Answer: JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al

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400

S80

ORNIA 24104

SAN FRANCISCO, CALIF

TELEPHONE (415) 362-

LEWIS GRISBGIS BISGAARD & SMITH LLP
ONE SANSOM STREET, SUIT

CONSTANCE MCNEIL, SB# 184526

E-Mail: mene @lbbsluaw.com ELECTRONICALLY
LEWIS BRISBOIS BISGAARD & SMITH LLP FILED
San Franovane c nik eye 94104 Superior Court of California
San Francisco, California vee,
Telephone: ( A] 5) 362-2580 County of San Francisco -
Facsimile: (415) 434-0882 | DEC 07 2006

GORDON PARK-LI, Cler

Attorneys for Defendant BY: VANESSA WU

PLANT INSULATION COMPANY Deputy Cler

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CASH NO. CGC 66-456569
JAMES RODAMER and NAKCY RODAMER,
DEFENDANT PLANT INSULATION
COMPANY’S ANSWER TO PLAINTIFFS’

COMPLAINT FOR PERSONAT INJURY

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Plaintiffs, )
AND LOSS OF CONSORTIUM -
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v. ASBESTOS
A.W. CHESTERTON COMPANY, et al., ACTION FILED: September 29, 2006

Defendants.

Defendant PLANT INSULATION COMPANY, (hercinaftcr "Defendant")for itself and
itself alone hereby answers Plaintiffs’ Complaint and each and every cause of action set forth
therein as follows:

1, Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies
generally the allegations of the Complaint and the whole thereof, and denies that Plaintiffs have
sustained damages in any sum or sums alleged or any sum at all.

2. Further answering Plaintiffs’ Complaint, this answering Defendant denies that
Plaintiffs sustained any injuries, damage or loss, if any, by reason of any act, omission or
negligence on the part of this answering Defendant, or any agent, servant or employee of this
answering Defendant.

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481 1-2679-7569.1 -l-

DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PLRSONAL INJURY AND LOSS OF CONSORTIUMLewis BRISBOIS BISGAARD & SMITH LLP

ONE SANSOME STREET, SUITE 1400

‘SAN FRANCISCO, CALIFORNA 4104

382-2860

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FIRST AFFIRMATIVE DEFENSE
(@ailure to State a Cause of Action)

3. The Complaint fails to state facts sufficient to constitute a cause of action against
this answering Defendant.

SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)

4, The Complaint, and every claim and cause of action alleged therein, is barred by
each applicable statute of limitations, including, but not limited to, California Code of Civil
Procedure sections 340.2 and 361.

THIRD AFFIRMATIVE DEFENSE
(Fault of Third Partics)

3. This answering Defendant is informed and believes and thercon alleges that the
injurics and damages of which Plaintiffs complain were proximately caused by or contributed to
by the acts of other persons, and/or other cntitics, over whom this answering Defendant had neither
control vor right of control, and said acts were an intervening and superseding cause of the injuries
and damages, if any, of which Plaintiffs complain, thus barring Plaintiffs from any recovery
against this answering Defendant.

FOURTH AFFIRMATIVE DEFENSE
(Comparative Negligence)

6. This answering Defendant alleges that if this Defendant is held to be negligent,
which negligence contributed as a proximate cause to Plaintiffs” injuries or damages, if any, that
Plaintiffs were also negligent, which negligence also contributed to Plaintiffs’ damages such that
any damages otherwise awarded to the Plaintiffs must be diminished in proportion to the degree of
fault attributable to Plaintiffs.

FIFTH AFFIRMATIVE DEFENSE
(Contribution and Indemnification)

7. This answering Defendant is informed and believes and therefore alleges that it is

entitled to a right of indemnification by apportionment and to a right of contribution from any

4811-2679-7560.1 2
DEFENDANT PEANT INSUI_ATION COMPANY'S ANSWER 10 PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUMLewis BRISBOIS BISGAARD & SMITH LLP

TELEPHONE (415) 362-2560,

person or entity whose negligence proximately contributed to the happening of the alleged injuries

of Plaintiffs if Plaintiffs should receive a verdict against this answering Defendant.

