Preview
1 WILLIAM M. HAKE (SBN 110956)
Bill.Hake@wilsonelser.com
2 B. GARDINER MCKLEROY (SBN 239367) ELECTRONICALLY
Gardiner.Mckleroy@wilsonelser.com
3 GAYLE L. KETCHIE (SBN 322422) F I L E D
Superior Court of California,
Gayle.Ketchie@wilsonelser.com County of San Francisco
4 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP 12/01/2020
Clerk of the Court
5 525 Market Street, 17th Floor BY: BOWMAN LIU
San Francisco, California 94105 Deputy Clerk
6 Telephone: (415) 433-0990
Facsimile: (415) 434-1370
7
Attorneys for Defendant
8 NASH ENGINEERING COMPANY
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF SAN FRANCISCO
11
12 DOROTHY A. LARSON, individually and as Case No. CGC-17-276562
Successor-In-Interest to CHARLES H.
13 LARSON, Decedent, PAUL LARSON,
DAVID LARSON, BARBARA CHARLENE DEFENDANT THE NASH
14 MELTON ENGINEERING COMPANY’S ANSWER
TO PLAINTIFFS’ COMPLAINT
15 Plaintiffs,
16 v.
17 ASBESTOS COMPANIES, et al.,
18 Defendants.
19
20 COMES NOW Defendant NASH ENGINEERING COMPANY (“NASH”), for itself
21 alone, and in answer to the unverified Complaint for Damages (Negligence; Breach of Express
22 and Implied Warranties; Strict Liability; Premises Owner/Contractor Liability, Loss of
23 Consortium)(the “Complaint”), as originally filed or as amended now or in the future, brought by
24 Plaintiffs Dorothy Larson, Paul Larson, David Larson, and Barbara Charlene Melton to plead as
25 follows:
26 ///
27 ///
28 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 Pursuant to Code of Civil Procedure § 431.30, this answering defendant denies each, every,
2 and all of the allegations of the unverified Complaint, and each and every cause of action therein,
3 and the whole thereof, and denies Plaintiffs have sustained damages in the sum or sums alleged,
4 in any other sum or sums whatsoever, or at all.1
5 FIRST AFFIRMATIVE DEFENSE
6 1. The Complaint, as amended now or in the future, and each and every claim and
7 cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against
8 this answering defendant and fails to state a claim upon which relief may be granted.
9 SECOND AFFIRMATIVE DEFENSE
10 2. The Complaint, as amended now or in the future, and each and every claim and
11 cause of action alleged therein, are barred by Code of Civil Procedure § 335 et seq., § 350 et seq.,
12 and § 366.1 et seq., including §§ 335.1, 337, 337.2, 338, 338.1, 339, 340, 340.2, 340.8, 343,361,
13 and 366.1, and by all other applicable statutes of limitation, including the applicable laws of other
14 jurisdictions. Plaintiffs are thereby precluded from recovering the damages and other relief sought
15 by the Complaint.
16 THIRD AFFIRMATIVE DEFENSE
17 3. The applicable laws, rules, statutes, or regulations, including but not limited to,
18 Code of Civil Procedure § 340.2, and sister-state statutes of limitations and statutes of repose
19 borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period
20 of time following its accrual, were not complied with, and, therefore, Plaintiffs’ claims are barred
21 as a matter of law and equity.
22 FOURTH AFFIRMATIVE DEFENSE
23 4. Plaintiff unreasonably delayed in bringing this action, without good cause, and
24 thereby prejudiced the rights of this answering defendant. The Complaint, as amended now or in
25 the future, and each and every claim and cause of action alleged therein, are therefore barred by
26
27 1
Whenever the masculine pronoun is used in this answer, its reference embraces a female or neutral pronoun,
company, partnership, entity, or corporation, respectively, to the same effect as if the corresponding female or neutral
28 pronoun were substituted. Wherever “Plaintiff” or “Plaintiffs” are used, their reference embraces, respectively, the
pleural “Plaintiffs” and the singular “Plaintiff.”
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 the doctrine of laches.
2 FIFTH AFFIRMATIVE DEFENSE
3 5. Plaintiffs are guilty of “unclean hands” with respect to the matters alleged in the
4 Complaint, as amended now or in the future, which extinguishes, prohibits, and bars Plaintiffs’
5 ability to recover in law or equity under the Complaint.
6 SIXTH AFFIRMATIVE DEFENSE
7 6. At all times and places mentioned in the Complaint, as amended, now or in the
8 future, Plaintiffs were not in privity of contract with this answering defendant, and said lack of
9 privity bars Plaintiffs’ recovery herein upon any theory of warranty.
10 SEVENTH AFFIRMATIVE DEFENSE
11 7. Prior to the filing of this action, Plaintiffs fully, completely, and unequivocally
12 settled and compromised their claims for relief against this answering defendant.
13 EIGHTH AFFIRMATIVE DEFENSE
14 8. At all times and places mentioned in the Complaint, as amended, now or in the
15 future, Plaintiffs were negligent and careless and failed to exercise that degree of care and caution
16 for his own safety which a reasonably prudent person would have used under the same or similar
17 circumstances, in that, among other things, Decedent so negligently and carelessly stationed,
18 conducted and maintained himself, failed to utilize safety devices and other equipment or facilities
19 supplied to them and/or existing as part of their environment, and failed to observe open and
20 obvious conditions, so as to directly and proximately cause and contribute to their injuries and
21 damages, if any. Plaintiffs are therefore precluded from obtaining any recovery against this
22 answering defendant. Alternatively, any negligence or other legal fault attributable to Decedent
23 thereby comparatively reduces the percentage of negligence or fault, ifany, attributable to this
24 answering defendant, which this answering defendant expressly denies.
25 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 NINTH AFFIRMATIVE DEFENSE
2 9. This answering defendant alleges that no act, omission, conduct, or product
3 attributable to it caused or contributed to any injuries or damages sustained by Decedent, if any,
4 and that if Decedent’s injuries and damages, if any, were not solely caused by Decedent’s own
5 acts, omissions, and other conduct, then said injuries and damages were proximately caused and
6 contributed to by the negligence and/or other tortuous acts, omissions, conduct, and products of
7 persons or entities other than this answering defendant, and that said negligence and/or other legal
8 fault were intervening and superseding causes of Decedent’s injuries and damages, if any. Any
9 damages recoverable by Plaintiffs must therefore be diminished in proportion to the amount of
10 fault attributable to these other persons and entities, and there should be an apportionment of the
11 harm and damage claimed by Plaintiff, if any.
