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1 MORDECAI D. BOONE (Bar No. 196811)
mordecai.boone@dentons.com
2 STEPHANIE PEATMAN (Bar No. 299577) ELECTRONICALLY
stephanie.peatman@dentons.com
3 SAMANTHA FAHR (Bar No. 299409) FILED
Superior Court of California,
samantha.fahr@dentons.com County of San Francisco
4 DENTONS US LLP
Spear Tower 09/04/2020
5 One Market Plaza, 24th Floor Clerk of the Court
BY: BOWMAN LIU
San Francisco, California 94105 Deputy Clerk
6 Telephone: (415) 267-4000
Facsimile: (415) 267-4198
7
Attorneys for Defendant
8 3M COMPANY
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR
10 COUNTY OF SAN FRANCISCO
SAN FRANCISCO, CALIFORNIA 94105
11
DENTONS US LLP
12 VALERI NISKANEN, as Successor-in- CASE NO. CGC-19-276813
(415) 267-4000
Interest and as Wrongful Death Heir of BILLY
13 JOE McCLARY, Deceased; and VICTORIA ANSWER OF DEFENDANT 3M COMPANY TO
BLAKE, TAMLYN ORTEGON, SUSAN PLAINTIFFS' FIRST AMENDED COMPLAINT
14 FRENCH and STEVEN McCLARY, as FOR WRONGFUL DEATH
Wrongful Death Heirs of BILLY JOE
15 McCLARY, Deceased,
16 Plaintiffs, Complaint Filed: 12/11/19
FAC Filed: 8/6/2020
17 v. Trial Date: None
18 GOLDEN GATE DRYWALL, et al.,
19 Defendants.
20
21 COMES NOW defendant, 3M COMPANY (“3M”), and in response to Plaintiffs' First
22 Amended Complaint for Wrongful Death (“Complaint”), and each and every cause of action
23 allegedly set forth therein, answers, alleges, and denies as follows:
24 3M denies, generally and specifically, each and every allegation contained in the
25 Complaint, and each and every cause of action allegedly set forth therein, as they may apply to
26 3M.
27 Further answering the Complaint, and each and every cause of action allegedly set forth
28 therein, 3M denies that it was legally responsible in any respect whatsoever for the circumstances
ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 and happenings, as alleged therein, or at all, and denies that it was negligent and/or careless in any
2 respect whatsoever, as alleged therein, or at all, and denies that Plaintiffs have been damaged in
3 the manner set forth in the Complaint and each and every cause of action allegedly set forth
4 therein.
5 FIRST AFFIRMATIVE DEFENSE
6 FOR A FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
7 COMPLAINT, Plaintiffs are barred from recovery because 3M owed no duty to Plaintiffs and/or
8 decedent.
9 SECOND AFFIRMATIVE DEFENSE
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10 FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
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11 COMPLAINT, Plaintiffs' Complaint and causes of action therein fail to state facts sufficient to
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12 constitute a cause of action against 3M.
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13 THIRD AFFIRMATIVE DEFENSE
14 FOR A THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
15 COMPLAINT, if defendant has purportedly been named or served in this action as a Doe
16 defendant, such effort by Plaintiffs is invalid on the ground that Plaintiffs or Plaintiffs' agents
17 knew or should have known of the identify of 3M and the Plaintiffs' causes of action against 3M at
18 the time of the filing of the Complaint.
19 FOURTH AFFIRMATIVE DEFENSE
20 FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
21 COMPLAINT, Plaintiffs' causes of action against 3M are barred by the exclusivity of the
22 California workers' compensation laws, including, but not limited to, California Labor Code
23 section 3600, et seq. To that extent, any amounts recovered in this action are subject to a claim by
24 3M for a credit or offset of any monies recovered to date or in the future in connection with any
25 claim for workers' compensation benefits.
26 FIFTH AFFIRMATIVE DEFENSE
27 FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
28 COMPLAINT, Plaintiffs' claims are a nullity for failure of commencement of suit.
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 SIXTH AFFIRMATIVE DEFENSE
2 FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
3 COMPLAINT, Plaintiffs failed to join a party or the parties necessary and/or indispensable for a
4 just adjudication of this matter and have further omitted to state any reasons for such failure.
5 SEVENTH AFFIRMATIVE DEFENSE
6 FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
7 COMPLAINT, Plaintiffs' Complaint and the causes of action therein are barred by the statutes of
8 limitation and repose of California and any other relevant state, including but not limited to the
9 limitations set forth in sections 335.1, 338, 340.2(a)(1), 340.2(a)(2), 340.2(c)(1), 340.2(c)(2), 361,
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10 and 366.1 of the California Code of Civil Procedure.
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11 EIGHTH AFFIRMATIVE DEFENSE
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12 FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
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13 COMPLAINT, Plaintiffs unreasonably delayed in bringing this action against 3M and such delay
14 substantially prejudiced 3M. Therefore, this action is barred by the doctrine of laches.
15 NINTH AFFIRMATIVE DEFENSE
16 FOR A NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
17 COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs and/or decedent
18 failed to make reasonable efforts to mitigate injuries and damages, if any there were.
19 TENTH AFFIRMATIVE DEFENSE
20 FOR AN TENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
21 COMPLAINT, Plaintiffs and/or decedent acknowledged, ratified, consented to, and acquiesced in
22 the alleged acts or omissions, if any there were, of 3M, thus barring Plaintiffs from any relief as
23 prayed for in the Complaint.
24 ELEVENTH AFFIRMATIVE DEFENSE
25 FOR A ELEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
26 COMPLAINT, Plaintiffs and/or decedent released, settled, entered into an accord and satisfaction,
27 or otherwise compromised their claims, and accordingly, their claims are barred by operation of
28
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 law; alternatively, Plaintiffs and/or decedent accepted compensation as partial settlement of their
2 claims for which 3M is entitled to a set-off.
