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

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                                SEDGWICK

DETER”. MORAN £ ARNOLDus

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SEDGWICK, DETERT, MORAN & ARNOLD LLP

GREGORY C. READ (Bar No. 49713)
STEVEN D. WASSERMAN (Bar No. 88291) ELECTRONICALLY
MICHAEL C. SCANLON, JR. (Bar No. 106590) FILED
ANNE CHERRY BARNETT (Bar No. 227209) Superior Court of California,
One Market Plaza County of San Francisco
Steuart Tower, 8th Floor
San Francisco, California 94105 ot. 8 2007 Cler
Telephone: (415) 781-7900 BY: EDNALEEN JAVIER-LACSON
Attorneys for Defendant
CATERPILLAR INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, ) CASE NO. CGC-07-274230

)

Plaintiff, )
) DEFENDANT CATERPILLAR INC.’S
VS. ) ANSWER TO COMPLAINT (ASBESTOS)

)
ASBESTOS DEFENDANTS (B“P} )

)

Defendants. )
)

Defendant CATERPILLAR INC. answers plaintiff's Complaint, as follows:

1.

Pursuant to Section 431.30 of the Code of Civil Procedure, defendant Caterpillar

Inc., a named defendant, denies each and every allegation of said Complaint and denies that

plaintiff sustained damages in the sum or sums alleged, or in any sum, or at all.

2,

FIRST AFFIRMATIVE DEFENSE

Defendant alleges that said Complaint does not state facts sufficient to constitute a

cause of action against this answering defendant.

3.

SECOND AFFIRMATIVE DEFENSE

Defendant alleges that the sole and/or partial, proximate cause of the damages

claimed was the carelessness, recklessness, negligence, fault, and/or strict liability of plaintiff or

other persons, firms or entities, and plaintiff's recovery, if any, should be proportionately reduced

SF/1427472¥1

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DEFENDANT CATERPILLAR INC'S ANSWER TO COMPLAINT (ASBESTOS)SEDGWICK 28

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according to the percentage of fault of said others and that this answering defendant be found

legally responsible only for its determined share of legal fault, if any, by virtue of the provisions
of Civil Code Section 1431, et seq.
THIRD AFFIRMATIVE DEFENSE
4. Defendant alleges that the sole and/or partial, proximate cause of the damages
claimed was the willful and/or intentional acts of other persons, firms or entities.
FOURTH AFFIRMATIVE DEFENSE
$. Defendant alleges that the causes of action set forth in plaintiff's Complaint are
barred by the applicable statutes of limitations as stated in California Code of Civil Procedure,
Section 335, and continuing through Section 349.4 and more particularly, but not limited to
Section 340.2.
FIFTH AFFIRMATIVE DEFENSE
6. Defendant alleges that plaintiff, with full knowledge of his damages, if any, failed
to mitigate such damages.
SIXTH AFFIRMATIVE DEFENSE
7. Defendant alleges that independent, intervening and superseding forces and/or
actions of third parties proximately caused or contributed to plaintiff's alleged losses or damages,
barring recovery from this defendant.
SEVENTH AFFIRMATIVE DEFENSE
8. Defendant alleges that they are entitled to contribution and/or partial or complete
indemnification from any person or entity whose negligence and/or acts proximately contributed
to the happenings of the claimed incident or alleged injuries.
EIGHTH AFFIRMATIVE DEFENSE

9. Defendant alleges that the Complaint, and each cause of action therein, is barred
on the grounds that plaintiff Louis Castagna knowingly assumed the tisk of the injuries or
damages alleged in the Complaint, if any.
NINTH AFFIRMATIVE DEFENSE
10. Defendant alleges that the injuries and damages in question, if any, were the result
2

DEFENDANT CATERPILLAR INC.’S ANSWER TO COMPLAINT (ASBESTOS)
sersaa7a72v1SEDGWICK 28

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of unreasonable, unforeseeable misuse, abuse, alteration, or improper maintenance of the product
or products in question.
TENTH AFFIRMATIVE DEFENSE

11. Defendant alleges that the subject product or products were used after acquiring
knowledge of the defect, if any there were, although this defendant specifically denies that there
were any defects in the subject product.

