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GABRIEL A. JACKSON, State Bar No. 98119
C.J. MANOLT, State Bar No, 147342
2 | JACKSON & WALLACE LLP ELECTRONICALLY
55 Francisco Street, 6th Floor FILED
3 San Francisco. CA 94133 Superior Court of California,
Tel: 415 982.6300 County of San Francisco
4 Fax: 415.982.6700 FEB 05 2007
5 | Attorneys for Defendant GORDON PA R el rk
BUFFALO PUMPS, INC. Deputy Clark
6
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10
11 | CHARLLUS BOUDREAUX and Case No. 274029
DEBORAIT BOUDREAUX,
2 ANSWER OF DEFENDANT BUFFALO
Plaintiff, PUMPS, INC. TO UNVERIFIED
\3 COMPLAINT FOR PERSONAL INJURY -
¥, ASBESTOS
14
ADVOCATE MINES, LTD., et al.
LS
Delendants,
lo
l?
DEFENDANT BUFFALO PUMPS, INC., answers the unverified Complaint for Personal
1&
Injury - Asbestos ("Complaint") on file hercin as follows:
19
As an answer by DEFENDANT BUFFALO PUMPS, INC.., to plaintiffs Complaint, a
20
denial is made to each and every allegation in the Complaint, and further denial is made that any
21
loss, damage or injury, of any kind or character, in any sum or amount, has been suffered by
22
plaintiff by reason of any acts or act, omission or omissions, fault, carelessness, or negligence on
23
this defendant's part or on the part of any of its agents, servants or employees.
24
AS AND FOR A FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
25
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, tt is alleged that the complaint
26
fails to state facts sufficient to constitute a cause of action against this answering defendant.
a AM
28
Jacnd0n & Wallace 1281422 . l
L1.P See
SANTRANCISCD ~ ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT YOR PERSONAL INJURY28
Peasoné Waunaes
saeco
AS AND FOR A SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THR.
COMPLAINT, AND EACH CAUSE OF ACTION THEREOK, it is alleged that any and all
events and happenings in connection with the allegations contained in plaintiff's Complaint and
the resulting injuries and damages, if any, referred to therein, were legally caused and contributed
to by the negligence, carelessness, and fault of the plaintiff, thereby barring or proportionately
reducing plaintiffs recovery herein,
AS AND FOR A THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff was
aware of the potential risks and hazards involved in the undertaking in which he was engaged,
and knowing these things, did freely, voluntarily, and/or expressly consent to assume the risks
and hazards incident to said operations, acts, and conduct, (hereby legally causing the injuries and
damages, if any, complaint of by plaintiff, and plaintiff are thereby barred from recovery herein.
AS AND FOR A FOURTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND FACH CAUSE Ol’ ACTION TIIEREOF, it is alleged that plaintiff
acknowledged, ratified, consented to, and acquiesced in the alleged acts, onnissions or fault, if
any, of this answering defendant, thus barring plaintiff from any relief as prayed for herein,
AS AND FOR A FIFTIL, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's action,
and each alleged cause of action, is barred by the applicable statute of limitations, stated in Park
Il, Title 2, Chapter 3 of the Code of Civil Procedure, beginning with Section 335 and continuing
through 349.4, and more particularly, but not limited to Section 340.2.
AS AND FOR A SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any loss, injury
or damage to plaintiff was proximately caused or contributed to by the negligent or other tortuous
acts, omissions, conduct or products of persons, entities or parties other than this answering
defendant, and that each, and all economic damages recovered by plaintiff against this defendant,
ifany, must be offset by a proportionate ammount of the settlement plaintiff has reached with all
other persons, entities or partics.
waeeze 2
ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28
Tacasong Watzact
AS AND FOR A SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO TIIE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff is
barred from recovery herein by virtue of the application of the doctrine of laches.
AS AND FOR A EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the Court lacks
subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and
each alleged cause of action against defendant is barred by the provisions of California Labor
Code Section 3600 et seq.