3 TWELFTH AFFIRMATIVE DEFENSE
4 FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
5 COMPLAINT, Plaintiffs' claims are preempted in whole or in part by federal and/or state statutes
6 and/or regulations, including but not limited to OSHA and Cal-OSHA, and other applicable
7 standards relating to asbestos.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
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10 UNVERIFIED COMPLAINT, 3M is informed and believes that any injuries, damages and/or loss
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11 Plaintiffs and/or decedent may have sustained were a direct, proximate and sole result of Plaintiffs'
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12 and/or decedent’s physical conditions on, prior to, and/or after the events Plaintiffs set forth in the
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13 Complaint.
14 FOURTEENTH AFFIRMATIVE DEFENSE
15 FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
16 UNVERIFIED COMPLAINT, Plaintiffs and/or decedent themselves were careless and negligent
17 in and about the matters referred to in the Complaint and such negligence and carelessness on the
18 part of Plaintiffs and/or decedent proximately caused and contributed to the damages complained
19 of, if any there were.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
22 COMPLAINT, Plaintiffs and/or decedent knew or, in the exercise of ordinary care, should have
23 known of the risks and hazards involved in the undertakings in which they were engaged, as set
24 forth in the Complaint. The risk of exposure to asbestos-containing products was inherent in
25 decedent's trade and work. With full knowledge of these things, and under the doctrine of primary
26 assumption of risk, Plaintiffs may not recover for harm caused by such inherent risk and/or risks
27 and hazards to which Plaintiffs and/or decedent fully and voluntarily consented.
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 SIXTEENTH AFFIRMATIVE DEFENSE
2 FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
3 COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs, decedent, and/or
4 other persons without 3M's knowledge or approval redesigned, modified, altered, and used 3M's
5 products contrary to instructions and contrary to the custom and practice of the industry. This
6 redesign, modification, alteration, and use so substantially changed the products' character that if
7 there was a defect in the products -- which is specifically denied -- such defect resulted solely
8 from the redesign, modification, alteration, or other such treatment or change and not from any act
9 or omission by 3M. Therefore, said defect, if any, was created by Plaintiffs, decedent, and/or
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10 other persons, as the case may be, and was the direct and proximate cause of Plaintiffs' and/or
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11 decedent’s alleged injuries and damages.
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12
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SEVENTEENTH AFFIRMATIVE DEFENSE
13 FOR AN SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
14 UNVERIFIED COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs,
15 decedent, and/or other persons used 3M's products, if any were used, in an unreasonable manner,
16 not reasonably foreseeable to 3M, and for a purpose for which the products were not intended,
17 manufactured, or designed. Plaintiffs' and/or decedent’s claimed injuries and damages were
18 therefore directly and proximately caused by their misuse and abuse of such products.
19 EIGHTEENTH AFFIRMATIVE DEFENSE
20 FOR A EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
21 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers were contributorily
22 negligent and careless in and about the matters alleged in the Complaint, and such negligence and
23 carelessness were a proximate cause of all injuries and damages Plaintiffs and/or decedent
24 allegedly suffered.
25 NINETEENTH AFFIRMATIVE DEFENSE
26 FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
27 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers voluntarily and knowingly
28 entered into and engaged in the operations, acts, and conduct alleged in the Complaint, and
5
ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 voluntarily and knowingly assumed all of the risks incident to said operations, acts, and conduct
2 alleged in the Complaint, and voluntarily and knowingly assumed all of the risks incident to said
3 operations, acts, and conduct at the times and places mentioned in the Complaint.
4 TWENTIETH AFFIRMATIVE DEFENSE
5 FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID
6 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers were knowledgeable users
7 of any products allegedly manufactured and supplied by 3M and any duty to warn and/or advise
8 Plaintiffs and/or decedent regarding the use of 3M’s products, if any, and which duty 3M
9 specifically denies, was superseded and/or discharged by the duty of Plaintiffs' and/or decedent’s
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10 employers to do so.
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11 TWENTY-FIRST AFFIRMATIVE DEFENSE
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12 FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
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13 UNVERIFIED COMPLAINT, 3M is informed and believes that at the time of Plaintiffs' and/or
14 decedent’s injuries, Decedent was employed and was therefore entitled to and did receive workers’
15 compensation benefits from his employers. Decedent’s employers and/or the premises owners of
16 the locations where he worked violated provisions of the Occupational Safety and Health Act of
17 1970, and the regulations developed and adopted pursuant thereto, and those violations were the
18 sole proximate cause of Decedent’s alleged injuries. Additionally, any damages Plaintiffs and/or
19 decedent allege they sustained were the direct and proximate result of the negligent and/or
20 intentional conduct of Decedent’s employers and/or labor union(s) and/or owners of the premises
21 and/or other persons and/or entities, in failing to properly educate, train and supervise Decedent,
22 and in failing to provide them with a reasonably safe place to work, for which 3M is neither
23 responsible nor liable. Further, Decedent’s employers assumed the risk of injury to Plaintiffs
24 and/or decedent in that at the times and places of the subject incidents, the conditions were open
25 and apparent, and were fully known to Decedent’s employers. 3M is thus entitled to a set-off of
26 any workers’ compensation benefits that Plaintiffs and/or decedent received or will receive,
27 against any judgment that may be rendered in Plaintiffs' favor.
28
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID
3 UNVERIFIED COMPLAINT, 3M is not liable for any injuries alleged in the Complaint because
4 the products allegedly manufactured and supplied by 3M were done so in accord with all
5 government regulations and specifications and 3M’s conduct falls within the purview and
6 protection of the government contractor defense.
7 TWENTY-THIRD AFFIRMATIVE DEFENSE
8 FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID
9 UNVERIFIED COMPLAINT, if there is any negligence or liability of any of the parties named
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10 herein, it is the sole and exclusive negligence and liability of the other parties, and not of 3M.