SIXTH Vv. NSE
(intervening Cause)
8. This answering Defendant is informed and believes and thereon alleges that if, in

fact, Plaintiffs were damaged in any manner whatsoever, that said damage was a direct and
proximate result of intervening and superseding actions and causes on the part of other persons or
entities, or acts of God, and not of this answering Defendant, and that such intervening and
superseding actions and causes bar recovery herein by Plaintiffs.
SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
9. This answering Defendant alleges that Plaintiffs’ damages, if any, should be
reduced of climinated as a resull of Plaintiffs’ failurc to-properly mitigate his damages.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to Join Proper Partics)
10. Plaintiffs have failed to join a party or parties necessary for a just adjudication of

this matter and have further omitted to state any reasons for such failure.

(Laches)

11. The delay of Plaintiffs in commencing suit is inexcusable and has resulted in
prejudice to this answering Defendant so substantial that the defense of laches bars Plaintiffs’
claims.

TEN’ \TIVE DEF!

(Assumption of the Risk)
12. Plaintiffs willingly, knowingly and voluntarily assumed the risk of the alleged
illnesses and injuries for which relief is sought in this matter.
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$811-2679-7560.1 3.

‘DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUMLewis BRISBOIS BISGAARD & SMITH LLP

1 ELEVENTH AFFIRMATIVE DEFENSE
(Release of Claims/Set-Off)
13. Plaintiffs have released, settled, entered into an accord and satisfaction or otherwise
compromised their claims herein, and accordingly, said claims are barred by operation of law;

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5|] alternatively, Plaintiffs have accepted compensation as partial settlement of those claims for
6] which this answering Defendant is entitled to a set-off.
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TWELFTH AFFIRMATIVE DEFENSE
(Waiver)
14, Plaintiffs have waived any and all claims which they seek to assert in this action.
10 THIRTEENTH AFFIRMATIVE DEFENSE
n (Estoppel)
12 15. Plaintiffs are estopped from asserting the claims for which relief is sought by way
23 a 13]| of Plaintiffs’ Complaint.
ge 8 a FOURTEENTI AFFIRMATIVE DEFENSE
; a 15 (Violation of Duc Process)
a ae 16 16. The causes of action asserled by Plaintiffs, whom admit their inability to identity
3% 17] the manufacturer or manufacturers of the products which allegedly caused injury, fail to state a

18 | claim upon which relief can be granted, or, if relief is granted, this answering Defendant's

19} Constitutional right to substantive and procedural due process of law would be contravened.

20 FIETEENTH AFFIRMATIVE DEFENSE
ai (Unjust Taking)
22 17. The causes of action asserted by Plaintiff, whom admit their inability to identify

23|| the manufacturer or manufacturers of the products which allegedly caused injury, fail to state a

24] claim upon which relief can be granted, or, if relief is granted, such relief would constitute a taking
25] of this answering Defendant's property for public use without just compensation, and would

26] constitute a violation of this Defendant's Constitutional rights.

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4811-2679-9560.1 -4-
DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PERSONAL INILRY AND LOSS OF CONSORTIUMLewis BRISBOIS BISGAARD & SMITH LLP

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SIXTEENTH AFFIRMATIVE DEFENSE

(Breach of Warranty)
18. Plaintiffs, whom admit their inability to identify the manufacturer or manufacturers
of the products which allegedly caused injury, never informed this answering Defendant, by
notification or otherwise, of any breach of express and/or implied warranties; consequently, his

claims of breach of express/or implied warranties against this Defendant are barred.