ELEVENTH AFFIRMATIVE DEFENSE

12. Defendant alleges that, on balance, in light of the relevant factors, the benefits of
the design of the subject product outweigh the risks of danger, if any, inherent in the design
and/or that the subject product performed as safely as the ordinary consumer would expect when
used in an intended or reasonably foresecable manner,

TWELFTH AFFIRMATIVE DEFENSE

13. Defendant alleges that plaintiff failed to give due or other proper notice for the
purposes of any alleged breach of warranty, as required under Commercial Code Section 2715, et
seq.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that, at the time of the injuries alleged in the Complaint,
plaintiff Louis Castagna was employed and was entitled to and received workers” compensation
benefits from his employer; that plaintiff Louis Castagna’s employer and co-employees were
negligent, careless or at fault and that such negligence, carelessness or fault on the part of said
employer and/or co-employees proximately and concurrently contributed to the happenings of the
accident, and to the loss and damages complained of by plaintiff Louis Castagna, if any there
actually were; and that, by reason thereof, this defendant is entitled to a set-off of any such
benefits received or to be received by plaintiff and, further, this defendant is entitled to have any
recovery reduced proportionately according to the current law regarding recovery of workers’
compensation benefits.

FOURTEENTH AFFIRMATIVE DEFENSE
15. Defendant alleges that plaintiff was not in privity with defendant and, therefore,
2

DEFENDANT CATERPILLAR ING.’S ANSWER TO COMPLAINT (ASBESTOS)
Srnaareravt~ ~
may not rely upon the theory of any alleged breach of express or implied warranty.
FIFTEENTH AFFIRMATIVE DEFENSE
16. The product, when manufactured and distributed, conformed to the then-current
state of the art, knowledge and practice such that this defendant did not, and could not know that
the product might pose a risk of harm, if any, when used in a normal and foreseeable manner.
SIXTEENTH AFFIRMATIVE DEFENSE
17. This defendant alleges that it had no duty to wam of any alleged risks associated
with the subject product because, such risks were unforeseeable at the time of exposure and/or
the product was not defective; and even if it had a duty to warn, which allegation is expressly
denied, this defendant at all times fulfilled its alleged duty to wam of the alleged risks associated
with the subject product.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. This defendant alleges that if any express or implied warranties for purpose or
merchantability were provided, which this defendant denies, except for a possible limited
warranty to the original purchaser, the product met all such express or implied warranties for
purpose or merchantability.
EIGHTEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that said Complaint does not state facts sufficient for an award
of pre-judgment interest.

NI ‘EENTH AFFIRMATIVE DEFENSE

20. Defendant alleges that, if the produet or products described in the Complaint were
manufactured or distributed by defendant, then they were manufactured or distributed or warned
of in accordance with, and conformed to, such specifications and requirements supplied to
defendant by persons other than defendant, including, but not limited to, the government of the
United States of America. Any defect in said products was caused by deficiencies in such
mandatory specifications and requirements, which deficiencies were neither known to defendant
nor discovered by defendant with the exercise of reasonable care; and any hazards known were
either known to or provided to those issuing the specifications and requirements, including, but

4

DEFENDANT CATERPILLAR INC.’S ANSWER TO COMPLAINT (ASBESTOS)
spnazrar2e1SEDGWICK

Bow on

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not limited to, the goverament of the United States of America,
TWENTIETH AFFIRMATIVE DEFENSE

21. Defendant alleges that any exposure of plaintiff Louis Castagna to defendant's
product was so minimal as to be insufficient to establish to a reasonable degree or probability
that any such product caused any alleged injury or damage or loss to plaintiff.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Defendant alieges that plaintiff Louis Castagna was entitled to, and did, fully
inspect and examine all products involved, and was aware, or should have been aware, of any
dangerous conditions and/or defects.

TWENTY-SECO! ;FIRMATIVE DEFEN‘

23. Defendant alleges that plaintiff Louis Castagna and his employer bad specialized
knowledge and/or skill with respect to the products involved and any purported dangerous
conditions or defects with respect to same.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant alleges that plaintiff is precluded from taking or recovering any damage

and/or loss on the basis of res judicata and collateral estoppel.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Defendant alleges that it complied with all requirements of federal and/or state
legislation regarding the product or products involved, including, but not limited to, design,
manufacture, warnings, inspections, monitoring, labeling, shipping and handling; and if federal
legislation, plaintiff's action is preempted in whole or in part by said federal law.

TWENTY-FIETH AFFIRMATIVE DEEENSE

26. — Defendant alleges that plaintiff's Complaint, (o 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 I, Section 7 of the Constitution of the State of California, and therefore fails to state a
cause of action upon which either punitive or exemplary damages can be awarded.
mn"

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DEFENDANT CATERPILLAR INC.’S ANSWER TO COMPLAINT (ASBESTOS)
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1 TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. Defendant alleges that plaintiff's Complaint, to the extent that it seeks punitive or
exemplary damages pursuant to California Civil Cade 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

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

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8 | fails to state a cause of action upon which either punitive or exemplary damages can be awarded.
9
0

28. Defendant alleges that to the extent plaintiff's Complaint purports to state a cause
11 | of action or basis for recovery under Sindell v, Abbott Laboratories (1980) 26 Cal.3d 588, itis
12 | barred by plaintiff's failure to join as defendants the manufacturers of a substantial share of the
13 | asbestos products market, which asbestos products plaintiff allege caused the alleged injuries

14 | complained of; and, should it prove impossible to identify the manufacturer of the product that
15 | allegedly injured plaintiff Louis Castagna, plaintiff s purported claim or cause of action is bared
16 | by the fault of plaintiff in making identification of the manufacturer impossible. In addition,

17 | such claim would be barred by General Order of this Court.

18 TWENTY-EIGHTH AFFIRMATIVE DEFENSE

19 29. Defendant alleges that to the extent Plaintiff Louis Castagna became aware of any
20 | potential health risk during his career due to alleged asbestos exposure, Plaintiff shall be

21 | estopped from pursuing this action.

22 TWENTY-NINTH AFFIRMATIVE DEFENSE

23 30, Defendant alleges that if Plaintiff Louis Castagna was aware of or had safety
24 | equipment available to him during the alleged asbestos exposure, Plaintiff waived his right to
25 | pursue any such claim and should be estopped from bringing this action.

26 | WHEREFORE, defendant CATERPILLAR INC. prays as follows:

27 1, That plaintiff take nothing by his Complaint;
SEDGWICK 28 2. That the Complaint be dismissed with prejudice and that judgment be awarded in
&

DEFENDANT CATERPILLAR INC.’S ANSWER TO COMPLAINT (ASBESTOS)
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favor of this defendant;

3. That CATERPILLAR INC. be awarded its costs of suit herein; and

4. That CATERPILLAR INC. be awarded such other and further relief as this Court
deems just and proper.

DATED: July 17, 2007 SEDGWICK, DETERT, MORAN & ARNOLD LLP

By: Patt
ANNE CHERRY BARNETT

Attomeys for Defendant
CATERPILLAR INC.

a

DEFENDANT CATERPILLAR INC.'S ANSWER TO COMPLAINT (ASBESTOS)

srvi42na72viLouis Cstagna v, Aywestas Defendants
San Francisco County Superior Court No.: CGC 07-: 274230

PROOF OF SERVICE

~ Tam aresident of the State of California, over the age of eighteen years, and not a party 10
the within action. My business address is Sedgwick, Detert, Moran & Arnold, One Embarcadero
Center, 16th Floor, San Francisco, California 94111-3628. On July 18, 2007, ‘Tserved the within
document described as:

CATERPILLAR’S ANSWER TO COMPLAINT

forth on the attached Telecommunications Cover Page(s) on this date before
5:00 pm.

T _by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, California addressed as.
set forth below.

Bl electronically served the document(s) via LexisNexis File & Served on the
recipients designated on the Transaction Reccipt located on the LexisNexis File &
" Serve website.

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2
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5
6 C1 _by transmitting via facsimile the document listed above to the fax number(s) set
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R CD _ by OVERNIGHT COURIER - by placing the document(s) listed above in a sealed
envelope with shipping prepaid, and depositing in a collection box for next day
B delivery to the person(s) at the address(es) set forth below via .

14 | Please see attached list

Lam readily familiar with the firm's practice of collection and processing correspondence

17 | for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on

1g | motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above
20 | is true and correct. Executed on July 18, 2007, at San Francisco, California.

PROOF OF SERVICE
SF/142883501Page 1 of 3
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274230 Castagna vs Asbestos Defendants (Brayton) CA Superior Court County af San
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