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11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
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12 FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID
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13 UNVERIFIED COMPLAINT, in the event parties were not reasonably and adequately warned of
14 potential dangers concerning misuse of the products at issue, the duty to provide the warnings was
15 that of some other person and/or entity, for which 3M is neither responsible nor liable.
16 TWENTY-FIFTH AFFIRMATIVE DEFENSE
17 FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
18 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s injuries or illnesses, if any there were,
19 were due to the acts or omissions of a person or persons over whom 3M had neither control nor
20 the right of control.
21 TWENTY-SIXTH AFFIRMATIVE DEFENSE
22 FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID
23 UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been
24 involved in the subject incidents, it will also be found that 3M sold the product to some other
25 person and/or entity with all appropriate information and documents about the product, and that
26 3M reasonably relied upon this “sophisticated user” and/or learned intermediary to communicate
27 these materials to the ultimate users of the product, including Plaintiffs and/or decedent.
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
2 FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
3 UNVERIFIED COMPLAINT, 3M alleges that Plaintiffs, decedent, and/or Plaintiffs' and/or
4 decedent’s employer(s) were and are sophisticated user(s) and/or learned intermediaries and knew
5 independently or should have known of any danger or hazard associated with the use of asbestos,
6 the use of a product containing asbestos, and exposure to high levels of dust of any sort. 3M
7 further alleges that it gave all parties reasonably appropriate information concerning the use of the
8 product and warned Plaintiffs' and/or decedent’s employer(s) of the danger or hazard, if any,
9 associated with the use of its product and that Plaintiffs, decedent and/or Plaintiffs' employer(s)
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10 failed to rely upon such information and warning, resulting in alleged damages due to Plaintiffs,
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11 decedent, and/or Plaintiffs' and/or decedent’s employers’ act or omission and failure to act as
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12 sophisticated users.
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13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14 FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID
15 UNVERIFIED COMPLAINT, while specifically and vigorously denying Plaintiffs' allegations
16 concerning liability, injuries, and damages, to the extent that Plaintiff may be able to prove those
17 allegations, 3M states that they were the result of intervening acts of superseding negligence on
18 the part of a person or persons over whom 3M had neither control nor the right of control.
19 TWENTY-NINTH AFFIRMATIVE DEFENSE
20 FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID
21 UNVERIFIED COMPLAINT, Plaintiffs are barred from recovering for breach of warranty
22 because Plaintiffs were not in privity with 3M and, even if Plaintiffs were in privity, 3M has
23 disclaimed all applicable warranties.
24 THIRTIETH AFFIRMATIVE DEFENSE
25 FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
26 COMPLAINT, Plaintiffs are barred from recovery for alleged breaches of warranty by section
27 2607 of the California Uniform Commercial Code.
28
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 THIRTY-FIRST AFFIRMATIVE DEFENSE
2 FOR A THIRTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
3 UNVERIFIED COMPLAINT, Plaintiffs and/or decedent have waived any and all claims sought in
4 this action and are estopped both to assert and to recover upon such claims.
5 THIRTY-SECOND AFFIRMATIVE DEFENSE
6 FOR A THIRTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID
7 UNVERIFIED COMPLAINT, any exposure of Plaintiffs and/or decedent to and/or use of 3M's
8 products, which exposure and/or use is vigorously denied, was so minimal as to be insufficient to
9 establish a reasonable degree of probability that the products caused Plaintiffs' and/or decedent’s
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10 claimed injuries and illnesses. Accordingly, Plaintiffs are barred from recovery against 3M
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11 because there is no causal connection between any conduct of 3M and any alleged loss or damage
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12 that Plaintiffs contend the and/or decedent sustained.
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13 THIRTY-THIRD AFFIRMATIVE DEFENSE
14 FOR A THIRTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID
15 UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been
16 involved in the subject incidents, it will also be found that the product was, at all relevant times,
17 safe for normal usage in the manner for which it was intended, the benefits of its design
18 outweighed any foreseeable risks, and the product was not defective.
19 THIRTY-FOURTH AFFIRMATIVE DEFENSE
20 FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID
21 UNVERIFIED COMPLAINT, should Plaintiffs prevail against 3M, 3M's liability is several and is
22 limited to its own actionable segment of fault, which fault is vigorously denied.
23 THIRTY-FIFTH AFFIRMATIVE DEFENSE
24 FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
25 UNVERIFIED COMPLAINT, Plaintiffs' claims of successor liability, alter-ego, and association
26 with other entities, are neither factually nor legally supported, and, as such, Plaintiffs have no
27 claim against 3M, as asserted. To the extent any claim for relief in the Complaint seeks to recover
28 damages against 3M for alleged acts or omissions of alter-egos, alternate entities, predecessors, or
9
ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 successors-in-interest to 3M of any kind or description, 3M is not legally responsible and cannot
2 legally be held liable for any such acts or omissions. Further, the conduct of any alter-ego,
3 alternate entity, predecessor, or successor-in-interest cannot, as a matter of law, provide a legal
4 basis for liability or the imposition of damages against 3M.
5 THIRTY-SIXTH AFFIRMATIVE DEFENSE
6 FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID
7 UNVERIFIED COMPLAINT, Plaintiffs' causes of action fail to state a claim upon which relief
8 can be granted, for if relief is granted, such relief would constitute a taking of 3M’s property for a
9 public use without just compensation, a violation of 3M’s Constitutional rights.
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10 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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11 FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
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12 UNVERIFIED COMPLAINT, Plaintiffs' punitive damages claims impermissibly seek a multiple
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13 award and/or are unconstitutionally excessive under the Contracts Clause of Article I, section 10
14 of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the
15 United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United
16 States Constitution and its counterpart under the California Constitution; the Equal Protection of
17 the laws and Due Process provisions of the Fifth and Fourteenth Amendments of the United States
18 Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of the
19 laws and 3M's right to be free of Cruel and Unusual Punishment and Excessive Fines as
20 guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution
21 and Article I, section 7 and 17, Article IV, and section 16 of the California Constitution.