AS AND FOR A NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any loss, injury,
‘or damage, if any, incurred by plaintiff was the result of superseding or intervening causes arising
from the fault of other parties which defendant ncither controlled nor had the right to control, and
that said loss, injury or damage was not proximately or legally caused by any act, omission, or
other conduct of defendant.
AS AND POR A TENTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND FACH CAUSE OF ACTION HEREOF, it is alleged that if defendant has
purportedly been named or served in this action as a Doe defendant, such eflort by plaintiff is
invalid on the grounds that plaintiff knew, or should have known, of the identity of defendant and
of their alleged causes of action against defendant at the time of the filing of the Complaint.
AS AND FOR AN ELEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOP, it is alleged that if plaintiff
sustained any injury of illness attributable to the use of any product manufactured, sold or
distributed by defendant, which allegations are expressly denied, the injuries were solely caused
by and attributable to the unreasonable and improper use which was made of said products, and
each of them,
AS AND FOR A TWELFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, it is alleged that plaintiff was
advised, informed, and warned of any potential hazards and/or dangers, if any there were,
neve 3
"ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28
Jaco Watace
associated with the normal or foresecable use, handling. and storage of the products, substances,
and equipment described in the Complaint.
AS AND FOR A THIRTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO.
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the
products, substances, and equipment described in the Complaint were materially altered or
changed by a party or parties other than, and without the permission of, this answering defendant,
its employees, servants, or other agents, and such alteration or change created the alleged defect,
if any, which was the legal cause of plaintif!’s injuries or damages, if any.
AS AND FOR A FOURTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the
products, substances, and equipment referred to in the Complaint were properly designed and
manufactured, and sate for the purpose intended. Said products, substances, and equipment were
modified, altered, misused, abused and/or improperly maintained by plaintiff or others, and said
conduct was not reasonably foreseeable to defendant and proximately causcd or contributed to the
injuries, losses, and damages complained of, if any there were, thus barring plaintif?s recovery
herein.
AS AND VOR A FIFTEENTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE,
COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff failed to
mitigate his damages, if any, in that he failed to use reasonable diligence in caring for his injuries
and reasonable means to prevent their aggravation or to accomplish their healing.
AS AND FOR A SIXTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any exposure of
plaintiff to products manufactured, sold or distributed by this defendant was so minimal as to be
insufficient to establish by a reasonable degree of probability that any such product caused any
alleged injury, damage, or loss to plaintiff,
AS AND FOR A SEVENTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
‘THE COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, it is alleged that any
products manufactured, sold or distributed by this defendant were not a substantial factor in
1781422, 4
"ANSWER OF BUFFALO PUMPS, INC. 10 UNVERIFIED COMPLAINT FOR PERSONAL INTURY28
Jerson 6 Wanna
bringing about the injuries and damages complained of by plaintiff, and, therefore, this defendant
may not beheld liable to plaintiff as alloged.
AS AND FOR A EIGHTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the state of
the medical, scientific, and industrial knowledge and practice was at all material times such that
defendant neither breached any alleged duty owed plaintiff, nor knew nor could have known that
is product(s) presented a foreseeable risk of harm to plaintiff in the normal and expected use of
such product(s).
AS AND FOR A NINETEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any
products, substances, or equipment assembled, formulated, sold or distributed by this answering
defendant were made consistent with the state of the art applicable to said products, substances, or
equipment at the time of their assembly, sale, formulation, or distribution.
AS AND FOR A ‘TWENTIETI, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that if this
defendant is responsible to plaintiff, which responsibility is expressly denied, this defendant shal]
‘be liable to plaintisf only for the amount of non-economic damages allocated to this defendant in
direct proportion to this defendant's percentage of fault, if any, as required by Civil Code Section
1431.1 ef seg.
AS AND FOR A TWENTY-FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that at the time
and place of the happening of the occurrences and injuries alleged in the Complaint, and all times
material thereto, plaintiff was employed by various employers, the names of which are unknown
to this defendant, and working within the course and scope of his employment and/or
employments. Said employer and/or employers and plaintiff were subject to the provisions of the
Workers' Compensation Act of the State of California and plaintiff was entitled to receive
workers’ compensation benefits from his employers. Certain sums have becn paid to or on behalf
of plaintiff herein under the applicable provisions of the Labor Code of the Stale of Calilornia.
