, carelessness and other acts or 25 omissions of the other Defendants in this lawsuit, and other persons and entities not parties to this 26 lawsuit, account for one hundred percent (100%) of the causal or contributing factors relating to 27 the injuries and damages, if any, and/or constitute the supervening and/or intervening causes of the 28 injuries and damages, if any, alleged by Plaintiffs. 5323273.1 -2- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 FOURTH AFFIRMATIVE DEFENSE 2 5. Defendant is informed and believes and thereon alleges that the accident, injury and 3 damages alleged in Plaintiffs' complaint occurred and were proximately caused by either the sole 4 negligence of the decedent's employers other than Defendant, or co-employees, which sole 5 negligence bars Plaintiffs' recovery, or were contributed to by the negligence of the decedent's 6 employers other than Defendant, or co-employees. Plaintiffs' recovery, if any, must be reduced by 7 an amount proportionate to the amount by which the negligence of the decedent's employers other 8 than Defendant, and/or the negligence of decedent's co-employees contributed to the happening of 9 the alleged accident and the alleged injuries. 10 FIFTH AFFIRMATIVE DEFENSE 11 6. Defendant alleges that while at all times denying any liability whatsoever to SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 Plaintiffs, any alleged liability or responsibility of Defendant is small in proportion to the alleged Walsworth 13 liability and responsibility of other persons or entities, including other persons and entities who are 14 parties herein, and Plaintiffs should be limited to seeking recovery from Defendant for the 15 proportion in which Defendant is allegedly liable or responsible, all such alleged liability and 16 responsibility being expressly denied. 17 SIXTH AFFIRMATIVE DEFENSE 18 Defendant is informed and believes and thereon alleges that at the time the alleged operations, acts 19 and conduct occurred, the decedent was acting within the course and scope of employment, and 20 was entitled to receive and did receive workers' compensation benefits. The decedent's employers 21 other than Defendant failed to provide the decedent with a safe place in which to work, and said 22 employers' negligence, carelessness and other acts and omissions proximately caused the injuries 23 and damages alleged by Plaintiffs. Therefore, these employers and their workers' compensation 24 carriers are barred from any recovery by lien or otherwise herein, and Defendant is entitled to set 25 off any such benefits Plaintiffs and/or the decedent have received against any judgment rendered 26 in favor of Plaintiffs. 27 /// 28 /// 5323273.1 -3- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 SEVENTH AFFIRMATIVE DEFENSE 2 7. Defendant is informed and believes and thereon alleges that the decedent knew of 3 the risks and dangers inherent to his conduct, and with full knowledge of the risks and dangers and 4 with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risks, 5 injuries and damages, if any, sustained thereby. The decedent's assumption of risk bars or 6 proportionately reduces any recovery by Plaintiffs. 7 EIGHTH AFFIRMATIVE DEFENSE 8 8. Defendant alleges that if the decedent was injured by materials, products and/or 9 equipment installed, supplied or utilized by Defendant, which is hereby expressly denied, such 10 products and/or equipment were intended for and provided to a knowledgeable and sophisticated 11 distributor or user over whom Defendant had no control who was fully informed as to the risks SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 and dangers, if any, associated with the products and/or equipment and the precautions, if any, Walsworth 13 required to avoid the risks and dangers, if any. 14 NINTH AFFIRMATIVE DEFENSE 15 9. Defendant is informed and believes and thereon alleges that decedent was a 16 member of a sophisticated group of users of Defendant's services, products, materials and/or 17 equipment. 18 TENTH AFFIRMATIVE DEFENSE 19 10. Defendant is informed and believes and thereon alleges that the decedent possessed 20 the level of knowledge and skill based upon the decedent's training, education and/or experience 21 such that the decedent should have been categorized as a sophisticated user of Defendant's 22 services, products, materials and/or equipment. 23 ELEVENTH AFFIRMATIVE DEFENSE 24 11. Defendant is informed and believes and thereon alleges that the decedent would 25 reasonably have been expected to know of the hazards of working with and/or around Defendant's 26 services, products, materials and/or equipment. 27 /// 28 /// 5323273.1 -4- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWELFTH AFFIRMATIVE DEFENSE 2 12. Defendant is informed and believes and thereon alleges that the decedent's 3 employers were sophisticated users of any products that caused him injury, meaning that this 4 answering Defendant can have no liability pursuant to Johnson v. American Standard, Inc. (2008) 5 43 Cal.4th 56 and Webb v. Special Electric Co, Inc. (2016) 63 Cal.4th 167. 6 THIRTEENTH AFFIRMATIVE DEFENSE 7 13. Defendant is informed and believes and thereon alleges that the benefits of the 8 products and/or equipment referred to in Plaintiffs' complaint outweighed the risk of danger, if 9 any, inherent in said products or equipment. 10 FOURTEENTH AFFIRMATIVE DEFENSE 11 14. Defendant alleges that Plaintiffs have failed to make reasonable efforts to mitigate SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 their injuries and/or damages, if any. Walsworth 13 FIFTEENTH AFFIRMATIVE DEFENSE 14 15. Plaintiffs' complaint and each and every cause of action are barred by the 15 applicable statute of limitations including, but not limited to, Code of Civil Procedure Sections 16 335.1, 338, 339, 340.2 and 343. 17 SIXTEENTH AFFIRMATIVE DEFENSE 18 16. Plaintiffs' action is barred by the provisions of Labor Code Section 3600, et seq. 19 SEVENTEENTH AFFIRMATIVE DEFENSE 20 17. Defendant alleges that Plaintiffs have waived and are estopped from asserting any 21 claim against Defendant by reason of the decedent's approval and consent to the risks of the 22 matters causing the damages, if any, and the decedent's acknowledgment of, acquiescence in and 23 consent to the alleged acts or omissions, if any, of Defendant. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 18. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of 26 this action and thereby prejudiced the rights of Defendant. 27 NINETEENTH AFFIRMATIVE DEFENSE 28 19. Defendant alleges that Defendant distributed and installed products in full 5323273.1 -5- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 compliance with regulations and/or specifications promulgated by the United States Government 2 and any recovery by Plaintiffs is barred as a consequence. 3 TWENTIETH AFFIRMATIVE DEFENSE 4 20. Defendant alleges that Plaintiffs are barred from asserting any claim based on 5 breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties 6 alleged in the complaint in the event such alleged warranties are proved at trial. 7 TWENTY-FIRST AFFIRMATIVE DEFENSE 8 21. Defendant alleges that Plaintiffs have waived whatever rights they may otherwise 9 have had for breach of warranty in that Plaintiffs and/or the decedent failed to notify Defendant of 10 any alleged breach of warranty, express or implied, and/or of any alleged defect in any product 11 installed or marketed by Defendant within a reasonable time after they discovered, and/or should SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 have discovered, any defect or nonconformity, if any existed, thereby prejudicing Defendant from Walsworth 13 being able to fully investigate and defend the allegations contained in Plaintiffs' complaint. 14 TWENTY-SECOND AFFIRMATIVE DEFENSE 15 22. Defendant alleges that Plaintiffs are now estopped from claiming that any product 16 installed or marketed by Defendant was in any way defective or failed to conform to any alleged 17 warranties in that Plaintiffs and/or the decedent failed to notify Defendant of any defect or 18 nonconformity in any product within a reasonable time after they discovered, and/or should have 19 discovered, any defect or nonconformity, if any existed. 20 TWENTY-THIRD AFFIRMATIVE DEFENSE 21 23. Defendant alleges that neither Plaintiffs nor the decedent were in privity of contract 22 with Defendant and such lack of privity bars recovery herein upon any theory of warranty. 23 TWENTY-FOURTH AFFIRMATIVE DEFENSE 24 24. Defendant alleges that any injuries or damages alleged by Plaintiffs, the existence 25 thereof being expressly denied, are the direct and proximate result of the decedent's particular, 26 idiosyncratic, peculiar or unforeseeable susceptibility to the alleged products installed or 27 distributed by Defendant, which reaction was not the result of any conduct or omission of 28 Defendant nor the result of any defect in any product installed or distributed by Defendant. 5323273.1 -6- 2480-28.042 ANSWER OF DEFENDANT N.V. HEATHORN, INC. TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 25. Defendant alleges that if the decedent was injured by any product installed or 3 distributed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs or the 4 decedent and is not liable for those injuries or for any claimed damages as the products when 5 installed or distributed conformed to the then current state-of-the-art specifications, and because 6 the then current state-of-the-art medical, scientific and industrial knowledge, art and practice were 7 such that Defendant did not and could not know that the products might pose a risk of harm in 8 normal and foreseeable use. 9 TWENTY-SIXTH AFFIRMATIVE DEFENSE 10 26. Defendant alleges that neither Plaintiffs nor the decedent reasonably relied upon 11 any act, omission or representation of Defendant. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE Walsworth 13 27. In the event Plaintiffs are entitled to non-economic damages including, but not 14 limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and 15 companionship, loss of consortium and/or injury to reputation and humiliation, Defendant shall be 16 liable only for the amount of non-economic damages allocated to Defendant's percentage of fault 17 and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil 18 Code §1431.2. 19 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 20 28. Defendant alleges that Defendant was not engaged in the business of supplying, 21 tendering, installing, distributing and/or furnishing products and/or goods or services for use or 22 consumption by the general public. 23 TWENTY-NINTH AFFIRMATIVE DEFENSE 24 29. Defendant denies any and all liability to the extent that Plaintiffs may assert 25 Defendant's alleged liability as a successor, successor in business, successor in product line or a 26 portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a 27 portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial 28 owner or member in an entity in which there has been research, study, manufacturing, fabricating, 5323273.1 -7- 2480-28.042