22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
23 FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID
24 UNVERIFIED COMPLAINT, 3M alleges that the causes of action asserted by Plaintiffs fail to
25 state a claim upon which relief can be granted, or, if relief be granted, 3M's Constitutional right to
26 substantive and procedural due process of law would be contravened.
27
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 THIRTY-NINTH AFFIRMATIVE DEFENSE
2 FOR A THIRTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID
3 UNVERIFIED COMPLAINT, 3M alleges that the causes of action asserted by Plaintiffs fail to
4 state a claim upon which relief can be granted because such relief would constitute a denial of
5 3M's Constitutional right to equal protection under the law.
6 FORTIETH AFFIRMATIVE DEFENSE
7 FOR A FORTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
8 COMPLAINT, 3M alleges that it is not responsible for the product line or items that Plaintiffs
9 claim that it manufactured, distributed, or sold. Rather, 3M asserts that another entity or entities
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10 manufactured, distributed, and sold this product line and is legally responsible therefor.
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11 FORTY-FIRST AFFIRMATIVE DEFENSE
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12 FOR A FORTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
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13 UNVERIFIED COMPLAINT, 3M alleges that the subject premises was not used in the manner in
14 which it was intended to be used, and as a proximate result of such abuse and misuse, decedent
15 sustained injuries and damages complained of, if any there were.
16 FORTY-SECOND AFFIRMATIVE DEFENSE
17 FOR A FORTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID
18 UNVERIFIED COMPLAINT, alleges that plaintiffs' action is barred by the choice-of-law
19 doctrine and/or the provisions of California Code of Civil Procedure Section 361 in that an action
20 cannot be maintained against this answering defendant by the laws of another state or foreign
21 country, including but not limited to the applicable statute of limitations or statute of repose of that
22 jurisdiction.
23 FORTY-THIRD AFFIRMATIVE DEFENSE
24 FOR A FORTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID
25 UNVERIFIED COMPLAINT, alleges pursuant to the equitable doctrine of forum non conveniens
26 and California Code of Civil Procedure section 410.30, California is an improper forum of this
27 action because in the interests of fairness and convenience, this action should be appropriately and
28 justly tried in a forum outside California.
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 FORTY-FOURTH AFFIRMATIVE DEFENSE
2 FOR A FORTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID
3 UNVERIFIED COMPLAINT, alleges that the County of San Francisco is an improper and/or
4 inconvenient venue for this action.
5 FORTY-FIFTH AFFIRMATIVE DEFENSE
6 FOR A FORTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
7 UNVERIFIED COMPLAINT, alleges that the instant action is barred by the rule against splitting
8 a cause of action.
9 FORTY-SIXTH AFFIRMATIVE DEFENSE
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10 FOR A FORTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID
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11 UNVERIFIED COMPLAINT, alleges that another action is pending between the same parties on
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12 the same causes of action.
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13 FORTY-SEVENTH AFFIRMATIVE DEFENSE
14 FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
15 UNVERIFIED COMPLAINT, alleges that Plaintiffs herein lack legal capacity and standing to sue
16 and are not real parties in interest and are thereby precluded from any recovery whatsoever as
17 prayed for herein.
18 FORTY-EIGHTH AFFIRMATIVE DEFENSE
19 FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID
20 UNVERIFIED COMPLAINT, alleges that Plaintiffs have failed to properly identify a premises
21 over which 3M allegedly had control or responsibility or that it did not retain control or
22 responsibility of the subject premises.
23 FORTY-NINTH AFFIRMATIVE DEFENSE
24 FOR A FORTH-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID
25 UNVERIFIED COMPLAINT, alleges that the Complaint, and each and every survival cause of
26 action therein, is barred as the Decedent’s successor-in-interest or personal representative has
27 failed to execute and file an affidavit or a declaration as required by Code of Civil Procedure
28 section 377.32.
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ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH
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1 FIFTIETH AFFIRMATIVE DEFENSE
2 FOR A FIFTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED
3 COMPLAINT, alleges to the extent the Complaint, or any cause of action alleged therein, is based
4 upon an allegation of strict products liability as against this answering defendant, said cause of
5 action cannot be maintained as this answering defendant was not a “seller” within the meaning of
6 Section 402A of the Restatement (Second) of Torts, and consequently any claim of strict liability
7 against this answering defendant is barred.
8 FIFTY-FIRST AFFIRMATIVE DEFENSE
9 FOR A FIFTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
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10 UNVERIFIED COMPLAINT, at all times alleged in the Complaint, the products Plaintiffs and/or
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11 decedent’s allege caused their injuries were designed, manufactured, sold, distributed, labeled, and
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12 advertised in compliance with the then existing state of the art in the industry to which 3M
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13 belonged and further; the benefits of any such product design outweighed any risk of danger in the
14 design; and any such products met the safety expectations of Plaintiffs, decedent, and the general
15 public.