1281422 5
“ANSWER OF BUFFALO PUMPS, INC. TO UNVERIIED COMPLAINT FOR PERSONAL INJURY28
[scESON S WaLacE
Said employer and‘or employers and each of them were negligent, careless, and at fault in and
about the matters referred to in the Complaint and such negligence, carelessness, and fault
proximately and concurrently contributed to and caused the happening of the incidents
complained of by plaintiff, if any there were, By these premises, any judgment rendered in favor
of plaintiff herein must be reduced by any benefits or payment made or to be made to plaintiff's
employer's or employers’ compensation carrier under the authority of Witt vs. Jackson, 57 Cal.2d
57 (1961).
AS AND FOR A TWENTY-SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE
TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the
plaintifi’s employer or employers, by reason of the advice, information, warnings and use,
handling, and storage information given to them, and by reason of their own long standing and
continuous experience with the products, substances, and equipment referred to in the Complaint,
are and were sophisticated users, handlers, and storers of any and all such produets, substances,
and equipment, and thereby acquired a separate and affirmative duty to warn, advise, and inform
plaintiff of any potential harmful effects from the mishandling, misstorage, and/or misuse of the
subject property, if any. Said employer failed to so wam plaintifand thereby breached said duty,
and said failure and breach did directly and proximately cause all damages, injuries, and losses
complained of, if any there were.
AS AND FOR A TWENTY-THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO
‘THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that at all time
relative to matters in the Complaint, all of plaintiff's employers were sophisticated users of
asbestos-containing products, and said employer's negligence in providing the product to their
employees in a negligent, careless, and reckless manner was a superseding and intervening cause
of plaintiffs injuries, if any there were.
AS AND FOR A TWENTY-FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE
TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that as
between plaintiff and defendant, the law applicable to this action is the law as it existed during the
period this defendant engaged, if at all, in the manufacture, assembly, sale, or distribution of
asian 6
"ANSWER OF BUFFALO PUMBS, INC. TO UN VERIMED COMPLAINT FOR PERSONAL INJURY28
cnoson 6 Wautace
savenanosen
asbostos-containing products to which the plaintiff claims exposure. It is unlawful, inequitable,
and in violation of defendant's contractual, statutory, and constitutional rights to apply prineiples
of law other than or in a manner different from those which existed for the period in which
defendant manufactured, assembled, sold, or distributed products to which plaintiff claims
exposure.
AS AND FOR A TWENTY-FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, itis alleged that defendant
denies any and all liability to the extent that plaintiff asserts defendant's alleged liability in a
successor business, successor in product line, or a portion thereof, assign, predecessor,
predecessor in business, predecessor in product line, or a portion thereof; parent, alter ago,
subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an entity
research, studying, manufacturing, fabricating, designing, labeling, assembling, distributing,
teasing, buying, offering for sale, selling, inspecting, servicing, installing contracting, or
installation, ropairing, marketing, warranting, re-branding, manufacturing for olhers, packaging
and advertising products conlaining a cortain substance, the generic name of which is asbestos.
AS AND FOR A ‘TWENTY-SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
‘THE COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, itis alleged that plaintiffs
alleged cause of action seeking punitive damages against his defendant does not state facts
sufficient to constitute a cause of action against this answering defendant.
AS AND FOR A TWENTY-SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE
TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the
causes of action asserted herein by plaintiff fail to state facts sufficient to constitute a cause of
action in that plaintiff has asserted claims of punitive damages which, if granted, would violate
the prohibition against laws impairing the obligation of contracts set forth in Article I, Section 10,
of the United States Constitution.
AS AND FOR A TWENTY-EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE
TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that
plaintiff's claim for punitive or exemplary damages, if any, is barred by the due process clause of
1281422, 7
ANSWER OF BUFFALO PUMPS, INC, TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYCea Aw ww
28
Jpeasoné Waunace
the Fifth and Fourteenth Amendments to the United States Constitution.