12 TENTH AFFIRMATIVE DEFENSE
13 10. At all times and places referred to in the Complaint, as amended, now or in the
14 future, Plaintiffs were, or in the exercise of reasonable care should have been, aware of all
15 circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
16 voluntarily, and in full appreciation of the potential consequences thereof, exposed himself to
17 whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
18 freely and voluntarily assuming any and all risks incident thereto, and thereby barring Plaintiffs
19 from recovery herein.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 11. At all times and places referred to in the Complaint, as amended, now or in the
22 future, Decedent failed to use the products alleged in the Complaint in a foreseeable, proper, and
23 safe manner which would have otherwise been anticipated and expected of an ordinary user. Such
24 misuse of the products described in the Complaint by Decedent was the sole, proximate, and legal
25 cause of Decedent’s injuries and damages, if any, thereby barring Plaintiffs from recovery herein.
26 ///
27 ///
28 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 TWELFTH AFFIRMATIVE DEFENSE
2 12. At all times and places referred to in the Complaint, as amended, now or in the
3 future, the products described in the Complaint which allegedly injured Decedent was without this
4 answering defendant’s knowledge, approval, or consent, and contrary to instructions and/or the
5 customs and practices in the industry, altered, re-designed, modified, or subjected to other
6 treatment which substantially changed their character, such that they were not being used,
7 functioning, and/or performing in a manner intended by their manufacturer, and/or were not in
8 substantially the same or similar condition as when they left the manufacturer’s possession. If there
9 was a defect in said products, which supposition is specifically denied by this answering defendant,
10 such defect resulted solely from such alteration, re-design, modification, treatment, or other
11 change, and not from any act or omission by this answering defendant, thereby barring Plaintiff
12 from recovery herein as against this answering defendant.
13 THIRTEENTH AFFIRMATIVE DEFENSE
14 13. Plaintiffs are barred from recovery herein in that any products associated with this
15 answering defendant were in conformity with the existing state of the medical, scientific, and
16 industrial knowledge, art, and practices, and, as a result, said products were not defective in any
17 manner.
18 FOURTEENTH AFFIRMATIVE DEFENSE
19 14. Plaintiffs are barred from recovery herein in that any products associated with this
20 answering defendant were manufactured and/or produced in conformity with specifications
21 established and provided by the United States Government pursuant to its War Powers as set forth
22 in the United States Constitution, and that any defect in said products were caused by deficiencies
23 in said specifications, and not by any action or conduct on the part of this answering defendant.
24 FIFTEENTH AFFIRMATIVE DEFENSE
25 15. At all times and places referred to in the Complaint, as amended, now or in the
26 future, Decedent failed to make reasonable efforts to mitigate their injuries, loss, and/or damages,
27 if any.
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 16. Plaintiffs failed to give this answering defendant timely and reasonable notice of
3 any alleged breach of contract or warranty, thereby barring Plaintiffs from recovery herein.
4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 17. At all times and places referred to in the Complaint, as amended, now or in the
6 future, Plaintiffs waived whatever right they might otherwise have had to claim a breach of
7 warranty, in that Plaintiffs failed to notify this answering defendant of any alleged breach of
8 warranty, express or implied, and if any alleged defect existed in any alleged product associated
9 with this answering defendant, Plaintiffs discovered or should have discovered said defect or non-
10 conformity, if any existed, and their failure to do so within a reasonable period of time prejudices
11 this answering defendant from being able to fully investigate and defend the allegations made
12 against it in the Complaint, as amended now or in the future.
13 EIGHTEENTH AFFIRMATIVE DEFENSE
14 18. This answering defendant alleges that it had no duty to warn of any alleged risks of
15 any alleged product associated with this answering defendant, if any, as such risks were
16 unforeseeable at the time of Decedent’s alleged exposure and/or said product was not defective;
17 and, even if this answering defendant had a duty to warn, which is denied, this answering defendant
18 fulfilled its alleged duty to warn of any alleged risks for any product associated with this answering
19 defendant, if any, at all times.
20 NINETEENTH AFFIRMATIVE DEFENSE
21 19. Plaintiff’s breach of warranty claims are barred by written disclaimers and/or
22 exclusions contained on or in the labels or packaging of the products at issue in this action.
23 TWENTIETH AFFIRMATIVE DEFENSE
24 20. This answering defendant alleges that the benefit of the design of any product
25 associated with said defendant outweighs any risk associated with said product, if any risk there
26 actually was, which this answering defendant denies.
27 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 TWENTY-FIRST AFFIRMATIVE DEFENSE
2 21. This answering defendant alleges that, if any express or implied warranties for
3 purpose or merchantability were provided, which this answering defendant expressly denies as to
4 Plaintiffs, said product met all such express or implied warranties for purpose or merchantability.
5 TWENTY-SECOND AFFIRMATIVE DEFENSE
6 22. The Complaint, as amended now or in the future, and each and every claim and
7 cause of action alleged therein, are barred by the “sophisticated user” doctrine pursuant to Johnson
8 v. American Standard, Inc. (2008) 43 Cal.4th 56 and its progeny. At all times relevant to the
9 matters alleged in the Complaint, as amended now or in the future, Decedent knew or should have
10 known of the inherent hazards, risks, or potential dangers of the products alleged to be at issue and
11 were therefore sophisticated and knowledgeable users of each such product. As such, this
12 answering defendant is not liable to Plaintiffs for any failure to warn of such hazards, risks, or
13 dangers.
14 TWENTY-THIRD AFFIRMATIVE DEFENSE
15 23. To the extent the Complaint, as amended now or in the future, or any cause of action
16 alleged therein, is based upon an allegation of strict products liability as against this answering
17 defendant, said cause of action is barred and cannot be maintained under the component parts
18 doctrine and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 and its
19 progeny.
20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
21 24. The Complaint, as amended now or in the future, and each and every claim and
22 cause of action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.
23 § 20701 et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301 et seq., and all other
24 applicable federal statutes, laws, or regulations.
25 TWENTY-FIFTH AFFIRMATIVE DEFENSE
26 25. The answering defendant alleges that at all times relevant to the matters alleged in
27 the Complaint, as amended now or in the future, Plaintiffs’ claims against this answering defendant
28 are based upon activities in a jurisdiction other than California and the laws of the jurisdiction
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 where the alleged injury occurred are applicable to this answering defendant.
2 TWENTY-SIXTH AFFIRMATIVE DEFENSE
3 26. This answering defendant alleges that any exposure of Decedent to answering
4 defendant’s activities, or exposure to asbestos or asbestos-containing product, was so minimal as
5 to be insufficient to establish by a reasonable degree of probability that any such activity or product
6 caused any alleged injury, damages, or loss to Plaintiffs.
7 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
8 27. At all times relevant to the matters alleged in the Complaint, as amended now or in
9 the future, all of Decedent’s employers, other than this answering defendant, were sophisticated
10 and knowledgeable users of asbestos products, and said employers’ negligence in providing said
11 products to their employees in a negligent, careless, and reckless manner was a superseding cause
12 of Decedent’s injuries, if any.
13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14 28. This answering defendant is not liable for any alleged failure to warn of any risks,
15 dangers, or hazards in the use of any asbestos-containing products or other goods that it allegedly
16 distributed, sold, supplied, manufactured, or delivered to Decedent’s employers, because said
17 employers had as great, if not greater, knowledge about the nature of any risks, dangers, or hazards
18 than did this answering defendant, and, unlike this answering defendant, said employers were in a
19 position to warn persons exposed to such products of any such risks, dangers, or hazards.
20 TWENTY-NINTH AFFIRMATIVE DEFENSE
21 29. The Complaint, as amended now or in the future, and each and every claim and
22 cause of action alleged therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or
23 “malice,” as these terms are used in Civil Code § 3294, and therefore fails to state a claim that
24 would support punitive damages.
25 THIRTIETH AFFIRMATIVE DEFENSE
26 30. The imposition of punitive/exemplary damages against this corporate answering
27 defendant for the alleges acts of a former and/or predecessor corporate entity would be a violation
28 of due process of law, and against public policy, under the various laws of the State of California
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 and the United States.
2 THIRTY-FIRST AFFIRMATIVE DEFENSE
3 31. This answering defendant alleges that Civil Code § 3294 violates the Due Process
4 and/or Equal Protection clauses of the California and/or United States Constitutions, is void
5 because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and
6 violates the Eighth Amendment to the United States Constitution. Accordingly, Plaintiffs are
7 barred from any recovery thereunder.
8 THIRTY-SECOND AFFIRMATIVE DEFENSE
9 32. The liability of this answering defendant, if any, shall be apportioned in accordance
10 with the provisions of Civil Code § 1431 et seq., commonly known as the Fair Responsibility Act
11 of 1986.
12 THIRTY-THIRD AFFIRMATIVE DEFENSE
13 33. This answering defendant alleges on information and belief that at all times and
14 places relevant to this action, Decedent was an employee of an employer or employers whose
15 names are presently unknown, and that any injuries or damages alleged in the Complaint, as
16 amended now or in the future, occurred while Plaintiff was acting within the course of scope of
17 such employment. This answering defendant further alleges on information and belief that
18 Decedent’s employer or employers provided Plaintiff with certain benefits in compliance with the
19 terms and provisions of the Workers’ Compensation Laws of the State of California. The nature
20 and extent of such Workers’ Compensation benefits that may have been provided is unknown, but
21 when said benefits are determined, leave to amend this answer and set forth the details of said
22 benefits will be sought. It is further alleged that any and all injuries and damages complained of
23 by Decedent was solely and proximately caused by, or resulted from, the negligence and
24 carelessness of Decedent’s employers, co-workers, and/or employers’ agents, servants, or
25 employees. Therefore, this answering defendant is entitled to an offset of any such benefits
26 received, or to be received, by Decedent against any judgment which may be rendered in favor of
27 Plaintiffs pursuant to the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57 and its progeny.
28 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 THIRTY-FOURTH AFFIRMATIVE DEFENSE
2 34. Plaintiff is barred from recovery herein if at any time, past or present, Decedent
3 was or is employees of this answering defendant, including any of this answering defendant’s
4 divisions or subsidiaries, thereby creating conditions of compensation. The right to recover
5 Workers’ Compensation benefits is Plaintiffs’ sole and exclusive remedy as against this answering
6 defendant, pursuant to the provisions of Labor Code § 3600 et seq. This answering defendant is
7 entitled to a judicial determination of any such employee-employer relationship establishing such
8 exclusive remedy and bar to recovery prior to any hearing or trial on the merits in this matter.
9 THIRTY-FIFTH AFFIRMATIVE DEFENSE
10 35. Even if Decedent was exposed to an asbestos-containing product associated with
11 this answering defendant, which supposition is expressly denied, Decedent’s exposure to said
12 product would have been so minimal as to be insufficient to constitute a “substantial contributing
13 factor” in the causation of Decedent’s alleged injuries or disease, if any.
14 THIRTY-SIXTH AFFIRMATIVE DEFENSE
15 36. This answering defendant did not and does not have a substantial percentage of the
16 market for any asbestos-containing products which allegedly caused the injuries and damages
17 claimed by Decedent. Furthermore, the asbestos-containing products which allegedly caused the
18 injuries and damages claimed by Decedent is not “fungible” in nature. As such, this answering
19 defendant may not be held liable to Plaintiff based upon any “market-share” or “enterprise”
20 theories of liability.
21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
22 37. The Complaint, as amended now or in the future, and each and every claim and
23 cause of action alleged therein, to the extent they purport to state a cause of action under Sindell v.
24 Abbott Laboratories (1980) 26 Cal.3d. 588, cert. denied, 449 U.S. 912 (1980), is barred by
25 Plaintiff’s failure to join as defendants the manufacturers of a substantial share of the alleged
26 market which Plaintiffs allege this answering defendant is a member, and should it prove
27 impossible to identify the manufacturers of the products which comprise said alleged market, said
28 purported causes of action are barred by the fault of the Decedent, and their agents in making the
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 identification of the manufacturers impossible.
2 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
3 38. This answering defendant denies it was a successor, successor in business,
4 successor in product line or portion thereof, assign, predecessor, predecessor in business,
5 predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially
6 owned by, or the whole or partial owner of, or member in any entity owning property, maintaining
7 premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
8 distributing, leasing, buying, offering for sale, selling, inspecting, servicing, developing,
9 constructing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
10 manufacturing for others, packaging, or advertising any alleged asbestos-containing products or
11 other alleged asbestos-related activities, services, acts, or omissions. This answering defendant is
12 therefore not liable for any acts, whether they be active or passive, or omissions of any entities to
13 which this answering defendant is or may be alleged to be a successor-in-interest, predecessor-in-
14 interest, alter ego, or the like.
15 THIRTY-NINTH AFFIRMATIVE DEFENSE
16 39. This answering defendant alleges that at all times relevant to the matters alleged in
17 the Complaint, as amended now or in the future, upon information and belief, this answering
18 defendant did not control the details of Decedent’s work or that of Decedent’s employers. Control
19 of the premises was in the hands of others who directly controlled Decedent’s work.
20 FORTIETH AFFIRMATIVE DEFENSE
21 40. The Complaint, as amended now or in the future, and each and every claim and
22 cause of action alleged therein, are barred by the rule against splitting a cause of action.
23 FORTY-FIRST AFFIRMATIVE DEFENSE
24 41. The Complaint, as amended now or in the future, and each and every claim and
25 cause of action alleged therein, if based upon the lack of identification of the manufacturer of the
26 alleged injury-causing products, fails to state facts sufficient to constitute a cause of action against
27 this answering defendant in that Plaintiffs have asserted claims for which relief, if granted, would
28 contravene this answering defendant’s constitutional rights to substantive and procedural due
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 process of law as preserved by the Fourteenth Amendment of the Constitution of the United States
2 and by Article 1, Section 7 of the Constitution of the State of California.
3 FORTY-SECOND AFFIRMATIVE DEFENSE
4 42. The Complaint, as amended now or in the future, and each and every claim and
5 cause of action alleged therein, if based upon the lack of identification of the manufacturer of the
6 alleged injury-causing products, fails to state facts sufficient to constitute a cause of action against
7 this answering defendant in that Plaintiffs have asserted claims for which relief, if granted, would
8 constitute an invalid burden by this Court on interstate commerce and a burden without resort to
9 less burdensome alternatives, in violation of the Commerce Clause, Article I, Section 8 of the
10 Constitution of the United States.
11 FORTY-THIRD AFFIRMATIVE DEFENSE
12 43. The Complaint, as amended now or in the future, and each and every claim and
13 cause of action alleged therein, are barred by Plaintiffs’ failure to timely join one or more parties
14 that are indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as
15 required by Code of Civil Procedure § 389.
16 FORTY-FOURTH AFFIRMATIVE DEFENSE
17 44. The Complaint, as amended now or in the future, and each and every claim and
18 cause of action alleged therein, are barred pursuant to the doctrines of res judicata and/or collateral
19 estoppel.
20 FORTY-FIFTH AFFIRMATIVE DEFENSE
21 45. The Complaint, as amended now or in the future, and each and every claim and
22 cause of action alleged therein, are barred because there is a defect and misjoinder of parties,
23 plaintiff and/or defendant.
24 FORTY-SIXTH AFFIRMATIVE DEFENSE
25 46. Plaintiffs’ claims are barred or preempted, in whole or in part, by federal law,
26 statutes, and regulations.
27 ///
28 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 FORTY-SEVENTH AFFIRMATIVE DEFENSE
2 47. This answering defendant presently lacks sufficient information to determine
3 whether additional, as yet unknown and unasserted, affirmative defenses exist. This answering
4 defendant reserves its right to assert additional defenses should they become available and are
5 deemed appropriate.
6 FORTY-EIGHTH AFFIRMATIVE DEFENSE
7 48. Defendant alleges that any product or products alleged by Decedent to have
8 caused his injuries were manufactured, installed, used or distributed in compliance with
9 specifications provided by third parties to Defendant and/or in compliance with all applicable
10 health and safety statutes and regulations.
11 FORTY-NINTH AFFIRMATIVE DEFENSE
12 49. Defendant alleges that Plaintiffs’ claim against Defendant is barred by the holding
13 of Privette v. Superior Court (1993) 5 Cal.4th 689.
14 FIFTIETH AFFIRMATIVE DEFENSE
15 50. Defendant alleges that all times relevant to the matters alleged in Plaintiffs’
16 Complaint, Defendant had no duty to warn of the hazards of asbestos-containing products
17 manufactured or supplied by third parties within the meaning of O’Neil v. Crane Co., (2012) 53
18 Cal. 4th 335 and is not liable for any injury caused by a design defect in asbestos-containing
19 products manufactured or supplies by third parties.
20 FIFTY-FIRST AFFIRMATIVE DEFENSE
21 51. This answering defendant alleges that if it has purportedly been named or served
22 in this action as a Doe Defendant, Plaintiff’s attempt to do so is invalid in that Plaintiff knew or
23 should have known of the identity of this answering defendant and of Plaintiff’s alleged causes
24 of action against it at the time of the filing of the Complaint..
25 RESERVATION OF RIGHTS
26 This answering defendant hereby reserves the right, upon completion of its investigation
27 and discovery, to amend this answer to include such additional defenses as may be appropriate.
28 ///
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 PRAYER
2 WHEREFORE, this answering defendant prays as follows:
3 1. That Plaintiffs take nothing by reason of the operative Complaint on file;
4 2. That this answering defendant be awarded its costs and expenses of suit incurred;
5 3. That this answering defendant be awarded its reasonable attorneys’ fees;
6 4. That ifthis answering defendant is found liable the degree of responsibility and
7 liability for the resulting damages be determined and apportioned and off-set by
8 Plaintiff’s and/or other parties’ comparative fault or negligence in accordance with
9 Civil Code § 1431 et seq.; and,
10 5. For such other and further relief as the Court may deem just and proper.
11
12 Dated: December 1, 2020 WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP
13
14
By: /s/ Gardiner McKleroy
15 William M. Hake, Esq.
Gardiner McKleroy, Esq.
16 Gayle Ketchie, Esq.
Attorneys for Defendant
17
NASH ENGINEERING COMPANY
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DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT
2498731V.1
1 PROOF OF SERVICE
2 I, the undersigned, am employed in the county of San Francisco, State of California. I am
over the age of 18 and not a party to the within action; my business address is 525 Market Street,
3 17th Floor, San Francisco CA 94105. On the date indicated below, I caused to be served the
following document(s) described as follows:
4
DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’
5 PERSONAL INJURY COMPLAINT FOR DAMAGES (NEGLIGENCE; BREACH
OF EXPRESS AND IMPLIED WARRANTIES; STRICT LIABILITY; PREMISES
6 OWNER/CONTRACTOR LIABILITY)
7 : PERSONAL SERVICE - I served the documents by placing them in an envelope or
package addressed to the persons at the addresses listed below, and providing them to a
8 professional messenger service for service. (A confirmation by the messenger will be
provided to our office after the documents have been delivered.)
9
: BY MAIL - As follows: I am “readily familiar” with the firm’s practice of collection
10 and processing correspondence for mailing. Under that practice it would be deposited
with the U.S. Postal Service on that same day with postage thereon fully prepaid at San
11 Francisco, California in the ordinary course of business. The envelope was sealed and
placed for collection and mailing on this date following our ordinary practices. I am
12 aware that on motion of the party served, service is presumed invalid if postal
cancellation date or postage meter date is more than one day after date of deposit for
13 mailing in affidavit.
14 : OVERNIGHT MAIL - As follows: I am “readily familiar” with the firm’s practice of
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1 WILLIAM M. HAKE (SBN 110956) Bill.Hake@wilsonelser.com 2 B. GARDINER MCKLEROY (SBN 239367) ELECTRONICALLY Gardiner.Mckleroy@wilsonelser.com 3 GAYLE L. KETCHIE (SBN 322422) F I L E D Superior Court of California, Gayle.Ketchie@wilsonelser.com County of San Francisco 4 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 12/01/2020 Clerk of the Court 5 525 Market Street, 17th Floor BY: BOWMAN LIU San Francisco, California 94105 Deputy Clerk 6 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 7 Attorneys for Defendant 8 NASH ENGINEERING COMPANY 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO 11 12 DOROTHY A. LARSON, individually and as Case No. CGC-17-276562 Successor-In-Interest to CHARLES H. 13 LARSON, Decedent, PAUL LARSON, DAVID LARSON, BARBARA CHARLENE DEFENDANT THE NASH 14 MELTON ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 15 Plaintiffs, 16 v. 17 ASBESTOS COMPANIES, et al., 18 Defendants. 19 20 COMES NOW Defendant NASH ENGINEERING COMPANY (“NASH”), for itself 21 alone, and in answer to the unverified Complaint for Damages (Negligence; Breach of Express 22 and Implied Warranties; Strict Liability; Premises Owner/Contractor Liability, Loss of 23 Consortium)(the “Complaint”), as originally filed or as amended now or in the future, brought by 24 Plaintiffs Dorothy Larson, Paul Larson, David Larson, and Barbara Charlene Melton to plead as 25 follows: 26 /// 27 /// 28 /// -1- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 Pursuant to Code of Civil Procedure § 431.30, this answering defendant denies each, every, 2 and all of the allegations of the unverified Complaint, and each and every cause of action therein, 3 and the whole thereof, and denies Plaintiffs have sustained damages in the sum or sums alleged, 4 in any other sum or sums whatsoever, or at all.1 5 FIRST AFFIRMATIVE DEFENSE 6 1. The Complaint, as amended now or in the future, and each and every claim and 7 cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against 8 this answering defendant and fails to state a claim upon which relief may be granted. 9 SECOND AFFIRMATIVE DEFENSE 10 2. The Complaint, as amended now or in the future, and each and every claim and 11 cause of action alleged therein, are barred by Code of Civil Procedure § 335 et seq., § 350 et seq., 12 and § 366.1 et seq., including §§ 335.1, 337, 337.2, 338, 338.1, 339, 340, 340.2, 340.8, 343,361, 13 and 366.1, and by all other applicable statutes of limitation, including the applicable laws of other 14 jurisdictions. Plaintiffs are thereby precluded from recovering the damages and other relief sought 15 by the Complaint. 16 THIRD AFFIRMATIVE DEFENSE 17 3. The applicable laws, rules, statutes, or regulations, including but not limited to, 18 Code of Civil Procedure § 340.2, and sister-state statutes of limitations and statutes of repose 19 borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period 20 of time following its accrual, were not complied with, and, therefore, Plaintiffs’ claims are barred 21 as a matter of law and equity. 22 FOURTH AFFIRMATIVE DEFENSE 23 4. Plaintiff unreasonably delayed in bringing this action, without good cause, and 24 thereby prejudiced the rights of this answering defendant. The Complaint, as amended now or in 25 the future, and each and every claim and cause of action alleged therein, are therefore barred by 26 27 1 Whenever the masculine pronoun is used in this answer, its reference embraces a female or neutral pronoun, company, partnership, entity, or corporation, respectively, to the same effect as if the corresponding female or neutral 28 pronoun were substituted. Wherever “Plaintiff” or “Plaintiffs” are used, their reference embraces, respectively, the pleural “Plaintiffs” and the singular “Plaintiff.” -2- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 the doctrine of laches. 2 FIFTH AFFIRMATIVE DEFENSE 3 5. Plaintiffs are guilty of “unclean hands” with respect to the matters alleged in the 4 Complaint, as amended now or in the future, which extinguishes, prohibits, and bars Plaintiffs’ 5 ability to recover in law or equity under the Complaint. 6 SIXTH AFFIRMATIVE DEFENSE 7 6. At all times and places mentioned in the Complaint, as amended, now or in the 8 future, Plaintiffs were not in privity of contract with this answering defendant, and said lack of 9 privity bars Plaintiffs’ recovery herein upon any theory of warranty. 10 SEVENTH AFFIRMATIVE DEFENSE 11 7. Prior to the filing of this action, Plaintiffs fully, completely, and unequivocally 12 settled and compromised their claims for relief against this answering defendant. 13 EIGHTH AFFIRMATIVE DEFENSE 14 8. At all times and places mentioned in the Complaint, as amended, now or in the 15 future, Plaintiffs were negligent and careless and failed to exercise that degree of care and caution 16 for his own safety which a reasonably prudent person would have used under the same or similar 17 circumstances, in that, among other things, Decedent so negligently and carelessly stationed, 18 conducted and maintained himself, failed to utilize safety devices and other equipment or facilities 19 supplied to them and/or existing as part of their environment, and failed to observe open and 20 obvious conditions, so as to directly and proximately cause and contribute to their injuries and 21 damages, if any. Plaintiffs are therefore precluded from obtaining any recovery against this 22 answering defendant. Alternatively, any negligence or other legal fault attributable to Decedent 23 thereby comparatively reduces the percentage of negligence or fault, ifany, attributable to this 24 answering defendant, which this answering defendant expressly denies. 25 /// 26 /// 27 /// 28 /// -3- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 NINTH AFFIRMATIVE DEFENSE 2 9. This answering defendant alleges that no act, omission, conduct, or product 3 attributable to it caused or contributed to any injuries or damages sustained by Decedent, if any, 4 and that if Decedent’s injuries and damages, if any, were not solely caused by Decedent’s own 5 acts, omissions, and other conduct, then said injuries and damages were proximately caused and 6 contributed to by the negligence and/or other tortuous acts, omissions, conduct, and products of 7 persons or entities other than this answering defendant, and that said negligence and/or other legal 8 fault were intervening and superseding causes of Decedent’s injuries and damages, if any. Any 9 damages recoverable by Plaintiffs must therefore be diminished in proportion to the amount of 10 fault attributable to these other persons and entities, and there should be an apportionment of the 11 harm and damage claimed by Plaintiff, if any. 12 TENTH AFFIRMATIVE DEFENSE 13 10. At all times and places referred to in the Complaint, as amended, now or in the 14 future, Plaintiffs were, or in the exercise of reasonable care should have been, aware of all 15 circumstances and conditions then and there existing and prevailing, but nonetheless knowingly, 16 voluntarily, and in full appreciation of the potential consequences thereof, exposed himself to 17 whatever risks and dangers may have been attendant to such circumstances and conditions, thereby 18 freely and voluntarily assuming any and all risks incident thereto, and thereby barring Plaintiffs 19 from recovery herein. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 11. At all times and places referred to in the Complaint, as amended, now or in the 22 future, Decedent failed to use the products alleged in the Complaint in a foreseeable, proper, and 23 safe manner which would have otherwise been anticipated and expected of an ordinary user. Such 24 misuse of the products described in the Complaint by Decedent was the sole, proximate, and legal 25 cause of Decedent’s injuries and damages, if any, thereby barring Plaintiffs from recovery herein. 26 /// 27 /// 28 /// -4- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 TWELFTH AFFIRMATIVE DEFENSE 2 12. At all times and places referred to in the Complaint, as amended, now or in the 3 future, the products described in the Complaint which allegedly injured Decedent was without this 4 answering defendant’s knowledge, approval, or consent, and contrary to instructions and/or the 5 customs and practices in the industry, altered, re-designed, modified, or subjected to other 6 treatment which substantially changed their character, such that they were not being used, 7 functioning, and/or performing in a manner intended by their manufacturer, and/or were not in 8 substantially the same or similar condition as when they left the manufacturer’s possession. If there 9 was a defect in said products, which supposition is specifically denied by this answering defendant, 10 such defect resulted solely from such alteration, re-design, modification, treatment, or other 11 change, and not from any act or omission by this answering defendant, thereby barring Plaintiff 12 from recovery herein as against this answering defendant. 13 THIRTEENTH AFFIRMATIVE DEFENSE 14 13. Plaintiffs are barred from recovery herein in that any products associated with this 15 answering defendant were in conformity with the existing state of the medical, scientific, and 16 industrial knowledge, art, and practices, and, as a result, said products were not defective in any 17 manner. 18 FOURTEENTH AFFIRMATIVE DEFENSE 19 14. Plaintiffs are barred from recovery herein in that any products associated with this 20 answering defendant were manufactured and/or produced in conformity with specifications 21 established and provided by the United States Government pursuant to its War Powers as set forth 22 in the United States Constitution, and that any defect in said products were caused by deficiencies 23 in said specifications, and not by any action or conduct on the part of this answering defendant. 24 FIFTEENTH AFFIRMATIVE DEFENSE 25 15. At all times and places referred to in the Complaint, as amended, now or in the 26 future, Decedent failed to make reasonable efforts to mitigate their injuries, loss, and/or damages, 27 if any. 28 /// -5- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 16. Plaintiffs failed to give this answering defendant timely and reasonable notice of 3 any alleged breach of contract or warranty, thereby barring Plaintiffs from recovery herein. 4 SEVENTEENTH AFFIRMATIVE DEFENSE 5 17. At all times and places referred to in the Complaint, as amended, now or in the 6 future, Plaintiffs waived whatever right they might otherwise have had to claim a breach of 7 warranty, in that Plaintiffs failed to notify this answering defendant of any alleged breach of 8 warranty, express or implied, and if any alleged defect existed in any alleged product associated 9 with this answering defendant, Plaintiffs discovered or should have discovered said defect or non- 10 conformity, if any existed, and their failure to do so within a reasonable period of time prejudices 11 this answering defendant from being able to fully investigate and defend the allegations made 12 against it in the Complaint, as amended now or in the future. 13 EIGHTEENTH AFFIRMATIVE DEFENSE 14 18. This answering defendant alleges that it had no duty to warn of any alleged risks of 15 any alleged product associated with this answering defendant, if any, as such risks were 16 unforeseeable at the time of Decedent’s alleged exposure and/or said product was not defective; 17 and, even if this answering defendant had a duty to warn, which is denied, this answering defendant 18 fulfilled its alleged duty to warn of any alleged risks for any product associated with this answering 19 defendant, if any, at all times. 20 NINETEENTH AFFIRMATIVE DEFENSE 21 19. Plaintiff’s breach of warranty claims are barred by written disclaimers and/or 22 exclusions contained on or in the labels or packaging of the products at issue in this action. 23 TWENTIETH AFFIRMATIVE DEFENSE 24 20. This answering defendant alleges that the benefit of the design of any product 25 associated with said defendant outweighs any risk associated with said product, if any risk there 26 actually was, which this answering defendant denies. 27 /// 28 /// -6- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 21. This answering defendant alleges that, if any express or implied warranties for 3 purpose or merchantability were provided, which this answering defendant expressly denies as to 4 Plaintiffs, said product met all such express or implied warranties for purpose or merchantability. 5 TWENTY-SECOND AFFIRMATIVE DEFENSE 6 22. The Complaint, as amended now or in the future, and each and every claim and 7 cause of action alleged therein, are barred by the “sophisticated user” doctrine pursuant to Johnson 8 v. American Standard, Inc. (2008) 43 Cal.4th 56 and its progeny. At all times relevant to the 9 matters alleged in the Complaint, as amended now or in the future, Decedent knew or should have 10 known of the inherent hazards, risks, or potential dangers of the products alleged to be at issue and 11 were therefore sophisticated and knowledgeable users of each such product. As such, this 12 answering defendant is not liable to Plaintiffs for any failure to warn of such hazards, risks, or 13 dangers. 14 TWENTY-THIRD AFFIRMATIVE DEFENSE 15 23. To the extent the Complaint, as amended now or in the future, or any cause of action 16 alleged therein, is based upon an allegation of strict products liability as against this answering 17 defendant, said cause of action is barred and cannot be maintained under the component parts 18 doctrine and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564 and its 19 progeny. 20 TWENTY-FOURTH AFFIRMATIVE DEFENSE 21 24. The Complaint, as amended now or in the future, and each and every claim and 22 cause of action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C. 23 § 20701 et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301 et seq., and all other 24 applicable federal statutes, laws, or regulations. 25 TWENTY-FIFTH AFFIRMATIVE DEFENSE 26 25. The answering defendant alleges that at all times relevant to the matters alleged in 27 the Complaint, as amended now or in the future, Plaintiffs’ claims against this answering defendant 28 are based upon activities in a jurisdiction other than California and the laws of the jurisdiction -7- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 where the alleged injury occurred are applicable to this answering defendant. 2 TWENTY-SIXTH AFFIRMATIVE DEFENSE 3 26. This answering defendant alleges that any exposure of Decedent to answering 4 defendant’s activities, or exposure to asbestos or asbestos-containing product, was so minimal as 5 to be insufficient to establish by a reasonable degree of probability that any such activity or product 6 caused any alleged injury, damages, or loss to Plaintiffs. 7 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 8 27. At all times relevant to the matters alleged in the Complaint, as amended now or in 9 the future, all of Decedent’s employers, other than this answering defendant, were sophisticated 10 and knowledgeable users of asbestos products, and said employers’ negligence in providing said 11 products to their employees in a negligent, careless, and reckless manner was a superseding cause 12 of Decedent’s injuries, if any. 13 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 14 28. This answering defendant is not liable for any alleged failure to warn of any risks, 15 dangers, or hazards in the use of any asbestos-containing products or other goods that it allegedly 16 distributed, sold, supplied, manufactured, or delivered to Decedent’s employers, because said 17 employers had as great, if not greater, knowledge about the nature of any risks, dangers, or hazards 18 than did this answering defendant, and, unlike this answering defendant, said employers were in a 19 position to warn persons exposed to such products of any such risks, dangers, or hazards. 20 TWENTY-NINTH AFFIRMATIVE DEFENSE 21 29. The Complaint, as amended now or in the future, and each and every claim and 22 cause of action alleged therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or 23 “malice,” as these terms are used in Civil Code § 3294, and therefore fails to state a claim that 24 would support punitive damages. 25 THIRTIETH AFFIRMATIVE DEFENSE 26 30. The imposition of punitive/exemplary damages against this corporate answering 27 defendant for the alleges acts of a former and/or predecessor corporate entity would be a violation 28 of due process of law, and against public policy, under the various laws of the State of California -8- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 and the United States. 2 THIRTY-FIRST AFFIRMATIVE DEFENSE 3 31. This answering defendant alleges that Civil Code § 3294 violates the Due Process 4 and/or Equal Protection clauses of the California and/or United States Constitutions, is void 5 because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and 6 violates the Eighth Amendment to the United States Constitution. Accordingly, Plaintiffs are 7 barred from any recovery thereunder. 8 THIRTY-SECOND AFFIRMATIVE DEFENSE 9 32. The liability of this answering defendant, if any, shall be apportioned in accordance 10 with the provisions of Civil Code § 1431 et seq., commonly known as the Fair Responsibility Act 11 of 1986. 12 THIRTY-THIRD AFFIRMATIVE DEFENSE 13 33. This answering defendant alleges on information and belief that at all times and 14 places relevant to this action, Decedent was an employee of an employer or employers whose 15 names are presently unknown, and that any injuries or damages alleged in the Complaint, as 16 amended now or in the future, occurred while Plaintiff was acting within the course of scope of 17 such employment. This answering defendant further alleges on information and belief that 18 Decedent’s employer or employers provided Plaintiff with certain benefits in compliance with the 19 terms and provisions of the Workers’ Compensation Laws of the State of California. The nature 20 and extent of such Workers’ Compensation benefits that may have been provided is unknown, but 21 when said benefits are determined, leave to amend this answer and set forth the details of said 22 benefits will be sought. It is further alleged that any and all injuries and damages complained of 23 by Decedent was solely and proximately caused by, or resulted from, the negligence and 24 carelessness of Decedent’s employers, co-workers, and/or employers’ agents, servants, or 25 employees. Therefore, this answering defendant is entitled to an offset of any such benefits 26 received, or to be received, by Decedent against any judgment which may be rendered in favor of 27 Plaintiffs pursuant to the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57 and its progeny. 28 /// -9- DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 THIRTY-FOURTH AFFIRMATIVE DEFENSE 2 34. Plaintiff is barred from recovery herein if at any time, past or present, Decedent 3 was or is employees of this answering defendant, including any of this answering defendant’s 4 divisions or subsidiaries, thereby creating conditions of compensation. The right to recover 5 Workers’ Compensation benefits is Plaintiffs’ sole and exclusive remedy as against this answering 6 defendant, pursuant to the provisions of Labor Code § 3600 et seq. This answering defendant is 7 entitled to a judicial determination of any such employee-employer relationship establishing such 8 exclusive remedy and bar to recovery prior to any hearing or trial on the merits in this matter. 9 THIRTY-FIFTH AFFIRMATIVE DEFENSE 10 35. Even if Decedent was exposed to an asbestos-containing product associated with 11 this answering defendant, which supposition is expressly denied, Decedent’s exposure to said 12 product would have been so minimal as to be insufficient to constitute a “substantial contributing 13 factor” in the causation of Decedent’s alleged injuries or disease, if any. 14 THIRTY-SIXTH AFFIRMATIVE DEFENSE 15 36. This answering defendant did not and does not have a substantial percentage of the 16 market for any asbestos-containing products which allegedly caused the injuries and damages 17 claimed by Decedent. Furthermore, the asbestos-containing products which allegedly caused the 18 injuries and damages claimed by Decedent is not “fungible” in nature. As such, this answering 19 defendant may not be held liable to Plaintiff based upon any “market-share” or “enterprise” 20 theories of liability. 21 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 22 37. The Complaint, as amended now or in the future, and each and every claim and 23 cause of action alleged therein, to the extent they purport to state a cause of action under Sindell v. 24 Abbott Laboratories (1980) 26 Cal.3d. 588, cert. denied, 449 U.S. 912 (1980), is barred by 25 Plaintiff’s failure to join as defendants the manufacturers of a substantial share of the alleged 26 market which Plaintiffs allege this answering defendant is a member, and should it prove 27 impossible to identify the manufacturers of the products which comprise said alleged market, said 28 purported causes of action are barred by the fault of the Decedent, and their agents in making the - 10 - DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 identification of the manufacturers impossible. 2 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 3 38. This answering defendant denies it was a successor, successor in business, 4 successor in product line or portion thereof, assign, predecessor, predecessor in business, 5 predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially 6 owned by, or the whole or partial owner of, or member in any entity owning property, maintaining 7 premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling, 8 distributing, leasing, buying, offering for sale, selling, inspecting, servicing, developing, 9 constructing, installing, contracting for installation, repairing, marketing, warranting, re-branding, 10 manufacturing for others, packaging, or advertising any alleged asbestos-containing products or 11 other alleged asbestos-related activities, services, acts, or omissions. This answering defendant is 12 therefore not liable for any acts, whether they be active or passive, or omissions of any entities to 13 which this answering defendant is or may be alleged to be a successor-in-interest, predecessor-in- 14 interest, alter ego, or the like. 15 THIRTY-NINTH AFFIRMATIVE DEFENSE 16 39. This answering defendant alleges that at all times relevant to the matters alleged in 17 the Complaint, as amended now or in the future, upon information and belief, this answering 18 defendant did not control the details of Decedent’s work or that of Decedent’s employers. Control 19 of the premises was in the hands of others who directly controlled Decedent’s work. 20 FORTIETH AFFIRMATIVE DEFENSE 21 40. The Complaint, as amended now or in the future, and each and every claim and 22 cause of action alleged therein, are barred by the rule against splitting a cause of action. 23 FORTY-FIRST AFFIRMATIVE DEFENSE 24 41. The Complaint, as amended now or in the future, and each and every claim and 25 cause of action alleged therein, if based upon the lack of identification of the manufacturer of the 26 alleged injury-causing products, fails to state facts sufficient to constitute a cause of action against 27 this answering defendant in that Plaintiffs have asserted claims for which relief, if granted, would 28 contravene this answering defendant’s constitutional rights to substantive and procedural due - 11 - DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 process of law as preserved by the Fourteenth Amendment of the Constitution of the United States 2 and by Article 1, Section 7 of the Constitution of the State of California. 3 FORTY-SECOND AFFIRMATIVE DEFENSE 4 42. The Complaint, as amended now or in the future, and each and every claim and 5 cause of action alleged therein, if based upon the lack of identification of the manufacturer of the 6 alleged injury-causing products, fails to state facts sufficient to constitute a cause of action against 7 this answering defendant in that Plaintiffs have asserted claims for which relief, if granted, would 8 constitute an invalid burden by this Court on interstate commerce and a burden without resort to 9 less burdensome alternatives, in violation of the Commerce Clause, Article I, Section 8 of the 10 Constitution of the United States. 11 FORTY-THIRD AFFIRMATIVE DEFENSE 12 43. The Complaint, as amended now or in the future, and each and every claim and 13 cause of action alleged therein, are barred by Plaintiffs’ failure to timely join one or more parties 14 that are indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as 15 required by Code of Civil Procedure § 389. 16 FORTY-FOURTH AFFIRMATIVE DEFENSE 17 44. The Complaint, as amended now or in the future, and each and every claim and 18 cause of action alleged therein, are barred pursuant to the doctrines of res judicata and/or collateral 19 estoppel. 20 FORTY-FIFTH AFFIRMATIVE DEFENSE 21 45. The Complaint, as amended now or in the future, and each and every claim and 22 cause of action alleged therein, are barred because there is a defect and misjoinder of parties, 23 plaintiff and/or defendant. 24 FORTY-SIXTH AFFIRMATIVE DEFENSE 25 46. Plaintiffs’ claims are barred or preempted, in whole or in part, by federal law, 26 statutes, and regulations. 27 /// 28 /// - 12 - DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 FORTY-SEVENTH AFFIRMATIVE DEFENSE 2 47. This answering defendant presently lacks sufficient information to determine 3 whether additional, as yet unknown and unasserted, affirmative defenses exist. This answering 4 defendant reserves its right to assert additional defenses should they become available and are 5 deemed appropriate. 6 FORTY-EIGHTH AFFIRMATIVE DEFENSE 7 48. Defendant alleges that any product or products alleged by Decedent to have 8 caused his injuries were manufactured, installed, used or distributed in compliance with 9 specifications provided by third parties to Defendant and/or in compliance with all applicable 10 health and safety statutes and regulations. 11 FORTY-NINTH AFFIRMATIVE DEFENSE 12 49. Defendant alleges that Plaintiffs’ claim against Defendant is barred by the holding 13 of Privette v. Superior Court (1993) 5 Cal.4th 689. 14 FIFTIETH AFFIRMATIVE DEFENSE 15 50. Defendant alleges that all times relevant to the matters alleged in Plaintiffs’ 16 Complaint, Defendant had no duty to warn of the hazards of asbestos-containing products 17 manufactured or supplied by third parties within the meaning of O’Neil v. Crane Co., (2012) 53 18 Cal. 4th 335 and is not liable for any injury caused by a design defect in asbestos-containing 19 products manufactured or supplies by third parties. 20 FIFTY-FIRST AFFIRMATIVE DEFENSE 21 51. This answering defendant alleges that if it has purportedly been named or served 22 in this action as a Doe Defendant, Plaintiff’s attempt to do so is invalid in that Plaintiff knew or 23 should have known of the identity of this answering defendant and of Plaintiff’s alleged causes 24 of action against it at the time of the filing of the Complaint.. 25 RESERVATION OF RIGHTS 26 This answering defendant hereby reserves the right, upon completion of its investigation 27 and discovery, to amend this answer to include such additional defenses as may be appropriate. 28 /// - 13 - DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 PRAYER 2 WHEREFORE, this answering defendant prays as follows: 3 1. That Plaintiffs take nothing by reason of the operative Complaint on file; 4 2. That this answering defendant be awarded its costs and expenses of suit incurred; 5 3. That this answering defendant be awarded its reasonable attorneys’ fees; 6 4. That ifthis answering defendant is found liable the degree of responsibility and 7 liability for the resulting damages be determined and apportioned and off-set by 8 Plaintiff’s and/or other parties’ comparative fault or negligence in accordance with 9 Civil Code § 1431 et seq.; and, 10 5. For such other and further relief as the Court may deem just and proper. 11 12 Dated: December 1, 2020 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 13 14 By: /s/ Gardiner McKleroy 15 William M. Hake, Esq. Gardiner McKleroy, Esq. 16 Gayle Ketchie, Esq. Attorneys for Defendant 17 NASH ENGINEERING COMPANY 18 19 20 21 22 23 24 25 26 27 28 - 14 - DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT 2498731V.1 1 PROOF OF SERVICE 2 I, the undersigned, am employed in the county of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 525 Market Street, 3 17th Floor, San Francisco CA 94105. On the date indicated below, I caused to be served the following document(s) described as follows: 4 DEFENDANT NASH ENGINEERING COMPANY’S ANSWER TO PLAINTIFFS’ 5 PERSONAL INJURY COMPLAINT FOR DAMAGES (NEGLIGENCE; BREACH OF EXPRESS AND IMPLIED WARRANTIES; STRICT LIABILITY; PREMISES 6 OWNER/CONTRACTOR LIABILITY) 7 : PERSONAL SERVICE - I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below, and providing them to a 8 professional messenger service for service. (A confirmation by the messenger will be provided to our office after the documents have been delivered.) 9 : BY MAIL - As follows: I am “readily familiar” with the firm’s practice of collection 10 and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at San 11 Francisco, California in the ordinary course of business. The envelope was sealed and placed for collection and mailing on this date following our ordinary practices. I am 12 aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for 13 mailing in affidavit. 14 : OVERNIGHT MAIL - As follows: I am “readily familiar” with the firm’s practice of