SEVEN ATIVE DEFE!
(Misuse of Product)

19. Atall times and places mentioned in Plaintiffs’ Complaint, Plaintiffs and/or other
persons used this answering Defendant's products, if indeed any were used, in an unreasonable
manner, not reasonably foreseeable to this Defendant, and for a purpose for which the products
were not intended, manufactured or designed.

EIGHTEENTH AFFIRMATIVE DEFENSE

(Modification of Product)

20. Atal times and places mentioned in Plaintiffs’ Complaint, Plaintiffs and/or other
persons, without this answering Defendant's knowledge and approval, re-designed, modified,
altered and used this Defendant's products, indced if any were used, contrary to instructions and
contrary to the custom and practice of the industry. This re-design, modification, alteration and
use so substantially changed the product's character that if there was a defect in the product --
which is specifically denied -- such defect resulted solely from the re-design, modification,
alteration, or other such treatment or change and not from any act or omission by this Defendant.
Therefore, said defect, if any, was the direct and proximate cause of the injuries and damages, if

any, that Plaintiffs allegedly suffered,

NINETEENTH AFFIRMATIVE DEFENSE
(Adequate Warnings)

21, This answering Defendant alleges that the product was not defective in that the
product was supplied with adequate warnings perlaining to dangerous propensities, if any, of the
product.

$811-2679-7569.1 -5-
DEFENDANT PANT INSULATION COMPANY'S ANSWER TO PLAINTIFIS COMPLAINT FOR
PERSONAL INILRY AND LOSS OF CONSORTIUMLEWIS BRISBOIS BISGAARD & SMITH LLP

1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Wo Breach of Duty)

3 22. This answering Defendant alleges that it did not breach any duty owed to Plaintiffs
4] because the product, when manufactured, distributed, and/or supplied, conformed to the state of
5] art, and because the then-current medical, scientific, and industrial knowledge, art, and practice

6|| was such that this Defendant did not know and could not have known that the product might pose

7] arisk of harm, if any, in normal and foreseeable use.

8 TWENTY-1 [VE DEFENSE
9 (No Causation)
10 23, This answering Defendant alleges that there is no causal relationship between any

11] injuries or damages allegedly sustained by Plaintifls, and any alleged wrongfal act by this

5 12) Defendant.
# 13 TWENTY-SECOND AFFIRMATIVE DEFENSE
i ‘ 14 (No Express/Implied Warranty)
383 1s 24, This answering Defendant alleges that it made no warrantics of'any kind, express or
3 3 i 16 implied, to Plaintiffs and that there is no relationship upon which a claim of implied warranty may
38 17] be based.

18 TWENTY-THIRD AFFIRMATIVE DEFENSE,

19 (No Privity)

20 25. This answering Defendant alleges that the cause of action for breach of warranty, if

21}) any, against this Defendant is barred because (a) there is no privity of contract between Plaintiffs
22|| and this Defendant, (b) Plaintiffs did not reasonably rely on the claimed warranty, if any, (c) the

23|| claims are based on an alleged warranty not expressed on the labeling or other material

24]| accompanied by the product, (4) Plaintifié failed to give the requisite timely notice to this
25] Defendant as to any purported breach of warranty, and (e) any warranty, if any, to Plaintiffs were
26 | expressly disclaimed by this Defendant.

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4811-2679-4569.1 -6-
DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUMLewis BRISBOIS BISGAARD & SMITH LLP

ONE SANSOME STREET, SUITE 1400,

‘SAN FRANCISCO, CALIFORNIA 94104

TELEPHONE (415) 962.2580,

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TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Worker's Compensation)

26. This answering Defendant alleges that at all times material herein, Plaintiffs were in
the course and scope of their employment and Plaintiffs and their employer were subject to the
provisions of the Worker’s Compensation Act of the State of Califomia; that certain sums have
been paid to, or on behalf of, Plaintiffs herein under the applicable provisions of the Labor Code;
that PlaintifYs’ employer and Plaintiffs’ co-employees were negligent and careless and that such
negligence and carelessness proximately contributed to and caused the alleged injuries to
Plaintiffs, if any; and that under the doctrine of Witt v. Jackson such negligence and carelessness
should reduce or eliminate any lien claim or complaint-intervention which may be made for
reimbursement of Worker's Compensation benefits paid to or on behalf of Plainti(¥s; and that the
full, or at least a proportionate, amount of Worker's Compensation benefits paid to, or on behalf
of, Plaintiffs should be deducted ftom any special damages award against this answering
Defendant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Labor Code § 3600 et seq.)
27, The court lacks subject matter jurisdiction over the matters alleged in the complaint
because the complaint and each alleged cause of action against this answering Defendant are
barred by the provisions of California Labor Code, Sections 3600, et seq.
‘TWENTY-SIXTH AFFIRMATIVE DEFENSE
(49 US.C.A. § 2071 et seq.)
28, Plaintiffs’ claims are preempted by the Federal Boiler Inspection Act, 49 U.S.C.A.
Sections 20701, et seq.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE,
(Federal Preemption)
29. — This answering Defendant asserts that all causes of action alleged against this

Defendant in the complaint are preempted by and under federal law.

4811-2679-7560.1 te
DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUMLEwss BRISBOIS BISGAARD & SMITH LLP

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Government Specifications)

30, This answering Defendant alleges that any and all products allegedly manufactured
or distributed by this Defendant were designed, manufactured, distributed and formulated in
accordance with United States Government specification, guidelines, and directives, and that all
causes of action in Plaintifis’ complaint are therefore barred by the federal government contractor
defense and the law of sovereign immunity.

TWENTY-NINTH AFFIRMATIVE DEFENSE
(Reservation of Additional Affirmative Defenses)

31, This answering Defendant presently has insufficient knowledge or information
upon which to form a belie('as to whether il may have additional, as yet unknown, affirmative
defenses, This answering Defendant reserves the right to asscrt additional affirmative defenses in
the event discovery indicates it would bc appropriate.

WHEREFORE, having fully answered Plaintiffs’ Complaint herein, this answering
Defendant prays for judgment as follows:

1, That Plaintiffs take nothing by said Complaint;

2. That this answering Defendant recover its costs of suit herein; and

3. For such other and further relief as this Court may deem just and proper.

DATED: December 7, 2006 LEWIS BRISBOIS BISGAARD & SMITH LLP

By 4/ Constance McNeil
Constance MeNeil
Attorneys for Defendant
PLANT INSULATION COMPANY

$81.2679-7569.1 -8-

DEFENDANT PLANT INSULATION COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
ERSONAL INJURY AND LOSS OF CONSORTIUMLewis BRrisBols BISGAARD & SMITH LLP

ONE SANSOVE STREET, SUITE 14a

James Rodamer and Nancy Rodamer y, Asbestos Defendants
San Francisco County Superior Court Case No. 456569

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO,

Tam 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 One Sansome Street, Suite 1400, San
Francisco, California 94104.

On December 7, 2006, I electronically served (E-Service) via LexisNexis File and Serve
pursuant to General Order No. 158, the following document described as:

DEFENDANT PLANT INSULATION COMPANY’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS

on all interested parties in this action by placing [X] a true copy [ ] the original thereof
enclosed in sealed envelopes addressed as follows:

Attomeys for Plaintiff:

BRAYTON PURCELL LLP
222 Rush Landing Road

P.O, Box 6169

Novato, California 94948
Telephone: (415) 898-1555
Facsimite: (415) 898-1247

‘The above document was transmitted by Lexis-Noxis E-Service and the transmission was
reported as complete and without error.

[X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.

Executed on December 7, 2006, at San Francisco, California.

/s/ Tyhera Payton
Tyhera Payton

4811.2679-7569.1,
‘DEFENDANT PLANT INSULATION COMPANY S ANSWER TO PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM