Answer: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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Preview
                                Becherer
Kannett &
Schweitzer

1288
Povo! St.
Emeryville, CA.
94608
510-658-3600

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Mark S. Kannett (SB #104572)
Angus M. MacLeod (SB #99888)

Stephanie L. Smith (SB #169337) ELECTRONICALLY
BECHERER KANNETT & SCHWEITZER FILED
1255 Powell Street Superior Court of California,
Emeryville, CA 94608 County of San Francisco
Telephone: (510) 658-3600 JAN 17 2014
Facsimile: (510) 658-1151 oclerk of the Court
Email: ssmith@bkscal.com Deputy Clerk

Attomeys for Defendant
Morton International, Inc.,
a Rohm and Haas Company

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY ) CASENO.: CGC-13-276217
KARIDIS-KOEPKE, )
) ANSWER TO COMPLAINT FOR
Plaintiffs, ) PERSONAL INJURIES
)
VS. )
)
FORD MOTOR COMPANY, et al., }
)
Defendants. )
)

COMES NOW defendant, MORTON INTERNATIONAL, INC., a Rohm and Haas
Company, which by reorganization assumed certain commercial business obligations of
MORTON THIOKOL, INC., a successor in interest to former THIOKOL CORP. and its former
Friction Division, for itself and for no other defendant, and answers the Complaint for Personal
Injuries (“complaint”) of plaintiffs filed herein as follows:

NOTE: As used in this answer, “plaintiff” includes multiple plaintiffs, plaintiffs
spouse, as applicable to actions for loss of consortium.

1 This answering defendant denies each and every, all and singular, generally and

specifically, the allegations of the Complaint, and in this connection, defendant denies that

ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

rss
Powel St.
Emeryville, CA
94608
510-658.3600

plaintiff has been injured in any sum or sums by reason of any act or omission of this defendant.

2. As a First, Separate Affirmative Defense to the Complaint and each cause of
action thereof, this answering defendant alleges that plaintiffs action is barred by the Statute of
Limitations set forth in California Code of Civil Procedure Sections 338(d), 340, and 340.2(a).

3. As a Second, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this defendant alleges that plaintiff was negligent and careless in and about the
matters alleged in the Complaint, and that said negligence and carelessness on said plaintiff's
own part proximately caused the injuries, loss and damage complained of, if any there were, and
eliminates or comparatively reduces this answering defendant’s liability, if any.

4, As a Third, Separate Affirmative Defense to the Complaint and each cause of
action thereof, defendant alleges on information and belief that plaintiff is or was entitled to and
did or will receive worker’s compensation benefits on account of the injuries giving rise to the
Complaint; each of the employers of plaintiff was negligent regarding the matters alleged in the
Complaint; said negligence proximately caused or contributed to the injuries or damages alleged
in the Complaint, and therefore, any judgment rendered to plaintiff should be reduced by the
amount of all such benefits paid or to be paid to or on behalf of plaintiff and each said employer
should be barred from recovery by lien or otherwise in this matter.

5. As a Fourth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant alleges that plaintiff has failed to state facts sufficient to
constitute a cause of action against this defendant.

6. As a Fifth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant states that plaintiff or his employers abused, misused,
modified and/or altered the products allegedly involved and this abuse, misuse, modification
and/or alteration proximately caused plaintiff's injuries or damages.

7. As a Sixth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant states that the negligence of plaintiffs employers or
others proximately cause or contributed to the plaintiff's injuries or damages; said negligence is

imputed to plaintiff and bars or reduces plaintiff’s recovery herein.
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

1255
Powell St
Timesyvitle, CA.
94608
S10.688-3600

8. As a Seventh, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant states that plaintiff and, or plaintiff's employers or
others knowingly and voluntarily assumed the risks with regard to the matters alleged in
plaintiffs Complaint; said assumption of risks is imputed to plaintiff and bars any recovery by
plaintiff.

9. As an Eighth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant alleges that plaintiff is barred from any recovery from
this defendant by the provisions of California Labor Code § 3600, et seq.

10. As a Ninth, Separate Affirmative Defense of the Complaint, and each cause of
action thereof, this answering defendant alleges that plaintiff, without good cause, unreasonably
delayed bringing this action and is, therefore, barred by laches from any recovery.

1l. Asa Tenth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant alleges that plaintiff is under an obligation to mitigate
damages and has failed to do so.

12. As an Eleventh, Separate Affirmative Defense to the Complaint, and each cause
of action thereof, this answering defendant alleges that its liability, if any, is small in proportion
to that of others, and plaintiff should be limited in seeking recovery to the proportion of alleged
damages or injuries for which this defendant may be found liable.

13. Asa Twelfth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant alleges that plaintiff, by and through his conduct,
consented to defendant’s alleged acts and is therefore barred from recovery herein.

14. Asa Thirteenth, Separate Affirmative Defense to the Complaint, and each cause
of action thereof, this answering defendant alleges that plaintiff knowingly, voluntarily and
unreasonably assumed the risks and consequences of his actions and was fully informed and was
aware of any and all circumstances surrounding the alleged incidents resulting in the alleged
injuries and damages claimed in the Complaint and causes of action therein.

15. As a Fourteenth, Separate Affirmative Defense to the Complaint, and each cause

of action thereof, this answering defendant states that if liability is assessed against this
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA

99608
510-658-3600

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defendant, this defendant shall be liable only for the amount of non-economic damages allocated
to it in direct proportion to the percentage of fault assigned to it by the trier of fact, and requests
that if liability is found, a separate judgment be rendered against this defendant for that amount.
Civil Code Section § 1431 et seq.

16. Asa Fifteenth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant states that plaintiff previously has filed, maintained and
concluded a separate action based upon the same primary right as is asserted here, and that the
instant action therefore cannot be maintained against this defendant.

17. As a Sixteenth, Separate Affirmative Defense to the Complaint, and each cause of
action thereof, this answering defendant states that plaintiffs cause of action alleging liability of
this defendant according to a market share theory fails to state a claim upon which relief can be
granted because brake products in general, and this defendant’s products in particular, are not
fungible; plaintiff cannot identify, much less establish, the relevant market for the products to
which plaintiff was allegedly exposed; and plaintiff has failed to join in this action a substantial
share of the manufacturers of those products which comprise the relevant market.

18. As a Seventeenth, Separate Affirmative Defense to the plaintiff's Complaint, and
each cause of action thereof, this answering defendant alleges that plaintiff is barred from
recovery in that all products produced by Thiokol Corporation were in conformity with the
existing state-of-the-art, and as a result, these products were not defective in any manner.

19, As an Eighteenth, Separate Affirmative Defense to the plaintiff's Complaint, and
each cause of action thereof, this answering defendant states that it did not participate in a
conspiracy or common plan designed to commit a tortious act.

20. As a Nineteenth, Separate Affirmative Defense to the plaintiff's Complaint, and
each cause of action thereof, this answering defendant states that it did not negligently participate

in a common plan designed to commit a tortious act.

21. As a Twentieth, Separate Affirmative Defense to the plaintiff's Complaint, and
each cause of action thereof, this answering defendant states that it did not participate or actively

take part in the furtherance of the alleged conspiracy and did not cooperate, lend aid or
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

510.658.3600

x

encouragement, to any alleged wrongdoers, and did not adopt or ratify the alleged tortious acts of
others,

22. Asa Twenty-First, Separate Affirmative Defense to the plaintiff’s Complaint, and
each cause of action thereof, this answering defendant contends that under applicabie statutory
and case law of the United States, its territories, commonwealths, and states, including the State
of Califomia, jurisdictions and states other than the State of California have a greater interest in
the subject matter of this action, and the instant action therefore should be dismissed, or the
pertinent laws of such other jurisdictions, including their laws of tort and product liability, and
their statutes of limitations and of repose, should be applied by this court in this action.

23. As a Twenty-Second, Separate Affirmative Defense to the plaintiffs Complaint,
and each cause of action thereof, this answering defendant states that plaintiff does not have
standing to bring the subject action in this court, and that the instant action therefore should be
dismissed.

24. As a Twenty-Third, Separate Affirmative Defense to the plaintiff's Complaint,
and each cause of action thereof, this answering defendant states that the facts allegedly giving
rise to the causes of action in the complaint occurred elsewhere other than the State of California,
plaintiffs are not residents of California, witnesses as to matters pertaining to liability and
damages are located other than in California, and that for the convenience of the parties and in
the interests of justice, the case should be stayed pending transfer to a jurisdiction other than
California, and dismissed.

25. As a Twenty-Fourth, Separate Affirmative Defense to the plaintiff's Complaint,
and each cause of action thereof, this answering defendant contends that the action is barred in
whole or in part because this defendant reasonably relied upon the state of the medical and
scientific are at the time its products were allegedly produced.

26. Asa Twenty-Fifth, Separate Affirmative Defense to the plaintiffs Complaint, and
each cause of action thereof, this answering defendant contends that the state of the medical and
scientific at all times pertinent to this defendant’s involvement with any asbestos-containing

products was such that this defendant neither knew, nor should have known, that its products
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

1285

Powell St
Emeryville, CA
‘94608
$10-658-3500

presented any foreseeable risk of harm to plaintiff in the normal and expected use of the
products.

27, Asa Twenty-Sixth, Separate Affirmative Defense to the plaintiff's Complaint and
each cause of action thereof, this answering defendant contends that the employers of plaintiff
were, upon information and belief, so experienced and sophisticated that no duty to warn existed
and there was no duty to warn concerning products manufactured or sole by others.

28. Asa Twenty-Seventh, Separate Affirmative Defense to the plaintiffs Complaint,
and each cause of action thereof, this answering defendant contends that there should be no
recovery against this defendant because of any failure to warn or inadequacy of warning,
because, upon information and belief, at all times pertinent to plaintiff's claims, plaintiff was
possessed of or should have been possessed of good and adequate knowledge that negated any
need for further warning. Alternatively, plaintiff was required to follow specific written safety
procedures as established by his employers that negated the need or requirement for any such
warning.