16 WHEREFORE, 3M prays that Plaintiffs take nothing by his actions, that 3M be dismissed
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1 MORDECAI D. BOONE (Bar No. 196811) mordecai.boone@dentons.com 2 STEPHANIE PEATMAN (Bar No. 299577) ELECTRONICALLY stephanie.peatman@dentons.com 3 SAMANTHA FAHR (Bar No. 299409) FILED Superior Court of California, samantha.fahr@dentons.com County of San Francisco 4 DENTONS US LLP Spear Tower 09/04/2020 5 One Market Plaza, 24th Floor Clerk of the Court BY: BOWMAN LIU San Francisco, California 94105 Deputy Clerk 6 Telephone: (415) 267-4000 Facsimile: (415) 267-4198 7 Attorneys for Defendant 8 3M COMPANY 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 COUNTY OF SAN FRANCISCO SAN FRANCISCO, CALIFORNIA 94105 11 DENTONS US LLP 12 VALERI NISKANEN, as Successor-in- CASE NO. CGC-19-276813 (415) 267-4000 Interest and as Wrongful Death Heir of BILLY 13 JOE McCLARY, Deceased; and VICTORIA ANSWER OF DEFENDANT 3M COMPANY TO BLAKE, TAMLYN ORTEGON, SUSAN PLAINTIFFS' FIRST AMENDED COMPLAINT 14 FRENCH and STEVEN McCLARY, as FOR WRONGFUL DEATH Wrongful Death Heirs of BILLY JOE 15 McCLARY, Deceased, 16 Plaintiffs, Complaint Filed: 12/11/19 FAC Filed: 8/6/2020 17 v. Trial Date: None 18 GOLDEN GATE DRYWALL, et al., 19 Defendants. 20 21 COMES NOW defendant, 3M COMPANY (“3M”), and in response to Plaintiffs' First 22 Amended Complaint for Wrongful Death (“Complaint”), and each and every cause of action 23 allegedly set forth therein, answers, alleges, and denies as follows: 24 3M denies, generally and specifically, each and every allegation contained in the 25 Complaint, and each and every cause of action allegedly set forth therein, as they may apply to 26 3M. 27 Further answering the Complaint, and each and every cause of action allegedly set forth 28 therein, 3M denies that it was legally responsible in any respect whatsoever for the circumstances ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 and happenings, as alleged therein, or at all, and denies that it was negligent and/or careless in any 2 respect whatsoever, as alleged therein, or at all, and denies that Plaintiffs have been damaged in 3 the manner set forth in the Complaint and each and every cause of action allegedly set forth 4 therein. 5 FIRST AFFIRMATIVE DEFENSE 6 FOR A FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 7 COMPLAINT, Plaintiffs are barred from recovery because 3M owed no duty to Plaintiffs and/or 8 decedent. 9 SECOND AFFIRMATIVE DEFENSE ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED SAN FRANCISCO, CALIFORNIA 94105 11 COMPLAINT, Plaintiffs' Complaint and causes of action therein fail to state facts sufficient to DENTONS US LLP 12 constitute a cause of action against 3M. (415) 267-4000 13 THIRD AFFIRMATIVE DEFENSE 14 FOR A THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 15 COMPLAINT, if defendant has purportedly been named or served in this action as a Doe 16 defendant, such effort by Plaintiffs is invalid on the ground that Plaintiffs or Plaintiffs' agents 17 knew or should have known of the identify of 3M and the Plaintiffs' causes of action against 3M at 18 the time of the filing of the Complaint. 19 FOURTH AFFIRMATIVE DEFENSE 20 FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 21 COMPLAINT, Plaintiffs' causes of action against 3M are barred by the exclusivity of the 22 California workers' compensation laws, including, but not limited to, California Labor Code 23 section 3600, et seq. To that extent, any amounts recovered in this action are subject to a claim by 24 3M for a credit or offset of any monies recovered to date or in the future in connection with any 25 claim for workers' compensation benefits. 26 FIFTH AFFIRMATIVE DEFENSE 27 FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 28 COMPLAINT, Plaintiffs' claims are a nullity for failure of commencement of suit. 2 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 SIXTH AFFIRMATIVE DEFENSE 2 FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 3 COMPLAINT, Plaintiffs failed to join a party or the parties necessary and/or indispensable for a 4 just adjudication of this matter and have further omitted to state any reasons for such failure. 5 SEVENTH AFFIRMATIVE DEFENSE 6 FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 7 COMPLAINT, Plaintiffs' Complaint and the causes of action therein are barred by the statutes of 8 limitation and repose of California and any other relevant state, including but not limited to the 9 limitations set forth in sections 335.1, 338, 340.2(a)(1), 340.2(a)(2), 340.2(c)(1), 340.2(c)(2), 361, ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 and 366.1 of the California Code of Civil Procedure. SAN FRANCISCO, CALIFORNIA 94105 11 EIGHTH AFFIRMATIVE DEFENSE DENTONS US LLP 12 FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED (415) 267-4000 13 COMPLAINT, Plaintiffs unreasonably delayed in bringing this action against 3M and such delay 14 substantially prejudiced 3M. Therefore, this action is barred by the doctrine of laches. 15 NINTH AFFIRMATIVE DEFENSE 16 FOR A NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 17 COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs and/or decedent 18 failed to make reasonable efforts to mitigate injuries and damages, if any there were. 19 TENTH AFFIRMATIVE DEFENSE 20 FOR AN TENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 21 COMPLAINT, Plaintiffs and/or decedent acknowledged, ratified, consented to, and acquiesced in 22 the alleged acts or omissions, if any there were, of 3M, thus barring Plaintiffs from any relief as 23 prayed for in the Complaint. 24 ELEVENTH AFFIRMATIVE DEFENSE 25 FOR A ELEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 26 COMPLAINT, Plaintiffs and/or decedent released, settled, entered into an accord and satisfaction, 27 or otherwise compromised their claims, and accordingly, their claims are barred by operation of 28 3 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 law; alternatively, Plaintiffs and/or decedent accepted compensation as partial settlement of their 2 claims for which 3M is entitled to a set-off. 3 TWELFTH AFFIRMATIVE DEFENSE 4 FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 5 COMPLAINT, Plaintiffs' claims are preempted in whole or in part by federal and/or state statutes 6 and/or regulations, including but not limited to OSHA and Cal-OSHA, and other applicable 7 standards relating to asbestos. 8 THIRTEENTH AFFIRMATIVE DEFENSE 9 FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 UNVERIFIED COMPLAINT, 3M is informed and believes that any injuries, damages and/or loss SAN FRANCISCO, CALIFORNIA 94105 11 Plaintiffs and/or decedent may have sustained were a direct, proximate and sole result of Plaintiffs' DENTONS US LLP 12 and/or decedent’s physical conditions on, prior to, and/or after the events Plaintiffs set forth in the (415) 267-4000 13 Complaint. 14 FOURTEENTH AFFIRMATIVE DEFENSE 15 FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 16 UNVERIFIED COMPLAINT, Plaintiffs and/or decedent themselves were careless and negligent 17 in and about the matters referred to in the Complaint and such negligence and carelessness on the 18 part of Plaintiffs and/or decedent proximately caused and contributed to the damages complained 19 of, if any there were. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 22 COMPLAINT, Plaintiffs and/or decedent knew or, in the exercise of ordinary care, should have 23 known of the risks and hazards involved in the undertakings in which they were engaged, as set 24 forth in the Complaint. The risk of exposure to asbestos-containing products was inherent in 25 decedent's trade and work. With full knowledge of these things, and under the doctrine of primary 26 assumption of risk, Plaintiffs may not recover for harm caused by such inherent risk and/or risks 27 and hazards to which Plaintiffs and/or decedent fully and voluntarily consented. 28 4 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 3 COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs, decedent, and/or 4 other persons without 3M's knowledge or approval redesigned, modified, altered, and used 3M's 5 products contrary to instructions and contrary to the custom and practice of the industry. This 6 redesign, modification, alteration, and use so substantially changed the products' character that if 7 there was a defect in the products -- which is specifically denied -- such defect resulted solely 8 from the redesign, modification, alteration, or other such treatment or change and not from any act 9 or omission by 3M. Therefore, said defect, if any, was created by Plaintiffs, decedent, and/or ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 other persons, as the case may be, and was the direct and proximate cause of Plaintiffs' and/or SAN FRANCISCO, CALIFORNIA 94105 11 decedent’s alleged injuries and damages. DENTONS US LLP 12 (415) 267-4000 SEVENTEENTH AFFIRMATIVE DEFENSE 13 FOR AN SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 14 UNVERIFIED COMPLAINT, at all times and places mentioned in the Complaint, Plaintiffs, 15 decedent, and/or other persons used 3M's products, if any were used, in an unreasonable manner, 16 not reasonably foreseeable to 3M, and for a purpose for which the products were not intended, 17 manufactured, or designed. Plaintiffs' and/or decedent’s claimed injuries and damages were 18 therefore directly and proximately caused by their misuse and abuse of such products. 19 EIGHTEENTH AFFIRMATIVE DEFENSE 20 FOR A EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 21 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers were contributorily 22 negligent and careless in and about the matters alleged in the Complaint, and such negligence and 23 carelessness were a proximate cause of all injuries and damages Plaintiffs and/or decedent 24 allegedly suffered. 25 NINETEENTH AFFIRMATIVE DEFENSE 26 FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 27 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers voluntarily and knowingly 28 entered into and engaged in the operations, acts, and conduct alleged in the Complaint, and 5 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 voluntarily and knowingly assumed all of the risks incident to said operations, acts, and conduct 2 alleged in the Complaint, and voluntarily and knowingly assumed all of the risks incident to said 3 operations, acts, and conduct at the times and places mentioned in the Complaint. 4 TWENTIETH AFFIRMATIVE DEFENSE 5 FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID 6 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s employers were knowledgeable users 7 of any products allegedly manufactured and supplied by 3M and any duty to warn and/or advise 8 Plaintiffs and/or decedent regarding the use of 3M’s products, if any, and which duty 3M 9 specifically denies, was superseded and/or discharged by the duty of Plaintiffs' and/or decedent’s ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 employers to do so. SAN FRANCISCO, CALIFORNIA 94105 11 TWENTY-FIRST AFFIRMATIVE DEFENSE DENTONS US LLP 12 FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID (415) 267-4000 13 UNVERIFIED COMPLAINT, 3M is informed and believes that at the time of Plaintiffs' and/or 14 decedent’s injuries, Decedent was employed and was therefore entitled to and did receive workers’ 15 compensation benefits from his employers. Decedent’s employers and/or the premises owners of 16 the locations where he worked violated provisions of the Occupational Safety and Health Act of 17 1970, and the regulations developed and adopted pursuant thereto, and those violations were the 18 sole proximate cause of Decedent’s alleged injuries. Additionally, any damages Plaintiffs and/or 19 decedent allege they sustained were the direct and proximate result of the negligent and/or 20 intentional conduct of Decedent’s employers and/or labor union(s) and/or owners of the premises 21 and/or other persons and/or entities, in failing to properly educate, train and supervise Decedent, 22 and in failing to provide them with a reasonably safe place to work, for which 3M is neither 23 responsible nor liable. Further, Decedent’s employers assumed the risk of injury to Plaintiffs 24 and/or decedent in that at the times and places of the subject incidents, the conditions were open 25 and apparent, and were fully known to Decedent’s employers. 3M is thus entitled to a set-off of 26 any workers’ compensation benefits that Plaintiffs and/or decedent received or will receive, 27 against any judgment that may be rendered in Plaintiffs' favor. 28 6 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID 3 UNVERIFIED COMPLAINT, 3M is not liable for any injuries alleged in the Complaint because 4 the products allegedly manufactured and supplied by 3M were done so in accord with all 5 government regulations and specifications and 3M’s conduct falls within the purview and 6 protection of the government contractor defense. 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 8 FOR A TWENTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID 9 UNVERIFIED COMPLAINT, if there is any negligence or liability of any of the parties named ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 herein, it is the sole and exclusive negligence and liability of the other parties, and not of 3M. SAN FRANCISCO, CALIFORNIA 94105 11 TWENTY-FOURTH AFFIRMATIVE DEFENSE DENTONS US LLP 12 FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID (415) 267-4000 13 UNVERIFIED COMPLAINT, in the event parties were not reasonably and adequately warned of 14 potential dangers concerning misuse of the products at issue, the duty to provide the warnings was 15 that of some other person and/or entity, for which 3M is neither responsible nor liable. 16 TWENTY-FIFTH AFFIRMATIVE DEFENSE 17 FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID 18 UNVERIFIED COMPLAINT, Plaintiffs' and/or decedent’s injuries or illnesses, if any there were, 19 were due to the acts or omissions of a person or persons over whom 3M had neither control nor 20 the right of control. 21 TWENTY-SIXTH AFFIRMATIVE DEFENSE 22 FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID 23 UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been 24 involved in the subject incidents, it will also be found that 3M sold the product to some other 25 person and/or entity with all appropriate information and documents about the product, and that 26 3M reasonably relied upon this “sophisticated user” and/or learned intermediary to communicate 27 these materials to the ultimate users of the product, including Plaintiffs and/or decedent. 28 7 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 3 UNVERIFIED COMPLAINT, 3M alleges that Plaintiffs, decedent, and/or Plaintiffs' and/or 4 decedent’s employer(s) were and are sophisticated user(s) and/or learned intermediaries and knew 5 independently or should have known of any danger or hazard associated with the use of asbestos, 6 the use of a product containing asbestos, and exposure to high levels of dust of any sort. 3M 7 further alleges that it gave all parties reasonably appropriate information concerning the use of the 8 product and warned Plaintiffs' and/or decedent’s employer(s) of the danger or hazard, if any, 9 associated with the use of its product and that Plaintiffs, decedent and/or Plaintiffs' employer(s) ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 failed to rely upon such information and warning, resulting in alleged damages due to Plaintiffs, SAN FRANCISCO, CALIFORNIA 94105 11 decedent, and/or Plaintiffs' and/or decedent’s employers’ act or omission and failure to act as DENTONS US LLP 12 sophisticated users. (415) 267-4000 13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 14 FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID 15 UNVERIFIED COMPLAINT, while specifically and vigorously denying Plaintiffs' allegations 16 concerning liability, injuries, and damages, to the extent that Plaintiff may be able to prove those 17 allegations, 3M states that they were the result of intervening acts of superseding negligence on 18 the part of a person or persons over whom 3M had neither control nor the right of control. 19 TWENTY-NINTH AFFIRMATIVE DEFENSE 20 FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID 21 UNVERIFIED COMPLAINT, Plaintiffs are barred from recovering for breach of warranty 22 because Plaintiffs were not in privity with 3M and, even if Plaintiffs were in privity, 3M has 23 disclaimed all applicable warranties. 24 THIRTIETH AFFIRMATIVE DEFENSE 25 FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 26 COMPLAINT, Plaintiffs are barred from recovery for alleged breaches of warranty by section 27 2607 of the California Uniform Commercial Code. 28 8 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 THIRTY-FIRST AFFIRMATIVE DEFENSE 2 FOR A THIRTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID 3 UNVERIFIED COMPLAINT, Plaintiffs and/or decedent have waived any and all claims sought in 4 this action and are estopped both to assert and to recover upon such claims. 5 THIRTY-SECOND AFFIRMATIVE DEFENSE 6 FOR A THIRTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID 7 UNVERIFIED COMPLAINT, any exposure of Plaintiffs and/or decedent to and/or use of 3M's 8 products, which exposure and/or use is vigorously denied, was so minimal as to be insufficient to 9 establish a reasonable degree of probability that the products caused Plaintiffs' and/or decedent’s ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 claimed injuries and illnesses. Accordingly, Plaintiffs are barred from recovery against 3M SAN FRANCISCO, CALIFORNIA 94105 11 because there is no causal connection between any conduct of 3M and any alleged loss or damage DENTONS US LLP 12 that Plaintiffs contend the and/or decedent sustained. (415) 267-4000 13 THIRTY-THIRD AFFIRMATIVE DEFENSE 14 FOR A THIRTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID 15 UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been 16 involved in the subject incidents, it will also be found that the product was, at all relevant times, 17 safe for normal usage in the manner for which it was intended, the benefits of its design 18 outweighed any foreseeable risks, and the product was not defective. 19 THIRTY-FOURTH AFFIRMATIVE DEFENSE 20 FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID 21 UNVERIFIED COMPLAINT, should Plaintiffs prevail against 3M, 3M's liability is several and is 22 limited to its own actionable segment of fault, which fault is vigorously denied. 23 THIRTY-FIFTH AFFIRMATIVE DEFENSE 24 FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID 25 UNVERIFIED COMPLAINT, Plaintiffs' claims of successor liability, alter-ego, and association 26 with other entities, are neither factually nor legally supported, and, as such, Plaintiffs have no 27 claim against 3M, as asserted. To the extent any claim for relief in the Complaint seeks to recover 28 damages against 3M for alleged acts or omissions of alter-egos, alternate entities, predecessors, or 9 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 successors-in-interest to 3M of any kind or description, 3M is not legally responsible and cannot 2 legally be held liable for any such acts or omissions. Further, the conduct of any alter-ego, 3 alternate entity, predecessor, or successor-in-interest cannot, as a matter of law, provide a legal 4 basis for liability or the imposition of damages against 3M. 5 THIRTY-SIXTH AFFIRMATIVE DEFENSE 6 FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID 7 UNVERIFIED COMPLAINT, Plaintiffs' causes of action fail to state a claim upon which relief 8 can be granted, for if relief is granted, such relief would constitute a taking of 3M’s property for a 9 public use without just compensation, a violation of 3M’s Constitutional rights. ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 THIRTY-SEVENTH AFFIRMATIVE DEFENSE SAN FRANCISCO, CALIFORNIA 94105 11 FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID DENTONS US LLP 12 UNVERIFIED COMPLAINT, Plaintiffs' punitive damages claims impermissibly seek a multiple (415) 267-4000 13 award and/or are unconstitutionally excessive under the Contracts Clause of Article I, section 10 14 of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the 15 United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United 16 States Constitution and its counterpart under the California Constitution; the Equal Protection of 17 the laws and Due Process provisions of the Fifth and Fourteenth Amendments of the United States 18 Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of the 19 laws and 3M's right to be free of Cruel and Unusual Punishment and Excessive Fines as 20 guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution 21 and Article I, section 7 and 17, Article IV, and section 16 of the California Constitution. 22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 23 FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID 24 UNVERIFIED COMPLAINT, 3M alleges that the causes of action asserted by Plaintiffs fail to 25 state a claim upon which relief can be granted, or, if relief be granted, 3M's Constitutional right to 26 substantive and procedural due process of law would be contravened. 27 28 10 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 THIRTY-NINTH AFFIRMATIVE DEFENSE 2 FOR A THIRTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID 3 UNVERIFIED COMPLAINT, 3M alleges that the causes of action asserted by Plaintiffs fail to 4 state a claim upon which relief can be granted because such relief would constitute a denial of 5 3M's Constitutional right to equal protection under the law. 6 FORTIETH AFFIRMATIVE DEFENSE 7 FOR A FORTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 8 COMPLAINT, 3M alleges that it is not responsible for the product line or items that Plaintiffs 9 claim that it manufactured, distributed, or sold. Rather, 3M asserts that another entity or entities ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 manufactured, distributed, and sold this product line and is legally responsible therefor. SAN FRANCISCO, CALIFORNIA 94105 11 FORTY-FIRST AFFIRMATIVE DEFENSE DENTONS US LLP 12 FOR A FORTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID (415) 267-4000 13 UNVERIFIED COMPLAINT, 3M alleges that the subject premises was not used in the manner in 14 which it was intended to be used, and as a proximate result of such abuse and misuse, decedent 15 sustained injuries and damages complained of, if any there were. 16 FORTY-SECOND AFFIRMATIVE DEFENSE 17 FOR A FORTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID 18 UNVERIFIED COMPLAINT, alleges that plaintiffs' action is barred by the choice-of-law 19 doctrine and/or the provisions of California Code of Civil Procedure Section 361 in that an action 20 cannot be maintained against this answering defendant by the laws of another state or foreign 21 country, including but not limited to the applicable statute of limitations or statute of repose of that 22 jurisdiction. 23 FORTY-THIRD AFFIRMATIVE DEFENSE 24 FOR A FORTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID 25 UNVERIFIED COMPLAINT, alleges pursuant to the equitable doctrine of forum non conveniens 26 and California Code of Civil Procedure section 410.30, California is an improper forum of this 27 action because in the interests of fairness and convenience, this action should be appropriately and 28 justly tried in a forum outside California. 11 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 FORTY-FOURTH AFFIRMATIVE DEFENSE 2 FOR A FORTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID 3 UNVERIFIED COMPLAINT, alleges that the County of San Francisco is an improper and/or 4 inconvenient venue for this action. 5 FORTY-FIFTH AFFIRMATIVE DEFENSE 6 FOR A FORTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID 7 UNVERIFIED COMPLAINT, alleges that the instant action is barred by the rule against splitting 8 a cause of action. 9 FORTY-SIXTH AFFIRMATIVE DEFENSE ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 FOR A FORTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID SAN FRANCISCO, CALIFORNIA 94105 11 UNVERIFIED COMPLAINT, alleges that another action is pending between the same parties on DENTONS US LLP 12 the same causes of action. (415) 267-4000 13 FORTY-SEVENTH AFFIRMATIVE DEFENSE 14 FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID 15 UNVERIFIED COMPLAINT, alleges that Plaintiffs herein lack legal capacity and standing to sue 16 and are not real parties in interest and are thereby precluded from any recovery whatsoever as 17 prayed for herein. 18 FORTY-EIGHTH AFFIRMATIVE DEFENSE 19 FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID 20 UNVERIFIED COMPLAINT, alleges that Plaintiffs have failed to properly identify a premises 21 over which 3M allegedly had control or responsibility or that it did not retain control or 22 responsibility of the subject premises. 23 FORTY-NINTH AFFIRMATIVE DEFENSE 24 FOR A FORTH-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID 25 UNVERIFIED COMPLAINT, alleges that the Complaint, and each and every survival cause of 26 action therein, is barred as the Decedent’s successor-in-interest or personal representative has 27 failed to execute and file an affidavit or a declaration as required by Code of Civil Procedure 28 section 377.32. 12 ANSWER OF DEFENDANT 3M COMPANY TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR WRONGFUL DEATH 115413053\V-1 1 FIFTIETH AFFIRMATIVE DEFENSE 2 FOR A FIFTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED 3 COMPLAINT, alleges to the extent the Complaint, or any cause of action alleged therein, is based 4 upon an allegation of strict products liability as against this answering defendant, said cause of 5 action cannot be maintained as this answering defendant was not a “seller” within the meaning of 6 Section 402A of the Restatement (Second) of Torts, and consequently any claim of strict liability 7 against this answering defendant is barred. 8 FIFTY-FIRST AFFIRMATIVE DEFENSE 9 FOR A FIFTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID ONE MARKET PLAZA, SPEAR TOWER, 24TH FLOOR 10 UNVERIFIED COMPLAINT, at all times alleged in the Complaint, the products Plaintiffs and/or SAN FRANCISCO, CALIFORNIA 94105 11 decedent’s allege caused their injuries were designed, manufactured, sold, distributed, labeled, and DENTONS US LLP 12 advertised in compliance with the then existing state of the art in the industry to which 3M (415) 267-4000 13 belonged and further; the benefits of any such product design outweighed any risk of danger in the 14 design; and any such products met the safety expectations of Plaintiffs, decedent, and the general 15 public. 16 WHEREFORE, 3M prays that Plaintiffs take nothing by his actions, that 3M be dismissed