AS AND FOR A TWENTY-NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO
THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's
claim for punitive or exemplary damages, if any, alleged by plaintiff is barred by the proscription
of the Eighth Amendment to the United States Constitution, as applied to the States through the
Fourteen Amendment, prohibiting the imposition of excessive fines.
AS AND FOR A THIRTIETH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, Plaintiff's action, and each
alleged cause of action, is barred by the terms and provisions of California Code of Civil
Procedure section 361.
AS AND FOR A THIRTY-FIRS
r, SEPARATE, AND AFFIRMATIVE DEFENSE TO
‘THE COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, Defendant alleges that its
products, if any, were manufactured, produced, supplied, sold and distributed in mandatory
conformity with specifications promulgated by the United States Government under its war
powers, as set forth in the United States Constitution, and that any recovery by plaintiff(s) on the
Complaint on file herein is barred in consequence of the exercise of those sovercign powers.
WHEREFORE, this answering defendant prays that plaintifY lake nothing by virtue of this,
Complaint on file herein, that his Complaint be dismissed and that defendant be awarded its costs
of suit herein incurred, and for any other and further relief as the Court may deem proper.
Dated: February oo » 2007 JACKSON & WALLACE LLP
py: CY 0 Tk,
C.J. MANOLI
Attomeys for Defendant
BUFFALO PUMPS, INC.
vse 8
"ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAT. INJURY28
season 6 warrace
Charles and Deborah Boudreaux, v. Advocate Mines LTD., et al. SE.S.C #274029
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San
Francisco County, California. [am over the age of eighteen years and not a party to the within-
entitled action, My business address is 55 Francisco Street, 6th Floor, San Francisco, California
94133. On February 5 _, 2007, 1 served the following document(s)
ANSWER OF DEFENDANT BUFFALO PUMPS, INC. TO
UNVERIFIED COMPLAINT FOR PERSONAL INJURY -
ASBESTOS
electronically via LexisNexis File & Serve on:
BARON & BUDD P.C.
9465 Wilshire Blvd., Ste #460
Beverly Hills CA 90212
and all other recipionts designated on the Transaction Receipt located on the LexisNexis File &
Serve website. J declare under penalty of perjury pursuant to the laws of the State of California
that the foregoing is true and correct and was executed on February _5_, 2007, at San
Francisco, California.
1281422
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eH GABRIEL A. JACKSON, State Bar No. 98119 C.J. MANOLT, State Bar No, 147342 2 | JACKSON & WALLACE LLP ELECTRONICALLY 55 Francisco Street, 6th Floor FILED 3 San Francisco. CA 94133 Superior Court of California, Tel: 415 982.6300 County of San Francisco 4 Fax: 415.982.6700 FEB 05 2007 5 | Attorneys for Defendant GORDON PA R el rk BUFFALO PUMPS, INC. Deputy Clark 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 11 | CHARLLUS BOUDREAUX and Case No. 274029 DEBORAIT BOUDREAUX, 2 ANSWER OF DEFENDANT BUFFALO Plaintiff, PUMPS, INC. TO UNVERIFIED \3 COMPLAINT FOR PERSONAL INJURY - ¥, ASBESTOS 14 ADVOCATE MINES, LTD., et al. LS Delendants, lo l? DEFENDANT BUFFALO PUMPS, INC., answers the unverified Complaint for Personal 1& Injury - Asbestos ("Complaint") on file hercin as follows: 19 As an answer by DEFENDANT BUFFALO PUMPS, INC.., to plaintiffs Complaint, a 20 denial is made to each and every allegation in the Complaint, and further denial is made that any 21 loss, damage or injury, of any kind or character, in any sum or amount, has been suffered by 22 plaintiff by reason of any acts or act, omission or omissions, fault, carelessness, or negligence on 23 this defendant's part or on the part of any of its agents, servants or employees. 24 AS AND FOR A FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE 25 COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, tt is alleged that the complaint 26 fails to state facts sufficient to constitute a cause of action against this answering defendant. a AM 28 Jacnd0n & Wallace 1281422 . l L1.P See SANTRANCISCD ~ ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT YOR PERSONAL INJURY28 Peasoné Waunaes saeco AS AND FOR A SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THR. COMPLAINT, AND EACH CAUSE OF ACTION THEREOK, it is alleged that any and all events and happenings in connection with the allegations contained in plaintiff's Complaint and the resulting injuries and damages, if any, referred to therein, were legally caused and contributed to by the negligence, carelessness, and fault of the plaintiff, thereby barring or proportionately reducing plaintiffs recovery herein, AS AND FOR A THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff was aware of the potential risks and hazards involved in the undertaking in which he was engaged, and knowing these things, did freely, voluntarily, and/or expressly consent to assume the risks and hazards incident to said operations, acts, and conduct, (hereby legally causing the injuries and damages, if any, complaint of by plaintiff, and plaintiff are thereby barred from recovery herein. AS AND FOR A FOURTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND FACH CAUSE Ol’ ACTION TIIEREOF, it is alleged that plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts, onnissions or fault, if any, of this answering defendant, thus barring plaintiff from any relief as prayed for herein, AS AND FOR A FIFTIL, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's action, and each alleged cause of action, is barred by the applicable statute of limitations, stated in Park Il, Title 2, Chapter 3 of the Code of Civil Procedure, beginning with Section 335 and continuing through 349.4, and more particularly, but not limited to Section 340.2. AS AND FOR A SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any loss, injury or damage to plaintiff was proximately caused or contributed to by the negligent or other tortuous acts, omissions, conduct or products of persons, entities or parties other than this answering defendant, and that each, and all economic damages recovered by plaintiff against this defendant, ifany, must be offset by a proportionate ammount of the settlement plaintiff has reached with all other persons, entities or partics. waeeze 2 ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28 Tacasong Watzact AS AND FOR A SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO TIIE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff is barred from recovery herein by virtue of the application of the doctrine of laches. AS AND FOR A EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the Court lacks subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and each alleged cause of action against defendant is barred by the provisions of California Labor Code Section 3600 et seq. AS AND FOR A NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any loss, injury, ‘or damage, if any, incurred by plaintiff was the result of superseding or intervening causes arising from the fault of other parties which defendant ncither controlled nor had the right to control, and that said loss, injury or damage was not proximately or legally caused by any act, omission, or other conduct of defendant. AS AND POR A TENTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND FACH CAUSE OF ACTION HEREOF, it is alleged that if defendant has purportedly been named or served in this action as a Doe defendant, such eflort by plaintiff is invalid on the grounds that plaintiff knew, or should have known, of the identity of defendant and of their alleged causes of action against defendant at the time of the filing of the Complaint. AS AND FOR AN ELEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOP, it is alleged that if plaintiff sustained any injury of illness attributable to the use of any product manufactured, sold or distributed by defendant, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable and improper use which was made of said products, and each of them, AS AND FOR A TWELFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, it is alleged that plaintiff was advised, informed, and warned of any potential hazards and/or dangers, if any there were, neve 3 "ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28 Jaco Watace associated with the normal or foresecable use, handling. and storage of the products, substances, and equipment described in the Complaint. AS AND FOR A THIRTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO. THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the products, substances, and equipment described in the Complaint were materially altered or changed by a party or parties other than, and without the permission of, this answering defendant, its employees, servants, or other agents, and such alteration or change created the alleged defect, if any, which was the legal cause of plaintif!’s injuries or damages, if any. AS AND FOR A FOURTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the products, substances, and equipment referred to in the Complaint were properly designed and manufactured, and sate for the purpose intended. Said products, substances, and equipment were modified, altered, misused, abused and/or improperly maintained by plaintiff or others, and said conduct was not reasonably foreseeable to defendant and proximately causcd or contributed to the injuries, losses, and damages complained of, if any there were, thus barring plaintif?s recovery herein. AS AND VOR A FIFTEENTII, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE, COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff failed to mitigate his damages, if any, in that he failed to use reasonable diligence in caring for his injuries and reasonable means to prevent their aggravation or to accomplish their healing. AS AND FOR A SIXTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any exposure of plaintiff to products manufactured, sold or distributed by this defendant was so minimal as to be insufficient to establish by a reasonable degree of probability that any such product caused any alleged injury, damage, or loss to plaintiff, AS AND FOR A SEVENTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO ‘THE COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, it is alleged that any products manufactured, sold or distributed by this defendant were not a substantial factor in 1781422, 4 "ANSWER OF BUFFALO PUMPS, INC. 10 UNVERIFIED COMPLAINT FOR PERSONAL INTURY28 Jerson 6 Wanna bringing about the injuries and damages complained of by plaintiff, and, therefore, this defendant may not beheld liable to plaintiff as alloged. AS AND FOR A EIGHTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the state of the medical, scientific, and industrial knowledge and practice was at all material times such that defendant neither breached any alleged duty owed plaintiff, nor knew nor could have known that is product(s) presented a foreseeable risk of harm to plaintiff in the normal and expected use of such product(s). AS AND FOR A NINETEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that any products, substances, or equipment assembled, formulated, sold or distributed by this answering defendant were made consistent with the state of the art applicable to said products, substances, or equipment at the time of their assembly, sale, formulation, or distribution. AS AND FOR A ‘TWENTIETI, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that if this defendant is responsible to plaintiff, which responsibility is expressly denied, this defendant shal] ‘be liable to plaintisf only for the amount of non-economic damages allocated to this defendant in direct proportion to this defendant's percentage of fault, if any, as required by Civil Code Section 1431.1 ef seg. AS AND FOR A TWENTY-FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that at the time and place of the happening of the occurrences and injuries alleged in the Complaint, and all times material thereto, plaintiff was employed by various employers, the names of which are unknown to this defendant, and working within the course and scope of his employment and/or employments. Said employer and/or employers and plaintiff were subject to the provisions of the Workers' Compensation Act of the State of California and plaintiff was entitled to receive workers’ compensation benefits from his employers. Certain sums have becn paid to or on behalf of plaintiff herein under the applicable provisions of the Labor Code of the Stale of Calilornia. 1281422 5 “ANSWER OF BUFFALO PUMPS, INC. TO UNVERIIED COMPLAINT FOR PERSONAL INJURY28 [scESON S WaLacE Said employer and‘or employers and each of them were negligent, careless, and at fault in and about the matters referred to in the Complaint and such negligence, carelessness, and fault proximately and concurrently contributed to and caused the happening of the incidents complained of by plaintiff, if any there were, By these premises, any judgment rendered in favor of plaintiff herein must be reduced by any benefits or payment made or to be made to plaintiff's employer's or employers’ compensation carrier under the authority of Witt vs. Jackson, 57 Cal.2d 57 (1961). AS AND FOR A TWENTY-SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the plaintifi’s employer or employers, by reason of the advice, information, warnings and use, handling, and storage information given to them, and by reason of their own long standing and continuous experience with the products, substances, and equipment referred to in the Complaint, are and were sophisticated users, handlers, and storers of any and all such produets, substances, and equipment, and thereby acquired a separate and affirmative duty to warn, advise, and inform plaintiff of any potential harmful effects from the mishandling, misstorage, and/or misuse of the subject property, if any. Said employer failed to so wam plaintifand thereby breached said duty, and said failure and breach did directly and proximately cause all damages, injuries, and losses complained of, if any there were. AS AND FOR A TWENTY-THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO ‘THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that at all time relative to matters in the Complaint, all of plaintiff's employers were sophisticated users of asbestos-containing products, and said employer's negligence in providing the product to their employees in a negligent, careless, and reckless manner was a superseding and intervening cause of plaintiffs injuries, if any there were. AS AND FOR A TWENTY-FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that as between plaintiff and defendant, the law applicable to this action is the law as it existed during the period this defendant engaged, if at all, in the manufacture, assembly, sale, or distribution of asian 6 "ANSWER OF BUFFALO PUMBS, INC. TO UN VERIMED COMPLAINT FOR PERSONAL INJURY28 cnoson 6 Wautace savenanosen asbostos-containing products to which the plaintiff claims exposure. It is unlawful, inequitable, and in violation of defendant's contractual, statutory, and constitutional rights to apply prineiples of law other than or in a manner different from those which existed for the period in which defendant manufactured, assembled, sold, or distributed products to which plaintiff claims exposure. AS AND FOR A TWENTY-FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, itis alleged that defendant denies any and all liability to the extent that plaintiff asserts defendant's alleged liability in a successor business, successor in product line, or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line, or a portion thereof; parent, alter ago, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an entity research, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, teasing, buying, offering for sale, selling, inspecting, servicing, installing contracting, or installation, ropairing, marketing, warranting, re-branding, manufacturing for olhers, packaging and advertising products conlaining a cortain substance, the generic name of which is asbestos. AS AND FOR A ‘TWENTY-SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO ‘THE COMPLAINT, AND FACH CAUSE OF ACTION THEREOF, itis alleged that plaintiffs alleged cause of action seeking punitive damages against his defendant does not state facts sufficient to constitute a cause of action against this answering defendant. AS AND FOR A TWENTY-SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that the causes of action asserted herein by plaintiff fail to state facts sufficient to constitute a cause of action in that plaintiff has asserted claims of punitive damages which, if granted, would violate the prohibition against laws impairing the obligation of contracts set forth in Article I, Section 10, of the United States Constitution. AS AND FOR A TWENTY-EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's claim for punitive or exemplary damages, if any, is barred by the due process clause of 1281422, 7 ANSWER OF BUFFALO PUMPS, INC, TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYCea Aw ww 28 Jpeasoné Waunace the Fifth and Fourteenth Amendments to the United States Constitution. AS AND FOR A TWENTY-NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's claim for punitive or exemplary damages, if any, alleged by plaintiff is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the States through the Fourteen Amendment, prohibiting the imposition of excessive fines. AS AND FOR A THIRTIETH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH CAUSE OF ACTION THEREOF, Plaintiff's action, and each alleged cause of action, is barred by the terms and provisions of California Code of Civil Procedure section 361. AS AND FOR A THIRTY-FIRS r, SEPARATE, AND AFFIRMATIVE DEFENSE TO ‘THE COMPLAINT, AND EACII CAUSE OF ACTION THEREOF, Defendant alleges that its products, if any, were manufactured, produced, supplied, sold and distributed in mandatory conformity with specifications promulgated by the United States Government under its war powers, as set forth in the United States Constitution, and that any recovery by plaintiff(s) on the Complaint on file herein is barred in consequence of the exercise of those sovercign powers. WHEREFORE, this answering defendant prays that plaintifY lake nothing by virtue of this, Complaint on file herein, that his Complaint be dismissed and that defendant be awarded its costs of suit herein incurred, and for any other and further relief as the Court may deem proper. Dated: February oo » 2007 JACKSON & WALLACE LLP py: CY 0 Tk, C.J. MANOLI Attomeys for Defendant BUFFALO PUMPS, INC. vse 8 "ANSWER OF BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAT. INJURY28 season 6 warrace Charles and Deborah Boudreaux, v. Advocate Mines LTD., et al. SE.S.C #274029 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION I, the undersigned, declare that am a citizen of the United States and employed in San Francisco County, California. [am over the age of eighteen years and not a party to the within- entitled action, My business address is 55 Francisco Street, 6th Floor, San Francisco, California 94133. On February 5 _, 2007, 1 served the following document(s) ANSWER OF DEFENDANT BUFFALO PUMPS, INC. TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS electronically via LexisNexis File & Serve on: BARON & BUDD P.C. 9465 Wilshire Blvd., Ste #460 Beverly Hills CA 90212 and all other recipionts designated on the Transaction Receipt located on the LexisNexis File & Serve website. J declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on February _5_, 2007, at San Francisco, California. 1281422