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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                No

CO

27

MORGAN, LEWIS &
BockKius L1.P
ATTORNEYS AT LAW

SaN FRANCISCO

MORTIMER H. HARTWELL, State Bar No, 154556

AMY J. TALARICO, State Bar No, 209112 ELECTRONICALLY

JENNIFER M. FIELD, State Bar No. 244976 FILED

MORGAN, LEWIS & BOCKIUS LLP Superior Court of California,

One Market, Spear Strect Tower County of San Francisco

San Francisco, CA 94105-1126 JUL 24 2007

Tel: 415.442.1000 GORDON PARK-LI, Cler

Fax: 415.442.1001 BY: EDNALEEN JAVIER-LACSON
Deputy Cler

Attorneys for Defendant
YARWAY CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, Case No. CGC 07-274230
PlainulT DEFENDANT YARWAY
CORPORATION’S ANSWER TO
VS. PLAINTIFF’S UNVERIFIED COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
ASBESTOS DEFENDANTS,
Defendant.

DLIENDANT YARWAY CORPORATION’S ANSWLR TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

Yarway Corporation (“Defendant” or “Yarway”), answers Plaintiff's unverified

Complaint for Personal Injury—Asbestos (“Complaint”) as follows:

Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant
denies each and every allegation of Plaintiffs Complaint and the whole thereof, and denies that
Plaintiff has been damaged in any sum or amount whatsoever, or at all,
FIRST AFFIRMATIVE DEFENSE
The Complaint and each of its purported causes of action fails to state facts sufficient to
constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Plainti(!”s Complaint, and each alleged cause of action, is barred by the applicable statute
of limitations, including, but not limited to, Code of Civil Procedure, Sections 337.15, 340.2 and
343, and California Commercial Code, Section 2725.
‘THIRD AFFIRMATIVE DEFENSE
Plaintiff is barred (rom recovery herein by virtue of the application of the Doctrine of
Laches (inexcusable delay and prejudice to Defendant).

FOURTH

FIRMATIVE DEFENSE,

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, Sections 3600, ef seg

FIRTH AFFIRMATIVE DEFENSE

No conduct by or attributable to Defendant was the cause in fact or the proximate cause of
the damages, i any, sustained by Plaintiff, nora substantial factor in bringing about said
damages.

SIXTH AFFIRMATIVE DEFENSE

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
proximately caused and contributed to by the negligence of the Plaintiff thereby barring or

reducing Plaintiff's recovery herein.
1

"AY CORPORATION'S
ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

SEVENTH AFFIRMATIVE DEFENSE
Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the
Complaint with full knowledge thercof, thereby proximately causing the injuries and damages, if
any, complained of by Plaintiff and PlaintifY is thereby barred from recovery herein,
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, i any, of this Defendant, thus barring Plaintilf from any relief as prayed for herein

NINT!

FFIRMATIVE DEFENSE

Any loss, injury or damage to Plaintiff was proximately caused or contributed to by the
negligent or other tortious acts, omissions, conduct or products of persons, entities or parties other
than Defendant, and that each, any, and all damages recoverable by Plaintiff must be diminished
in proportion to the amount of fault attributable to said other persons, entities or parties, and there
must be apportioned among all such persons, cntitics and partis the amount of damages
attributed to them as an offSet against damages, i any, awarded against Defendant

TENTH AFFIRMATIVE DEFENSE

Any loss, injury, or damage, if any, incurred by Plaintiff was the result of superseding or
intervening causes arising from the negligent or willful acts or omissions of other parties which
Defendant neither 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.

ELEVENTH AFFIRMATIVE DEFENSE

If Plaintiff sustained any injury or illness attributable to the usc of any product
manufactured 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 cach of them.

TWELFTH AFFIRMATIVE DEFENSE

Plaintiff was advised, informed, and warned of any potential hazards and/or dangers, if

any there were, associated with the normal or foreseeable use, handling, and storage of the

products, substances, and equipment described in the complaint.
2

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

THIRTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable

diligence in caring for their injuries and reasonable means to prevent their aggravation or to
accomplish their healing,
FOURTEENTH AFFIRMATIVE DEFENSE

The Complaint, and cach cause of action thereof, which is admittedly based upon a lack of
identification of the manufacturer of the alleged injury-causing product, [ails to state facts
sufficient to constitute a cause of action in that Plaintiff has asserted a claim for relief which, if
granted, would contravene Defendant's constitutional rights to substantive and procedural due
process of law as preserved for Defendant by the Fourteenth Amendment to the United States
Constitution and by Article I, Section 7, of the Constitution of the State of California,

FIFTEENTH AFFIRMATIVE DEFENSE

The product involved was materially altered or changed by a party or parties other than,
and without the permission of, Defendant, its employees, servants, or other agents, and such
alteration or change created the alleged detect, i any, which was the proximate or legal cause of
Plaintiff's injuries, or damages, if any.

SIXTEENTH AFFIRMATIVE DEFENSE

The asbestos-containing products, il any, for which Defendant had legal responsibility
were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged,
distributed, marketed and/or sold in accordance with contract specifications imposed by its co-
defendants, by the U.S. Government, by Plaintiff's employers and by third parties yet to be
identified.

SEVENTEENTH AFFIRMATIVE DEFENSE

The products, substances, and equipment referred to in the Complaint were properly
designed and manufactured, and safe for the purpose intended, Said produets, 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 caused or

3

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

contributed to the injuries, losses, and damages complained of, if any there were, thus barring
Plaintiff's recovery herein.

EIGHTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to give Defendant reasonably prompt notice of the breaches of warranty, if

any, alleged in the complaint.

NINETEENTH AFFIRMATIVE DEFENSE

Plaintiff was not in privity of contract with Defendant and said lack of privity bars

Plaintiff's recovery herein upon any theory of warranty.

TWENTIETH AFFIRMATIVE DEFENSE

Any exposure of Plaintiff to Defendant's products 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.

TWENTY-FIRST AFFIRMATIVE DEFENSE

This Defendant’s products were not a substantial factor in bringing about the injuries and
damages complained of by Plaintiff, and, therefore, Defendant may not be held liable to Plaintits
as alleged,

TWENTY-SECOND AFFIRMATIVE DEFENSE

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 PlaintifT, nor knew,
nor could have known, that their product(s) presented a foreseeable risk of harm to Plaintiff in the
normal and expected use of such product(s).

TWENTY-THIRD AFFIRMATIVE DEFENSE

Any products, substances, or equipment manufactured, formulated, sold or distributed by
Defendant were made consistent with the state of the art applicable to said products, substances,
‘or equipment at the time of their manufacture, sale, formulation, or distribution.

TWE

FOURTH AFFIRMATIVE DEFENSE
If Defendant is responsible to Plaintiff, which responsibility is expressly denied,

Defendant shall be liable to Plaintiff only for the amount of non-economic damages allocated to
4

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

each defendant in direct proportion to each defendant's percentage of fault, if any. (California
Civil Code, Sections 1431, ef seq.)
TWENTY-FIFTH AFFIRMATIVE DEFENSE

ALthe 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 their
employment and/or employments. Said employer and/or employers and Plaintiff was 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 been
paid to or on behalf of Plaintiff herein under the applicable provisions of the Labor Code of the
State of California. 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 payments made or to be
made to Plaintiff by Plaintiff’s employer's or employers’ compensation carrier under the
authority of Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360 P.2d 641].

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff has received, or in the future may receive, Workers’ Compensation benefits from
Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the complaint, and, in the event Plaintiff is awarded damages
against Defendant, Defendant claims a credit against this award 10 the extent that Defendant is
barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that

ive.

Plaintiff has reecived or may in the future ree

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Plaintiff herein have failed to join indispensable parties (California Code of Civil
Procedure, Section 389) and the Complaint is thereby defective, and Plaintiff is thereby precluded

from any recovery whatsoever as prayed for herein.
5

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
To the extent the complaint asserts Defendant's alleged “alternative,” “market share,” or
“enterprise” liability, the complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
TWENTY:

‘TH AFFIRMATIVE DEFENSE

The Complaint, and cach cause of action thercof, fails to state facts sufficient to constitute
a cause of action against Defendant, in that Plaintiff has failed 10 join a substantial market share
of the producers of the product or products to which Plaintiff was allegedly exposed.

THIRTIETH AFFIRMATIVE DEFENSE

Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing produets which allegedly caused Plaintil(’s injuries. Therefore, Defendant
may not be held liable to Plaintiff based on Defendant's alleged percentage share of the
applicable market.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Plainti(I”s alleged cause of action seeking punitive damages against Defendant does not
state facts sufficient to constitute a cause of action against this Defendant.

THIRTY-SECOND AFFIRMATIVE DEFENSE

PlaintifI"s claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred
by the due process clause of the Fourteenth Amendment to the United States Constitution.
THIRTY-THIRD AFFIRMATIVE DEFENSE,
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 Fourteenth Amendment, prohibiting the imposition of excessive fines.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

PlaintifI"s claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred
by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as

applied to the States through the Fourteenth Amendment.

6

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

THIRTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiff has no standing or right to sue for fraud and conspiracy, breach of warranty,
deceit, or any cause of action under California Civil Code, Sections 1708-1710, and therefore the
Complaint and each cause of action thereof {ail to state facts sufficient to constitute a cause of
action against this Defendant.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Fraud and conspiracy do not constitute a separate and distinet form of damages from
general damages, and, therefore, the prayer for fraud and conspiracy in addition to general
damages docs not sufficiently support or constitute a separate claim for damages against this
Defendant, but is simply cumulative and included in general damages.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

As between Plaintiff and Defendant, the law applicable to this action is the law as it
existed during the period Defendant engaged, if at all, in the manufacture, sale, or distribution of
asbestos-containing produets to which the Plaintiff claims exposure. It is unlawful, inequitable,
and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles
of law other than or in a manner different from those which existed for the period in which
Defendant manufactured, sold, or distributed products to which Plaintiff claims exposure.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that Plaintiff asserts Defendant’s
alleged liability as a successor-in-interest, successor-in-business, successor-in-product line, or
portion thereof: assign, predecessor, predecessor in business, predecessor in product line, or a
portion thereof; parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
owner of or member in an entity researching, studying, manufacturing, fabricating, designing,

labeli offering for sale, selling, inspecting, servicing,

assembling, distributing, Icasing, buyi

installing, contracting, or installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising a certain substance, the generic name of

which is asbestos.

7

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27

28
Montsan, Lewitte
Bos LEP

Each denial of Plaintiff's allegations, together with each of Defendant's allegations,
defenses and factual contentions, all as set forth herein, are hereby specifically identified as
denials, allegations, defenses and factual contentions subject to reasonable opportunity for further
investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)4).

WHEREFORE, this Defendant prays that Plaintiff's Complaint be dismissed and that
Plaintiff take nothing by virtue of this complaint on file herein, for its costs of suit herein
incurred, for appropriate credits and setofs arising out of any payment of Workers’
Compensation benefits alleged herein, and for any other and further relief as the Court may deem

proper.
Dated: July 24, 2007 Respectfully submitted,

MORGAN, LEWIS & BOCKIUS LLP

By _/s/ Jennifer M. Field

Jennifer M. Ficld
One Market, Spear Street Tower
San Francisco, CA 94105
415/442-1000

SBN 244976

8

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURYRow oN

27
28

Montsan, Lewitte
Bos LEP

PROOF OF SERVICE

LOUIS CASTAGNA V. ASBESTOS DEFENDANTS,
Case No. CGC 07-274230

1am a resident of the State of California and over the age of cightcen years, and not a
party to the within action; my business address is One Market, Spear Street Tower, San
Francisco, CA 94105-1126. On July 24, 2007, I served the within documents:

DEFENDANT YARWAY CORPORATION’S ANSWER TO PLAINTIFF'S,
UNVERIFIED COMPLAINT FOR PERSONAL INJURY — ASBESTOS.

by transmitting via E-File by Lexis Nexis File & Serve the document(s) listed above to
the person(s) at the address(es) set forth below

Attorneys for Plaintiffs Designated Defense Counsel
David R. Donadio, Esq. Berry & Berry

Jenelle N. Moulyn, Esq. 2930 Lakeshore Drive
Brayton Purcell LLP Oakland, CA 94610.

222 Rush Landing Road Tel: 510.250.0200

P.O. Box 6169 Fax: 510.835.5117

Novato, California 94948-6169
Tel: 415.898.1555

Executed on July 24, 2007, at San Francisco, California.

I declare under penallty of perjury, under the laws of the State of California and the United
States of America, that the foregoing is true and correct.

/s! Eileen H. Yemoto
Eileen Yemoto
‘One Market, Spear Street Tower
San Francisco, CA 94105
415/442-1000

9

DEFENDANT YARWAY CORPORATION'S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY