Answer: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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DETERT. MORAN & ARNOLD 28

SF/1433614¥]

SEDGWICK, DETERT, MORAN & ARNOLD LLP
CHARLES SHELDON (Bar No. 155598)

MARC BRAINICH (Bar Na. 191034)

DEREK 8. JOHNSON (Bar No. 220988}

One Market Plaza

Steuart Tower, 8th Floor

San Francisco, California 94105

Telephone: (415) 781-7900

Facsimile: (415) 781-2635

Attorneys for Defendant
GENERAL ELECTRIC COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

AUG 02 2007
GORDON PARK-LI, Clerk
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE CGUNTY OF SAN FRANCISCO — UNLIMITED JURISDIC1ION

LOUIS CASTAGNA, CASE NO, 274230
Plaintiff, GENERAL ELECTRIC COMPANY'S
ANSWER TO COMPLAINT FOR
VS. DAMAGES
ASBESTOS DEFENDANTS (B*P), ctal., © (ASBESTOS)
Detendants.

Defendant GENERAT, FLECTRIC COMPANY (“Defendant”) answers the unverified

complaint of plainutf LOUIS CASTAGNA (“Plaintiff”) for personal injury as follows:

Under the provisions of Code of Civil Procedure Section 431.350, Defendant denies each

and every and all of the allegations of said complaint and denies that Plaintiff sustained damages

in the sum or sums alleged, or in any other sum, or at all.

FIRST AFFIRMATIVE DEFENSE

Defendant alleges that said complaint and each cause of action therein fails to state facts

sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

Defendant alleges that the causes of action, if any, attempted io be stated and set forth in

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GE'S ANSWER TO COMPLAINT27

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said complaint are barred by the applicable statutes of limitations. including, but not limited to,
the provisions of Code of Civil Procedure sections 335.1, 338, 340.2 and 361.
iE SE

THIRD AFFIRMAT

Defendant alleges that the causcs of action, if any, attempted to be stated and sct forth in
said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and
laches.

FOURTH AFFIRMA’

‘E DEFENSE
Defendant alleges that Plaintiff and others were negligent or otherwise at fault in and
about the matters referred to in said complaint, and that such negligence and/or other fault bars or
diminishes Plaintiff's recovery against Defendant.
EIFTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiff was solely negligent in and about the matters alleged in
said complaint and that such negligence on the part of Plaintiff was the sole legal cause of the
injuries and damages complained of by Plaintiff, if'any there were.
SIXTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiff assumed the risk of the matters referred to in said
complaint, that Plaintiff knew and appreciated the nature of the risk. and that Plaintiff voluntarily
accepted the risk.
SEVENTH AFFIRMATIVE DEFENSE
Defendant is informed and believes and thereon alleges that Plaintiff misused and abused
the products referred to in said complaint, and failed to follow instructions, and that such misuse,
abuse and failure to follow instructions on the part of Plaintiff proximately caused and
contributed to the injuries and damages complained of in said complaint, if any there were.
EIGHTH AFFIRMATIVE DEFENSE
Defendant alleges that if Plaintiff sustained injuries attributable to the use of any product
manufactured, supplied, or distributed by this answering Defendant, which allegations are
expressly denied, the injuries were solely caused by and attributable to the unreasonable,
unforeseeable, and inappropriate purpose and improper use which was made of the product.

2.
GE'S ANSWER TO COMPLAINT28

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NINTH AFFIRMATIVE DEFENSE

Defendant alleges that if there was any negligence proximately causing the injuries or
damages sustained by Plaintiff, if any, such negligence, if any, was solely that of Defendants,
firms, persons. or entities other than Defendant.

TENTH AFFIRMATIVE DEFENSE
Defendant alleges that there is no privity between Plaintiff and Defendant.
ELEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that it gave no warranties, either express or implied, to Plaintiff and
that neither Plaintiff nor others ever notified Defendant of any claims of breach of warranty, if
any there were.

TWELFYI AFFIRMATIVE DEFENSE

Defendant alleges that said complaint and each cause of action therein is barred with
respect to Defendant by the provisions of the Workers Compensation Act, including but not
limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of California.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that if there was any negligence proximately causing the injuries or
damages, if any, sustained by PlaintifY, such negligence, if any, is collateral negligence, as that
term is used and defined in Restatement 2d Torts, Section 426 and derivative authority.

FOURTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the matters referred to in the complaint, Plainti(f was
‘employed by an employer other than this answering Defendant and was entitled to and received
workers’ compensation benelits from his employers; and that if there was any negligence

any, such negligence, if

proximately causing the injuries and damages sustained by Plain
any. was that of Plaintiff’s employers.

NTH AFFIRMATIVE DEFENS!

Defendant alleges that Plaintiff's claims, and each of them, and this action, are preempted

by federal statutes and regulations governing work place exposure to asbestos.

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GE'S ANSWER TO COMPLAINT.27

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SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that the products referred to in said complaint, if manufactured by
Defendant at all, were manufactured in strict compliance with reasonably precise United States
government specifications, and that the hazards associated with use of the products, if any, were
known equally to the federal government and Defendant. Boyle v. United Technologies Corp.
487 U.S. 500 (1988).

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that to the extent said complaint purports to state a cause of action or
basis for recovery under Sindell v. Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by
Plaintiff's failure to join as Defendants the manufacturers of a substantial share of the asbestos
products market, to which asbestos products Plaintiff was allegedly exposed, thereby causing the
damages alleged; and, should it prove impossible to identify the manufacturer of the product that
allegedly injured Plaintiff, said purported claim or cause of action is barred by the fault of
Plaintiff and his agents in making identification of the manufacturer impossible.

EIGHTEENTH AFF ‘TIVE DEFENSE

Defendant alleges that, to the extent said complaint purports to state a cause of action or
basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing
product, it fails to state facts sufficient to constitute a cause of action in that Plaintiff has asserted
claims for relief which, if allowed, would contravenc this Defendant’s constitutional rights to
substantive due process of law, as preserved by the Fourleenth Amendment to the Constitution of
the United States and by Article I, Section 7 of the Constitution of the State of California.

NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, to the extent that it seeks exemplary or punitive
damages pursuant to California Civil Code Section 3294, violates Defendant’s right to
procedural due process under the Fourteenth Amendment of the United States Constitution, and
Article 1, Section 7 of the Constitution of the State of California, and therefore fails to state a

cause of action upon which cither punitive or exemplary damages can be awarded.

4.
GE'S ANSWER TO COMPLAINTBow oN

TWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, to the extent that it seeks punitive or exemplary

damages pursuant to California Civil Code Section 3294, violates Defendant’s right to protection
from “excessive fines” as provided in the Eighth Amendment of the United States Constitution
and Article I, Section 17 of the Constitution of the State of California, and violates Defendant's
right to substantive due process as provided in the Fifth and Fourteenth Amendments of the
United States Constitution and the Constitution of the State of California, and therefore fails to

state a cause of action supporting the punitive or exemplary damages claimed.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, and each cause of action therein, fails to state facts
sufficient to warrant an award of punitive or exemplary damages against this Defendant.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Defendant alleges that at all relevant times, Plaintit!’s employers were sophisticated users
of asbestos-containing products, and that said employers were aware of the dangers, if any, of
asbestos-containing products, and that said employers’ negligence in providing the products to
their employees in a negligent, careless and reckless manner was a superseding intervening cause
of Plaintiff's injuries, if any.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that at all relevant times Plaintiff was a sophisticated user of asbestos-
containing products, that Plaintiff was aware, or should have becn aware, of the dangers, if any,
of asbestos-containing products, and that the sophisticated user doctrine is a complete bar to
Plaintiff's claims against Defendant as a matter of law, Johnson v. American Standard, Ine., ct
al, (2005) 34 Cal. Rptr.3d 863.

TWENTY-FOURTH AFFIRMATIVE DEFENSE,

Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action
altempted to be stated and set forth against Defendant, because the injuries and damages
complained of in the complaint, if any, arose in the course and scope of Plaintiff's employment

by an independent contractor.

GE'S ANS WER TO COMPLAINT27

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TWENTY-FIFTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiff is barred from recovery in that all products produced by
this Defendant were in conformity with the existing state-of-the-art, and as a result, these
products wore not defective in any manner.

TWENTY-SIXTIH AFFIRMATIVE DEFENSE

Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
said complaint for negligence per se are barred by California Labor Code Section 6304.5, and
derivative authority.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff failed to exercise due diligence to mitigate his losses,
injuries or damages, if any, and, accordingly, the amount of damages to which Plaintiff is
entitled, if any, should be reduced by the amount of damages which otherwise would have been.
mitigated.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that it had no knowledge, either actual or constructive, and by the
application of reasonable, developed human skills and foresight had no reason to know of the
propensities, if any, of any product allegedly manufactured, supplied, applied and/or sold by this
Defendant to cause or contribute to the creation of medical conditions or circumstances involving
alleged injuries to the hungs, respiratory and cardiovascular systems, including cancer,
mesothelioma, or any other illness of any type whatsoever.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Defendant alleges that the provisions of California Civil Code Section 1431.2 are
applicable to the Complaint and each cause of action therein.
THIRTIETH AFFIRMATIVE DEFENSE
Defendant alleges that unforeseen and unforeseeable acts and omissions by others
constitute a superseding, intervening cause of Plaintiff's injuries, if any.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that each of Plaintiff's claims, and this entire action, are preempted by

GE'S ANS WER TO COMPLAINTSF:1433614v1

all applicable federal law relating to railroads, their equipment, and/or alleged injuries and
damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49
U.S.C. sections 20701 et sea.

THIRTY-SECOND AFFIRMATIVE DEFENSE

“The matters alleged in said complaint are encompassed within and barred by a settlement
and release agreement reached by the parties, which operates as a merger and bar against any
further litigation on matters raised or potentially raised in connection with the settlement and
release.

THIRTY-THIRD AFFIRMATIVE DEFENSE

To the extent that Plaintiff has reached an accord with Defendant regarding this litigation
and this accord was then properly satisfied, the claims, causes of action, theories of liability and
matters alleged in said complaint are barred by the doctrine of accord and satisfaction,

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Defendant contends that Plaintiff has released, settled, entered into an accord and
satisfaction, or otherwise compromised his claims herein, and accordingly, said claims are
barred.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

The claims asserted in said complaint have been settled, compromised or otherwise
discharged and Defendant is duc a set off.
THIRTY-SIXTH AFFIRMATIVE DEFENSE

To the extent that Plaintiff has previously filed a dismissal in court dismissing with
prejudice all of his asserted claims, causes of action , and other theories of liability against
Defendant, the matters alleged in said complaint are barred by retraxit.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's claims herein are barred based on the primary right and res judicata doctrines

which prohibit splitting a single cause of action into successive suits, and secking new recovery

for injuries for which the plaintiff was previously compensated by alleged joint tortfeasors.

Te
GE'S ANSWER TO COMPLAINT1 THIRTY-EIGHTH AFFIRMATIVE DEFENSE

2 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
3|| said complaint are barred by applicable statutes of repose, including statutes of repose in other

4 states that are applicable to this action pursuant to California Code of Civil Procedure

5} section 361.

6 WHEREFORE, Defendant prays:

7 1. That Plaintiff take nothing by reason of said complaint;

8 2. That Defendant be awarded costs of suit herein and such other and further relief as

9.| the court deems just;
10 3. That if Defendant is found liable, the degree of the responsibility and liability for
11 | the resulting damages be determined, and that Defendant be held liable only for that portion of
12] the total damages in proportion to its liability for the same.

DATED: July 31, 2007 SEDGWICK, DETERT, MORAN & ARNOLD LLP

16 a
By:

17 “Derek Johnson
Attoryfé's for Defendant
18 GENERAL ELECTRIC COMPANY

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GE'S ANS WER TO COMPLAINTPROOF OF SERVICE

2 Lam a resident of the State of California, over the age of eighteen years, and was at the
time of service of the documents herein referred to, not party to the within action, My business
3 | address is Sedgwick, Detert, Moran & Arnold LLP, One Market Plaza, Steuart Tower, 8th floor,
San Francisco, California 94103, On August 02, 2007, | served the within document(s):
4
GENERAL ELECTRIC COMPANY'S: 1. ANSWER TO COMPLAINT
3 FOR DAMAGES (ASBESTOS); AND 2, DEMAND FOR TRIAL BY JURY
‘AND ESTIMATE OF LENGTH OF TRIAL
6
Cl FACSIMIL# - by transmitting via facsimile the document(s) listed above
7 to the fax mumber(s} set forth on the attached ‘Iclecommunications Cover
Page(s) on this date before 5:00 p.m,
8
E-MAIL ~ on the date executed below, I electronically served the document(s) via
9 LexisNexis File & Serve described above on the recipients designated on the
Transaction Receipt located on the LexisNexis File & Serve website and listed
10 below.
h LI PERSONAL SERVICE, - by having personally delivered by an authorized agent
of Specialized Legal Services the document(s) listed above to the person(s) at the
YD address(es) set forth below.

LI OVERNIGHT COURIER - by placing the document(s) listed above in a sealed
13 envelope with shipping prepaid, and depositing in a collection box for next day
delivery to the person(s) at the address(es) set forth below via Overnite Fxpress.

Brayton Purcell Attorneys For Plaintifis
15 | P.O. Box 6169

222 Rush Landing Road

16 | Novato, CA 94948-6169

Tel: (415) 898-1555 / Fax: (415) 898-1247

17
All Other Defense Counsel All Other Defense Counsel on the LexisNexis
18 File & Serve Website
19
20 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on August 02, 2007, at San Francisco, California.
21
22
Jil K. Horner
23

24 | Louis Castagna vs. Asbestos Defendants (B*P), et al. / SFSC No. 274230
Our Client: Defendant General Electric Company / Our File No. 0045-079666

PROOF OF SERVICE
SPIAI38I601