29, As a Twenty-Eighth, Separate Affirmative Defense to the plaintiff's Complaint,
this answering defendant contends the claim for punitive damages violates the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments of the Constitution of the United States and the
Constitution of the State of California on the following grounds:

a. It is a violation of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment of the United States Constitution to impose punitive damages which are
penal in nature, against a civil defendant upon the plaintiff's satisfying a burden of
proof which is less than the “beyond a reasonable doubt” burden of proof required in
criminal cases;

b. The procedures pursuant to which punitive damages are awarded may result in the
award of joint and several judgments against multiple defendants for different alleged |"
acts of wrongdoing, which infringes the Due Process and Equal Protection Clauses of
the Fourteenth Amendment of the United States Constitution and the California

Constitution;
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA

94608
510-658-3600

c. The procedures to which punitive damage are awarded fail to provide a reasonable
limit of the amount of the award against defendant in violation of the Due Process
and Equal Protection Clauses of the Fourteenth Amendment of the United States
Constitution.

d. The procedures to which punitive damages are awarded fail to provide specific
standards for the amount of the award of punitive damages in violation of the Due
Process and Equal Protection Clauses of the Fourteenth Amendment of the United
States Constitution.

ce. The procedures pursuant to which punitive damages are awarded result in the
imposition of disparate penalties for the same or similar acts and, thus, violate the
Due Process and Equal Protection Clauses of the Fourteenth Amendment of the
United States Constitution.

f. The procedures to which punitive damages are awarded permit the imposition of
punitive damages in excess of the maximum criminal fine for the same or similar
conduct, which thereby infringes the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the United States Constitution.

g. The procedures pursuant to which punitive damages are awarded permit the
imposition of excessive fines in violation of the Eighth Amendment of the United
States Constitution.

h. An award of punitive damages to plaintiffs in this case would constitute a deprivation
of property without due process under the Fifth and Fourteenth Amendments to the
United States Constitution.

30. As a Twenty-Ninth, Separate Affirmative Defense to the plaintiff's Complaint,
this answering defendant contends that the plaintiff was a “sophisticated user” of asbestos-
containing products and knew or should have known of the hazards, if any, of exposure to
asbestos-containing products, and plaintiff therefore is precluded from recovery from this
defendant in this action, under the ruling of the California Supreme Court in Johnson vy.

American Standard, Inc. (2008) 43 Cal.4" 56.
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ANSWER TO COMPLAINT FOR PERSONAL INJURIESBecherer
Kannett &
Schweitzer

155

Powell St.
Emeryville; CA
94608
510-658-3600

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31. As.a Thirtieth, Separate Affirmative Defense: to the plaintiffs Complaint, this
answering defendant contends that each of plaintiff's causes of action has arisen in another State,
or in a foreign country, and by the laws thereof plaintiff's action thereon cannot there be
maintained against this defendant by reason of the lapse of time, and therefore, plaintiff's claims
are barred by:section 361 of the Code of Civil Procedure.

32, Asa Thirty-First, Separate Affirmative Defense to each of the purported fraud
and conspiracy to defraud claims in plaintiff's Complaint, including the Fourth Cause of Action
and Sixth Cause.of Action, this answering defendant contends. that such claims are not'pled with
requisite specificity to state a cause of action for fraud. Furthermore, this answering defendant
contends that each of the purported fraud and conspiracy to defraud claims in plaintiffs
Complaint, including the Fourth Cause of Action and Sixth Cause of Action, are not pled in

conformity. with the laws of this state:for the pleading of a claim for fraud.

WHEREFORE, defendant prays that plaintiff take nothing, that this defendant be granted

costs of suit, and for such further relief as the Court may deem just and proper.

Dated: January 17, 2014 BECHERER KANNETT & SCHWEITZER

By: Mod. oe

Mark §..Kannett ~

Angus M. MacLeod

Stephanie L. Smith

Attorneys. for. Defendant

Morton International, Inc.,.a Rohm and Haas Company

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ANSWER TO COMPLAINT FOR PERSONAL INJURIES23

Becherer
Kannett & 4
Schweitzer

25
1255 Powell St.
Tstossisein 26
F-510-658-3600

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Harold Koepke and Nancy Karidis-Koepke v. Ford Motor Company, et al.
San Francisco County Superior Court Case No.: CGC 13 276217

L, Bonnie L. Williams, declare that | am, and was at the time of service of the documents
herein teferred to, over the age of 18 years, and not a party to the action; and I am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On January 17, 2014, I electronically served the document(s) via LexisNexis File &
ServeXpress described as:

ANSWER TO COMPLAINT FOR PERSONAL INJURIES

on the recipients designated on the Transmission, Receipt located on the LexisNexis File &
ServeXpress website.

I declare under penalty ef perjury pursuant to the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on January 17, 2014, at
Emeryville, California.

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION