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 CHARLES T. SHELDON, State Bar No. 155598
csheldon@wfbm.com
2 DEREK S. JOHNSON, State Bar No. 220988 ELECTRONICALLY
djohnson@wfbm.com
3 EMILY E. ANSELMO, State Bar No. 294899 FILED
Superior Court of California,
eanselmo@wfbm.com County of San Francisco
4 WFBM, LLP
Attorneys at Law 10/13/2020
Clerk of the Court
5 601 Montgomery Street, Ninth Floor BY: JUDITH NUNEZ
San Francisco, California 94111-2612 Deputy Clerk
6 Telephone: (415) 781-7072
Facsimile: (415) 391-6258
7
Attorneys for Defendant
8 GENERAL ELECTRIC COMPANY
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813
Interest to and as Wrongful Death Heir to
Walsworth
13 BILLY JOE McCLARY, Deceased; and DEFENDANT GENERAL ELECTRIC
VICTORIA BLAKE, TAMLYN ORTEGON, COMPANY'S ANSWER TO THE FIRST
14 SUSAN FRENCH and STEPHEN AMENDED COMPLAINT FOR
McCLARY, as Wrongful Death Heirs of SURVIVAL, WRONGFUL DEATH -
15 BILLY JOE McCLARY, Deceased, ASBESTOS
16 Plaintiffs, Action Filed: August 7, 2020
17 v.
18 GOLDEN GATE DRYWALL, et al.,
19 Defendants.
20
21 Defendant GENERAL ELECTRIC COMPANY (“Defendant”) answers the unverified first
22 amended complaint for wrongful death (“complaint”) as follows:
23 Under the provisions of Code of Civil Procedure Section 431.30, Defendant denies each
24 and every and all of the allegations of said complaint and denies that Plaintiffs sustained damages
25 in the sum or sums alleged, or in any other sum, or at all.
26 / / /
27 / / /
28 / / /
5335596.1
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 FIRST AFFIRMATIVE DEFENSE
2 Defendant alleges that said complaint and each cause of action therein fails to state facts
3 sufficient to constitute a cause of action against Defendant.
4 SECOND AFFIRMATIVE DEFENSE
5 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
6 said complaint are barred by the applicable statutes of limitations, including, but not limited to, the
7 provisions of Code of Civil Procedure sections 335.1, 338, 340.2 and 361.
8 THIRD AFFIRMATIVE DEFENSE
9 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
10 said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and
11 laches.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 FOURTH AFFIRMATIVE DEFENSE
Walsworth
13 Defendant alleges that Plaintiffs’ decedent BILLY JOE McCLARY (“Decedent”) and
14 others were negligent or otherwise at fault in and about the matters referred to in said complaint,
15 and that such negligence and/or other fault bars or diminishes Plaintiffs’ recovery against
16 Defendant.
17 FIFTH AFFIRMATIVE DEFENSE
18 Defendant alleges that decedent BILLY JOE McCLARY was solely negligent in and about
19 the matters alleged in said complaint and that such negligence on the part of Decedent was the sole
20 proximate cause of the injuries and damages complained of by Plaintiffs, if any there were.
21 SIXTH AFFIRMATIVE DEFENSE
22 Defendant alleges that decedent BILLY JOE McCLARY assumed the risk of the matters
23 referred to in said complaint, that Decedent knew and appreciated the nature of the risk, and that
24 Decedent voluntarily accepted the risk.
25 / / /
26 / / /
27 / / /
28 / / /
5335596.1
-2-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 SEVENTH AFFIRMATIVE DEFENSE
2 Defendant is informed and believes and thereon alleges that decedent misused and abused
3 the products referred to in said complaint, and failed to follow instructions, and that such misuse,
4 abuse and failure to follow instructions on the part of Decedent proximately caused and
5 contributed to the injuries and damages complained of in said complaint, if any there were.
6 EIGHTH AFFIRMATIVE DEFENSE
7 Defendant alleges that if Decedent BILLY JOE McCLARY sustained injuries attributable
8 to the use of any product manufactured, supplied, or distributed by Defendant, which allegations
9 are expressly denied, the injuries were solely caused by and attributable to the unreasonable,
10 unforeseeable, and inappropriate purpose and improper use which was made of the product.
11 NINTH AFFIRMATIVE DEFENSE
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 Defendant alleges that if there was any negligence proximately causing the injuries or
Walsworth
13 damages sustained by Plaintiffs, if any, such negligence, if any, was solely that of the defendants,
14 persons, firms, or entities other than Defendant.
15 TENTH AFFIRMATIVE DEFENSE
16 Defendant alleges that there is no privity between Plaintiffs or decedent BILLY JOE
17 McCLARY and Defendant.
18 ELEVENTH AFFIRMATIVE DEFENSE
19 Defendant alleges that it gave no warranties, either express or implied, to Decedent BILLY
20 JOE McCLARY and that neither Decedent nor others ever notified Defendant of any claims of
21 breach of warranty, if any there were.
22 TWELFTH AFFIRMATIVE DEFENSE
23 Defendant alleges that said complaint and each cause of action therein is barred with
24 respect to this answering defendant by the provisions of the Workers’ Compensation Act,
25 including but not limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of
26 California.
27 / / /
28 / / /
5335596.1
-3-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 Defendant alleges that if there was any negligence proximately causing the injuries or
3 damages, if any, sustained by Decedent, such negligence, if any, is collateral negligence, as that
4 term is used and defined in Restatement 2d Torts, Section 426 and derivative authority.
5 FOURTEENTH AFFIRMATIVE DEFENSE
6 Defendant alleges that at the time of the matters referred to in the complaint, decedent
7 BILLY JOE McCLARY was employed by an employer other than Defendant and was entitled to
8 and received workers’ compensation benefits from his employer; and that if there was any
9 negligence proximately causing the injuries and damages sustained by Plaintiffs, if any, such
10 negligence, if any, was that of Decedent’s employer.
11 FIFTEENTH AFFIRMATIVE DEFENSE
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 Defendant alleges that Plaintiffs’ claims, and each of them, and this action, are preempted
Walsworth
13 by federal statutes and regulations governing work place exposure to asbestos.
14 SIXTEENTH AFFIRMATIVE DEFENSE
15 Defendant alleges that the products referred to in said complaint, if manufactured by
16 Defendant at all, were manufactured in strict compliance with United States government
17 specifications, and that the hazards associated with use of the products, if any, were known equally
18 to the government and Defendant. Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
19 SEVENTEENTH AFFIRMATIVE DEFENSE
20 Defendant alleges that to the extent said complaint purports to state a cause of action or
21 basis for recovery under Sindell v. Abbott Laboratories (1990) 26 Cal. 3d 588, it is barred by
22 Plaintiffs’ failure to join as defendants the manufacturers of a substantial share of the asbestos
23 products market, to which asbestos products decedent BILLY JOE McCLARY was allegedly
24 exposed, thereby causing the damages alleged; and, should it prove impossible to identify the
25 manufacturer of the product that allegedly injured Decedent, said purported claim or cause of
26 action is barred by the fault of Plaintiffs and their agents in making identification of the
27 manufacturer impossible.
28 / / /
5335596.1
-4-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 Defendant alleges that, to the extent said complaint purports to state a cause of action or
3 basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing
4 product, it fails to state facts sufficient to constitute a cause of action in that Plaintiffs have
5 asserted claims for relief which, if allowed, would contravene Defendant’s constitutional rights to
6 substantive due process of law, as preserved by the Fourteenth Amendment to the Constitution of
7 the United States and by Article I, Section 7 of the Constitution of the State of California.
8 NINETEENTH AFFIRMATIVE DEFENSE
9 Defendant alleges that said complaint, to the extent that it seeks exemplary or punitive
10 damages pursuant to California Civil Code Section 3294, violates Defendant’s right to procedural
11 due process under the Fourteenth Amendment of the United States Constitution, and Article I,
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 Section 7 of the Constitution of the State of California, and therefore fails to state a cause of action
Walsworth
13 upon which either punitive or exemplary damages can be awarded.
14 TWENTIETH AFFIRMATIVE DEFENSE
15 Defendant alleges that said complaint, to the extent that is seeks punitive or exemplary
16 damages pursuant to California Civil Code Section 3294, violates Defendant’s right to protection
17 from “excessive fines” as provided in the Eighth Amendment of the United States Constitution
18 and Article I, Section 17 of the Constitution of the State of California, and violates Defendant’s
19 right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United
20 States Constitution and the Constitution of the State of California, and therefore fails to state a
21 cause of action supporting the punitive or exemplary damages claimed.
22 TWENTY-FIRST AFFIRMATIVE DEFENSE
23 Defendant alleges that said complaint, and each cause of action therein, fails to state facts
24 sufficient to warrant an award of punitive or exemplary damages against Defendant.
25 ///
26 ///
27 ///
28 ///
5335596.1
-5-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 Defendant alleges that at all relevant times decedent BILLY JOE McCLARY's employers
3 were sophisticated users of asbestos-containing products, and that said employers were aware of
4 the dangers, if any, of asbestos-containing products, and that said employers’ negligence in
5 providing the products to their employees in a negligent, careless and reckless manner was a
6 superseding intervening cause of Decedent’s injuries, if any.
7 TWENTY-THIRD AFFIRMATIVE DEFENSE
8 Defendant alleges that at all relevant times decedent BILLY JOE McCLARY was a
9 sophisticated user of asbestos-containing products, that Decedent was aware, or should have been
10 aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated user
11 doctrine is a complete bar to Plaintiffs' claims against Defendant as a matter of law. Johnson v.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 American Standard, Inc. (2008) 43 Cal.4th 56.
Walsworth
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
14 Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action
15 attempted to be stated and set forth against this defendant, because the injuries and damages
16 complained of in the complaint, if any there were, arose in the course and scope of Decedent’s
17 employment by an independent contractor.
18 TWENTY-FIFTH AFFIRMATIVE DEFENSE
19 Defendant alleges that Plaintiffs are barred from recovery in that all products produced by
20 Defendant were in conformity with the existing state-of-the-art, and as a result, these products
21 were not defective in any manner.
22 TWENTY-SIXTH AFFIRMATIVE DEFENSE
23 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
24 said complaint for negligence per se are barred by California Labor Code Section 6304.5, and
25 derivative authority.
26 / / /
27 / / /
28 / / /
5335596.1
-6-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
2 Defendant alleges that Plaintiffs and/or decedent BILLY JOE McCLARY failed to
3 exercise due diligence to mitigate their losses, injuries or damages, if any, and, accordingly, the
4 amount of damages to which Plaintiffs are entitled, if any, should be reduced by the amount of
5 damages which otherwise would have been mitigated.
6 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
7 Defendant alleges that it had no knowledge, either actual or constructive, and by the
8 application of reasonable, developed human skills and foresight had no reason to know of the
9 propensities, if any, of any product allegedly manufactured, supplied, applied and/or sold by
10 Defendant to cause or contribute to the creation of medical conditions or circumstances involving
11 alleged injuries to the lungs, respiratory and cardiovascular systems, including cancer,
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 mesothelioma, or any other illness or any type whatsoever.
Walsworth
13 TWENTY-NINTH AFFIRMATIVE DEFENSE
14 Defendant alleges that the provisions of California Civil Code Section 1431.2 are
15 applicable to the Complaint and each cause of action therein.
16 THIRTIETH AFFIRMATIVE DEFENSE
17 Defendant alleges that unforeseen and unforeseeable acts and omissions by others
18 constitute a superseding, intervening cause of Plaintiffs’ injuries, if any.
19 THIRTY-FIRST AFFIRMATIVE DEFENSE
20 Defendant alleges that each of Plaintiffs’ claims, and this entire action, are preempted by
21 all applicable federal law relating to railroads, their equipment, and/or alleged injuries and
22 damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49
23 U.S.C. sections 20701 et seq.
24 THIRTY-SECOND AFFIRMATIVE DEFENSE
25 The matters alleged in said complaint are encompassed within and barred by a settlement
26 and release agreement reached by the parties, which operates as a merger and bar against any
27 further litigation on matters raised or potentially raised in connection with the settlement and
28 release.
5335596.1
-7-
3908-39.1255
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH - ASBESTOS
1 THIRTY-THIRD AFFIRMATIVE DEFENSE
2 To the extent that Plaintiffs and/or decedent BILLY JOE McCLARY have reached an
3 accord with Defendant regarding this litigation and this accord was then properly satisfied, the
4 claims, causes of action, and theories of liability asserted in said complaint are barred by the
5 doctrine of accord and satisfaction.
6 THIRTY-FOURTH AFFIRMATIVE DEFENSE
7 To the extent that Plaintiffs and/or decedent BILLY JOE McCLARY released, settled,
8 entered into an accord and satisfaction, or otherwise compromised the claims herein, said claims
Preview
1 CHARLES T. SHELDON, State Bar No. 155598 csheldon@wfbm.com 2 DEREK S. JOHNSON, State Bar No. 220988 ELECTRONICALLY djohnson@wfbm.com 3 EMILY E. ANSELMO, State Bar No. 294899 FILED Superior Court of California, eanselmo@wfbm.com County of San Francisco 4 WFBM, LLP Attorneys at Law 10/13/2020 Clerk of the Court 5 601 Montgomery Street, Ninth Floor BY: JUDITH NUNEZ San Francisco, California 94111-2612 Deputy Clerk 6 Telephone: (415) 781-7072 Facsimile: (415) 391-6258 7 Attorneys for Defendant 8 GENERAL ELECTRIC COMPANY 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 VALERI NISKANEN, as Successor-in- Case No. CGC-19-276813 Interest to and as Wrongful Death Heir to Walsworth 13 BILLY JOE McCLARY, Deceased; and DEFENDANT GENERAL ELECTRIC VICTORIA BLAKE, TAMLYN ORTEGON, COMPANY'S ANSWER TO THE FIRST 14 SUSAN FRENCH and STEPHEN AMENDED COMPLAINT FOR McCLARY, as Wrongful Death Heirs of SURVIVAL, WRONGFUL DEATH - 15 BILLY JOE McCLARY, Deceased, ASBESTOS 16 Plaintiffs, Action Filed: August 7, 2020 17 v. 18 GOLDEN GATE DRYWALL, et al., 19 Defendants. 20 21 Defendant GENERAL ELECTRIC COMPANY (“Defendant”) answers the unverified first 22 amended complaint for wrongful death (“complaint”) as follows: 23 Under the provisions of Code of Civil Procedure Section 431.30, Defendant denies each 24 and every and all of the allegations of said complaint and denies that Plaintiffs sustained damages 25 in the sum or sums alleged, or in any other sum, or at all. 26 / / / 27 / / / 28 / / / 5335596.1 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 FIRST AFFIRMATIVE DEFENSE 2 Defendant alleges that said complaint and each cause of action therein fails to state facts 3 sufficient to constitute a cause of action against Defendant. 4 SECOND AFFIRMATIVE DEFENSE 5 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in 6 said complaint are barred by the applicable statutes of limitations, including, but not limited to, the 7 provisions of Code of Civil Procedure sections 335.1, 338, 340.2 and 361. 8 THIRD AFFIRMATIVE DEFENSE 9 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in 10 said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and 11 laches. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 FOURTH AFFIRMATIVE DEFENSE Walsworth 13 Defendant alleges that Plaintiffs’ decedent BILLY JOE McCLARY (“Decedent”) and 14 others were negligent or otherwise at fault in and about the matters referred to in said complaint, 15 and that such negligence and/or other fault bars or diminishes Plaintiffs’ recovery against 16 Defendant. 17 FIFTH AFFIRMATIVE DEFENSE 18 Defendant alleges that decedent BILLY JOE McCLARY was solely negligent in and about 19 the matters alleged in said complaint and that such negligence on the part of Decedent was the sole 20 proximate cause of the injuries and damages complained of by Plaintiffs, if any there were. 21 SIXTH AFFIRMATIVE DEFENSE 22 Defendant alleges that decedent BILLY JOE McCLARY assumed the risk of the matters 23 referred to in said complaint, that Decedent knew and appreciated the nature of the risk, and that 24 Decedent voluntarily accepted the risk. 25 / / / 26 / / / 27 / / / 28 / / / 5335596.1 -2- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 SEVENTH AFFIRMATIVE DEFENSE 2 Defendant is informed and believes and thereon alleges that decedent misused and abused 3 the products referred to in said complaint, and failed to follow instructions, and that such misuse, 4 abuse and failure to follow instructions on the part of Decedent proximately caused and 5 contributed to the injuries and damages complained of in said complaint, if any there were. 6 EIGHTH AFFIRMATIVE DEFENSE 7 Defendant alleges that if Decedent BILLY JOE McCLARY sustained injuries attributable 8 to the use of any product manufactured, supplied, or distributed by Defendant, which allegations 9 are expressly denied, the injuries were solely caused by and attributable to the unreasonable, 10 unforeseeable, and inappropriate purpose and improper use which was made of the product. 11 NINTH AFFIRMATIVE DEFENSE SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 Defendant alleges that if there was any negligence proximately causing the injuries or Walsworth 13 damages sustained by Plaintiffs, if any, such negligence, if any, was solely that of the defendants, 14 persons, firms, or entities other than Defendant. 15 TENTH AFFIRMATIVE DEFENSE 16 Defendant alleges that there is no privity between Plaintiffs or decedent BILLY JOE 17 McCLARY and Defendant. 18 ELEVENTH AFFIRMATIVE DEFENSE 19 Defendant alleges that it gave no warranties, either express or implied, to Decedent BILLY 20 JOE McCLARY and that neither Decedent nor others ever notified Defendant of any claims of 21 breach of warranty, if any there were. 22 TWELFTH AFFIRMATIVE DEFENSE 23 Defendant alleges that said complaint and each cause of action therein is barred with 24 respect to this answering defendant by the provisions of the Workers’ Compensation Act, 25 including but not limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of 26 California. 27 / / / 28 / / / 5335596.1 -3- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 Defendant alleges that if there was any negligence proximately causing the injuries or 3 damages, if any, sustained by Decedent, such negligence, if any, is collateral negligence, as that 4 term is used and defined in Restatement 2d Torts, Section 426 and derivative authority. 5 FOURTEENTH AFFIRMATIVE DEFENSE 6 Defendant alleges that at the time of the matters referred to in the complaint, decedent 7 BILLY JOE McCLARY was employed by an employer other than Defendant and was entitled to 8 and received workers’ compensation benefits from his employer; and that if there was any 9 negligence proximately causing the injuries and damages sustained by Plaintiffs, if any, such 10 negligence, if any, was that of Decedent’s employer. 11 FIFTEENTH AFFIRMATIVE DEFENSE SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 Defendant alleges that Plaintiffs’ claims, and each of them, and this action, are preempted Walsworth 13 by federal statutes and regulations governing work place exposure to asbestos. 14 SIXTEENTH AFFIRMATIVE DEFENSE 15 Defendant alleges that the products referred to in said complaint, if manufactured by 16 Defendant at all, were manufactured in strict compliance with United States government 17 specifications, and that the hazards associated with use of the products, if any, were known equally 18 to the government and Defendant. Boyle v. United Technologies Corp., 487 U.S. 500 (1988). 19 SEVENTEENTH AFFIRMATIVE DEFENSE 20 Defendant alleges that to the extent said complaint purports to state a cause of action or 21 basis for recovery under Sindell v. Abbott Laboratories (1990) 26 Cal. 3d 588, it is barred by 22 Plaintiffs’ failure to join as defendants the manufacturers of a substantial share of the asbestos 23 products market, to which asbestos products decedent BILLY JOE McCLARY was allegedly 24 exposed, thereby causing the damages alleged; and, should it prove impossible to identify the 25 manufacturer of the product that allegedly injured Decedent, said purported claim or cause of 26 action is barred by the fault of Plaintiffs and their agents in making identification of the 27 manufacturer impossible. 28 / / / 5335596.1 -4- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 Defendant alleges that, to the extent said complaint purports to state a cause of action or 3 basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing 4 product, it fails to state facts sufficient to constitute a cause of action in that Plaintiffs have 5 asserted claims for relief which, if allowed, would contravene Defendant’s constitutional rights to 6 substantive due process of law, as preserved by the Fourteenth Amendment to the Constitution of 7 the United States and by Article I, Section 7 of the Constitution of the State of California. 8 NINETEENTH AFFIRMATIVE DEFENSE 9 Defendant alleges that said complaint, to the extent that it seeks exemplary or punitive 10 damages pursuant to California Civil Code Section 3294, violates Defendant’s right to procedural 11 due process under the Fourteenth Amendment of the United States Constitution, and Article I, SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 Section 7 of the Constitution of the State of California, and therefore fails to state a cause of action Walsworth 13 upon which either punitive or exemplary damages can be awarded. 14 TWENTIETH AFFIRMATIVE DEFENSE 15 Defendant alleges that said complaint, to the extent that is seeks punitive or exemplary 16 damages pursuant to California Civil Code Section 3294, violates Defendant’s right to protection 17 from “excessive fines” as provided in the Eighth Amendment of the United States Constitution 18 and Article I, Section 17 of the Constitution of the State of California, and violates Defendant’s 19 right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United 20 States Constitution and the Constitution of the State of California, and therefore fails to state a 21 cause of action supporting the punitive or exemplary damages claimed. 22 TWENTY-FIRST AFFIRMATIVE DEFENSE 23 Defendant alleges that said complaint, and each cause of action therein, fails to state facts 24 sufficient to warrant an award of punitive or exemplary damages against Defendant. 25 /// 26 /// 27 /// 28 /// 5335596.1 -5- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 Defendant alleges that at all relevant times decedent BILLY JOE McCLARY's employers 3 were sophisticated users of asbestos-containing products, and that said employers were aware of 4 the dangers, if any, of asbestos-containing products, and that said employers’ negligence in 5 providing the products to their employees in a negligent, careless and reckless manner was a 6 superseding intervening cause of Decedent’s injuries, if any. 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 8 Defendant alleges that at all relevant times decedent BILLY JOE McCLARY was a 9 sophisticated user of asbestos-containing products, that Decedent was aware, or should have been 10 aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated user 11 doctrine is a complete bar to Plaintiffs' claims against Defendant as a matter of law. Johnson v. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 American Standard, Inc. (2008) 43 Cal.4th 56. Walsworth 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 14 Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action 15 attempted to be stated and set forth against this defendant, because the injuries and damages 16 complained of in the complaint, if any there were, arose in the course and scope of Decedent’s 17 employment by an independent contractor. 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 19 Defendant alleges that Plaintiffs are barred from recovery in that all products produced by 20 Defendant were in conformity with the existing state-of-the-art, and as a result, these products 21 were not defective in any manner. 22 TWENTY-SIXTH AFFIRMATIVE DEFENSE 23 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in 24 said complaint for negligence per se are barred by California Labor Code Section 6304.5, and 25 derivative authority. 26 / / / 27 / / / 28 / / / 5335596.1 -6- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 Defendant alleges that Plaintiffs and/or decedent BILLY JOE McCLARY failed to 3 exercise due diligence to mitigate their losses, injuries or damages, if any, and, accordingly, the 4 amount of damages to which Plaintiffs are entitled, if any, should be reduced by the amount of 5 damages which otherwise would have been mitigated. 6 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 7 Defendant alleges that it had no knowledge, either actual or constructive, and by the 8 application of reasonable, developed human skills and foresight had no reason to know of the 9 propensities, if any, of any product allegedly manufactured, supplied, applied and/or sold by 10 Defendant to cause or contribute to the creation of medical conditions or circumstances involving 11 alleged injuries to the lungs, respiratory and cardiovascular systems, including cancer, SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 mesothelioma, or any other illness or any type whatsoever. Walsworth 13 TWENTY-NINTH AFFIRMATIVE DEFENSE 14 Defendant alleges that the provisions of California Civil Code Section 1431.2 are 15 applicable to the Complaint and each cause of action therein. 16 THIRTIETH AFFIRMATIVE DEFENSE 17 Defendant alleges that unforeseen and unforeseeable acts and omissions by others 18 constitute a superseding, intervening cause of Plaintiffs’ injuries, if any. 19 THIRTY-FIRST AFFIRMATIVE DEFENSE 20 Defendant alleges that each of Plaintiffs’ claims, and this entire action, are preempted by 21 all applicable federal law relating to railroads, their equipment, and/or alleged injuries and 22 damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49 23 U.S.C. sections 20701 et seq. 24 THIRTY-SECOND AFFIRMATIVE DEFENSE 25 The matters alleged in said complaint are encompassed within and barred by a settlement 26 and release agreement reached by the parties, which operates as a merger and bar against any 27 further litigation on matters raised or potentially raised in connection with the settlement and 28 release. 5335596.1 -7- 3908-39.1255 DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO THE FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 THIRTY-THIRD AFFIRMATIVE DEFENSE 2 To the extent that Plaintiffs and/or decedent BILLY JOE McCLARY have reached an 3 accord with Defendant regarding this litigation and this accord was then properly satisfied, the 4 claims, causes of action, and theories of liability asserted in said complaint are barred by the 5 doctrine of accord and satisfaction. 6 THIRTY-FOURTH AFFIRMATIVE DEFENSE 7 To the extent that Plaintiffs and/or decedent BILLY JOE McCLARY released, settled, 8 entered into an accord and satisfaction, or otherwise compromised the claims herein, said claims