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

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                                Raymond L. Gill (SBN 153529)
Michael R. Haven (SBN 208721)
KIRKPATRICK & LOCKHART
PRESTON GATES ELLIS Lip
55 Second Street, Suite 1700

San Francisco, CA 94105
Telephone: (415) 882-8200
Facsimile: (415) 882-8220

Attorneys for Defendant
CRANE CO.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 27 2007
GORDON PARK-LI, Clerk ~

BY: ALISON AGBAY
Deputy Cler!

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA,
Plaintiff,
Vv.

ASBESTOS DEFENDANTS (BP), et al.

Defendants.

See ee ee ee ge ee” ee ee et eet

ASBESTOS-RELATED CASE
CASE NO. CGC-07-274230
ANSWER TO PLAINTIFF'S

COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

COMES NOW defendant, CRANE (O., and in answer to plaintiff's complaint on file

herein, and each and every cause of action allegedly set forth therein, answers, alleges and denies

as follows:

I.

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

specifically, the allegations contained in the complaint, and each and every cause of action

allegedly set forth therein, as they may apply to this answering defendant.

SP-136603 v1

ANSWER TO COMPLAINT FOR PERSCNAL INJURY —- ASBESTOS
CASE NO. CGC-07-274230Coma Awe

TL.

Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was legally responsible in some manner
for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has
been damaged in the manner set forth in said unverified complaint and each and every cause of
action allegedly set forth therein.

OL

Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was negligent and/or careless in any
respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the
manner set forth in said unverified complaint and each and every cause of action allegedly set
forth therein.

EIRST AFFIRMATIVE DEFENSE

AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and causes of action thercin
fail to state facts sufficient to constitute a cause of action against this answering defendant.

SECOND AFFIRMATIVE DEFENSE

AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff was himself careless and
negligent in and about the matters referred to in the complaint and that such negligence and
carelessness on the part of the plaintiff proximately caused and contributed to the damages
complained of, if any there were.

THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of
ordinary care, should have known of the risks and hazards involved in the undertaking in which

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"ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS

CASE NO. CGC-07-274230plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and
voluntarily consent to assume the risks and hazards involved in the undertaking.
FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff was himself solely and totally
negligent in and about the matters referred to in the complaint and that such negligence and
carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of|
the negligence involved in this case and was the sole cause of the injuries and damages
complained of, if any there were.

FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons without this defendant's knowledge and approval
redesigned, modified, altcred, and used this defendant's products contrary to instructions and.
contrary to the custom and practice of the industry. This redesign, 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 redesign, modification,
alteration, or other such treatment or change and not from any act or omission by this defendant.
Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be,
and was the direct and proximate cause of the injuries and damages, if any, that plaintiff
allegedly suffered.

SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any

of the parties named herein, it is the sole and exclusive negligence and liability of the other

defendants, and not of this answering defendant.

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‘ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant is not liable for any injuries alleged in the complaint
because defendant’s conduct falls within the purview and protection of the government
contractor defense.

EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the
complaint plaintiff was employed and was entitled to and did receive workers' compensation
benefits from said employer. This defendant is informed and believes, and on the basis of said
information and belief alleges that, if the conditions as alleged in the plaintiff"s complaint are
found to exist, the plaintiff's employer was negligent and careless in and about the matters
referred to in said complaint and that said negligence on the part of the employer proximately
cansed or contributed to the injuries and damages, if any, complained of by the plaintiff, and
further, that the plaintifi's employer assumed the risk of injury to the plaintiff, if any there was,

in that at the time and place of the incident such conditions, if any, were open and apparent and

were fully known to the plaintiff's employer; and that by reason thereof, this defendant is entitled

to set off any compensation benefits received or to be received by the plaintiff against any

judgment which maybe rendered in favor of the plaintiff herein.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID.

COMPLAINT, this answering defendant alleges that the complaint and the causes of action

therein are barred by the statutes of limitation and repose of California and any other relevant

state, including but not limited to the limitations set forth under sections 340.2 and 361 of the

Code of Civil Procedure of the State of California.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO, CGC-07-274230Caran

TENTH AFFIRMATIVE DEFENSE

AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in
bringing this action against defendant and that such delay substantially prejudiced this answering
defendant. Therefore, this action is barred by the doctrine of laches.

ELEVENTH AFFIRMATIVE DEFENSE

AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of
action therein fail to state facts sufficient to constitute a cause of action against this answering
defendant pursuant to sections 3600, et seq., of the California Labor Code.

TWELFTH AFFIRMATIVE DEFENSE

AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that plaintiff's employer was contributorily
negligent and careless in and about the matters alleged in the complaint, and that such negligence
and carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any
there were.

THIRTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and
knowingly entered into and engaged in the operations, acts and conduct alleged in said
complaint, and voluntarily and knowingly assumed ail of the risks incident to said operation, acts
and conduct alleged in said complaint, and voluntarity and knowingly assumed all of the risks
incident to said operations, acts and conduct at the time and place mentioned in the complaint.

FOURTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, this answering defendant alleges that the plaintiff acknowledged, ratified,

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"ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230consented to and acquiesced in the alleged acts or omissions, if any, of this answering defendant,
thus barring plaintiff from any relief as prayed for herein.
FIETEENTH AFFIRMATIVE DEFENSE

AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant is informed and believes and therefore alleges
that plaintiff is unable to identify the actual manufacturer or manufacturers of the asbestos
products which allegedly caused the injury which forms the basis of the complaint herein, and
that said manufacturers were entities other than this defendant. Therefore, this defendant may
not be held liable for the injury of the plaintiff.

SIXTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, this answering defendant alleges that plaintiff's employer was and is 2
sophisticated user and knew independently or should have known of any danger or hazard
associated with the usc of a product containing asbestos and of exposure to high levels of dust of
any sort. Defendant further alleges that it wamed the plaintiff's employer of the danger or hazard
associated with the use of its product and thal plaintiff's employer failed to rely upon such
warning resulting in alleged damages due to plaintiff and plaintiff's employer's act or omission
and failure to act as sophisticated users.
SEVENTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint
the products alleged to have caused plaintiff's injuries were designed, manufactured, sold,
distributed, labeled and advertised in compliance with the then existing state of the art in the
industry to which this defendant belonged and furthermore, that the benefits of any such product
design outweighed any risk of danger in the design and that any such product met the safety

expectations of plaintiff and the general public.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230EIGHTEENTH AFFIRMATIVE DEFENSE

AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or
otherwise compromised his claims herein, and accordingly, said claims are barred by operation
of Jaw; alternatively, plaintiff has accepted compensation as partial settlement of those claims for
which this defendant is entitled to a set-off.

NINETEENTH AFFIRMATIVE DEFENSE

AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO.
SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
(actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein,

TWENTIETH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, at alt times and places mentioned in the complaint, plaintiff has failed to
make reasonable efforts to mitigate injuries and damages, if any.

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff, prior to the filing of this coruplaint, never informed this
defendant, by notification or otherwise, of any breach of express and/or implied warranties;
consequently, his claims of breach of express and/or implied warranties against this defendant
are barred.

TWENTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused
by the conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and

successors in interest, its parent company or companies, its affiliates, subsidiaries, or related

T

ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS
CASE NO. CGC-07-274230companies and enterprises.
TWENTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that to the extent the amount of punitive
damages sought is unconstitutionally excessive under the United States Constitution, it violates
the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIL, and the Due
Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

AS FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiff's claim for punitive
damages impermissibly seeks a multiple award of punitive damages as against this defendant in
violation of the following clauses: the Contracts Clause of Article I, section 10 of the United
States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and Duc Process provision of the Fifth and Fourtconth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Crucl and Unusuai Punishment and Excessive Fines
as guaranteed under the Fifth, Bighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, Article IV, section 16 of the California Constitution.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that punitive damages are barred by the
Constitutions of the United States and California by virtue of their violation of one or more of
the following clauses: the Contracts Clause of Article I, section 10 of the United States
Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States

8g

ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and due process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, and Article IV, section 16 of the California
Constitution.
‘TWENTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the subject premises was not used in the
manner in which it was intended to be used, and as a proximate result of such abuse and misuse,
the plaintiff sustained the injuries and damages complained of, if any there were.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that piaintiff has failed to join a party or the parties
necessary for a just adjudication of this matter and has further omitted to state any reasons for
such failure.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of

commencement of suit.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff failed to exercise ordinary care for his
own safety and well-being, and that failure to exercise ordinary care proximately and directly

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“ANSWER TO COMPLAINT FOR PERSONAL INJURY = ASBESTOS
CASE NO. CGC-07-274230caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently,
this defendant is entitled to the full protection afforded by law.
TH ATIVE DEFENSE

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's injuries or illness, if any, were due to
the acts or omissions of a person or persons over whom this defendant had neither control nor the
right of control.

‘THIRTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that while specifically and vigorously denying the
allegations of the plaintiff conceming liability, injuries and damages, to the extent that plaintisF
may be able to prove those allegations, this defendant states that they were the result of
intervening acts of superseding negligence on the part of the person or persons over whom this
defendant had neither control nor the right of control.

THIRTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons used this enswering 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. Plaintiff's injuries
and damages, if any, were therefore directly and proximately caused by his misuse and abuse of
such products.
THIRTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's
product or products, which exposure is vigorously denied, was so minimal as to be insufficient to

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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230establish a reasonable degree of probability that the product or products caused his claimed
injuries and illness.
‘THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at the time of this filing, there was no good
ground to support the complaint as to this defendant. There is now no good ground to support,
the complaint as to this defendant.

‘THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has waived any and all claims sought
in this action and is estopped both to assert and to recover upon such claims.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has
been abolished in a case such as this, and should plaintiff prevail against this defendant, this
defendant's liability is several and is limited to its own actionable scgment of fault, which fault is
vigorously denied.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted, or, if relief be granted, this defendant's
Constitutional right to substantive and procedural due process of law would be contravened.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of actions asserted by the plaintiff
fail to state a claim upon which relief can be granted, for if relief be granted, such relief would

MW

ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
CASE NO. CGC-07-274230constitute a taking of this defendant's property for a public use without just compensation, a
violation of this defendant's Constitutional rights.
THIRTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted because such relief would constitute a denial by
this court of defendant's Constitutional right to equal protection under the law.

FORTIETH AFFIRMATIVE DEFENSE

AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff
against this entity is improper as plaintiff incorrectly alleges that this answering defendant is
responsible, in whole or in part, for the acts of one or more alternative entities. This answering
defendant denies those claims.

FORTY-FIRST AFFIRMATIVE DEFENSE
‘AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that plaintiff's claim of sueccssor liability and

association with other entities is not factually or legally supported, and, as such, plaintiff has no
claim against answering defendant as asserted.
FORTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that it is not responsible for the product line or
items which plaintiff claims that it manufactured, distributed or sold. Rather, this answering
defendant asserts that another entity manufactured, distributed and sold this product line and is
legally responsible therefor.
Ml
Mt

2

ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
CASE NO. CGC-07-274230FORTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that to the extent any claim for relief in the
complaint, or amended complaint, secks to recover damages against this defendant for alleged
acts or omissions of predecessors or successors-in-interest to this defendant of any kind or
description, said defendant asserts that it is not legally responsible and cannot legally be held
liable for any such acts or omissions. This defendant further asserts that it cannot be held liable
for punitive damages and/or exemplary damages which are or may be attributable to the conduct
of any predecessor or successor-in-interest. Further, this defendant asserts that the conduct of
any predecessor or successor-in-interest cannot, as a matter of law, provide a legal basis for

liability or the imposition of damages against this defendant.

WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions,
that this answering defendant be dismissed with costs of suit incurred herein, and for such other

and further relief as this court deems just and proper.

Dated: July 26, 2007 KIRKPATRICK & LOCKHART
PRESTON GATES ELLIS tip

MICHAEL R. HAVEN

Attomeys for Defendant
RANE CO.

13,
‘ANSWER TO COMPLAINT FOR PERSONAL INIURY — ASBESTOS
CASE NO. CGC-07-274230