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

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Stephen F. Foley, Esq. SBN 220752 ELECTRONICALLY

T. Eric Sun, Esq. SBN 187486
Foley & Mansfield PLLP F ILE D .
1111 Broadway. 10" Floor Superior Court of California,
Oakland. CA a4 607 County of San Francisco
Telephone: (510) 590-9500 JUL 19 2007
Facsimile: (510) 590-9595 GORDON PARK-LI, Clerk
BY: VANESSA WU
Attorneys for Defendant Deputy Clerk

FISHER CONTROLS INTERNATIONAL LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, Case No. CGC-07-274230
Plaintiff, ) “Asbestos-Related Case”

)

Vs. ) DEFENDANT FISHER CONTROLS

)
)
)
)

INTERNATIONAL LLC’S ANSWER TO
ASBESTOS DEFENDANTS (BP), et al., ORESTOS _ FOR PERSONAL INJURY -

Defendants.

COMES NOW Defendant, FISHER CONTROLS INTERNATIONAL LLC, and answering
Plaintiff's Complaint on file herein, admits, denies, and alleges as follows:

Whenever “Plaintiff” is used in this Answer, that reference embraces each Plaintiff individually
as well as collectively, plus the words "and each of them.”

Under the provisions of Section 431,30(d), California Code of Civil Procedure, this answering
Defendant denies each and every allegation of Plaintiff s complaint and the whole thereol, and denies
that Plaintiff has been damaged in any sum or amount whatsoever, cr at all.

1. That any and all events and happcnings in conncction with the allcgations contained in
Plaintiff s complaini and the resulting injuries and damages, if any, referred to therein, were proximately
caused aud contributed to by the negligence of the PlaintilT, thereby barring or reducing Plainufl’s
recovery herein.

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DEFENDANT FISHER CONTROLS [NTERNATIONAL LLC’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSSECOND AFFIRMATIVE DEFENSE
2. Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the
complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if any,
complained of by Plaintiff and Plaintiff is thereby barred from recovery herein.
THIRD AFFIRMATIVE DEFENSE
3. Plaintiff acknowledged, ratified, consented 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,
FOURTH AFFIRMATIVE DEFENSE
4, Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including, but not limited to, Code of Civil Procedure, Sections 338, 339, 340, 340.2, and
343, and California Commercial Code, Section 2725.
FIFTH AFFIRMATIVE DEFENSE
5. Any loss, injury or damage to Plaintiff was proximately caused or contributed to by the
negligent or other (ortious acts, omissions, conduct or products of persons, entities or parties other than
this answering 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
thereby must be apportioned among all such persons, entities and parties the amount of damages
attributed to them as an offset against damages, if any, awarded against this answering Defendant.
SIXTH AFFIRMATIVE DEFENSE
6. Plaintiff is barred from recovery herein by virtue of the application of the Doctrine of
Laches (inexcusable delay and prejudice to Defendant).
SEVENTH AFFIRMATIVE DEFENSE
7. The court lacks subject matter jurisdiction over the matlers 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, et seq.
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DEFENDANT FISHER CONTROLS INTERNATIONAL LLC'S ANSWER TO COMPLAINT OR PERSONAL INJURY - ASBESTOSCe tA ewe oe

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EIGHTH AFFIRMATIVE DEFENSE,

8. 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.

NINTH AFFIRMATIVE DEFENSE

9. Plaintiff is barred from recovery herein by virtue of the fact that all products sold by this
Defendant were produced in conformity with specifications provided to this answering Defendant by the
government of the United States of America pursuant to its war powers. Any defect in said products
was caused by deficiencies in the specifications supplied to Defendant, which deficiencies were neither
known to Defendant nor discoverable by Defendant with the exercise of reasonable care.

TENTH AFFIRMATIVE DEFENSE

10, The complaint fails to state facts sufficient to constitute a cause of action against this
answering Defendant.

ELEVENTH AFFIRMATIVE DEFENSE

11. The complaint, and each cause of action thereof, which is admittedly based upon a lack
of identification of the manufacturer of the alleged injury-causing product, fails 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 Jaw as.
preserved for Defendant by the Fourteenth Amendment to the United Stated Constitution and by Article
I, Section 7, of the Constitution of the State of California.

TWELFTH AFFIRMATIVE DEFENSE

12. The complaint, and each cause of action thereof, fails to state facts sufficient to constitute
a cause of action in that Plaintiff has asserted claims for rclicf which, if granted, would constitute a
denial by this Court of Dofondam’s constitutional right to equal protection of the laws as preserved by
the Fourteenth Amendment to the United States Constitution, and by Article I, Section 7, of the
Constitution of the State of Cali:
We

fornia.

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DEFENDANT FISHER CONTROLS INTERNATIONAL. [1.0°S ANSWHE TO COMP! AINT FOR PERSONAL INJURY - ASBESTOSTHIRTEENTH AFFIRMATIVE DEFENSE
13. The complaint, and each cause of action thereof, which is admittedly based upon a lack

of identification of the manufacturer of the alleged injury-causing product, fails to state facts sufficient
to constitute a cause of action in that Plaintiff has asserted claims for relief which, if granted, would
constitute the taking of private property for public use without just compensation in contravention of the
Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 7 and 19, of
the Constitution of the State of California, and the applicable Califomia statutes.

FOURTEENTH AFFIRMATIVE DEFENSE

14, If'Defendant has purportedly been named or served in this action as a Doe Defendant,
such effort by Plaintiff is invalid on the grounds that Plaintiff knew, or should have known, of the
identity of Defendant and of his alleged causes of action against Defendant at the time of the filing of
the complaint.
FIFTEENTH AFFIRMATIVE DEFENSE
15. IfPlaintiff sustained any injury or illness attributable to the use 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 each of
them.
SIXTEENTH AFFIRMATIVE DEFENSE
16. 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.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. The product involved was 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 proximate or legal cause of

Plaintiff's injuries, or damages, if any.

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DEFENDANT FISUER CONTROLS INTERNATIONAL LLC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCe a An ew

EIGHTEENTH AFFIRMATIVE DEFENSE

18. The products, substances, and equipment referred to in the complaint were properly
designed and manufactured, and safe 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 caused or contributed to
the injuries, losses, and damages complained of, if any there were, thus barring Plaintiff's recovery
herein.
NINETEENTH APPIRMATIVE DEFENSE

19. Plaintiff failed to give Defendant reasonably prompt nolice of the breaches of warranty, if

any, alleged in the complaint.
‘TWENTIETI AFFIRMATIVE DEFENSE

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

Plaintiff's recovery herein upon any theory of warranty.
TWENTY-FIRST AFFIRMATIVE DEFENSE

21. 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.

TWENTY-SECOND AFFIRMATIVE DEFENSE

22. Any exposure of Plaintiff to products 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.

TWENTY- THIRD APEIRMATIVE DEFLNSE

23. Products sold or distributed by this Defendant were not a substantial factor in bringing
about the injuries and damages complained of by Plaintiff, and, therefore, this Defendant may not be
held liable to Plaintiff as alleged.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

24. — The state of the medical, scientific, and industrial knowledge and practice was at all
‘material times such that Delendant neither breached any alleged duty owed Plaintiff, nor knew, nor

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DEFENDANT FISIIER CONTROLS INTERNATIONAL LLC'S ANSWER TO COMPLAINT VOR PERSONAL INJURY - ASBESTOScea aK kw Ne

could have known, that its product(s) presented a foreseeable risk of harm to Plaintiff in the normal and
expected use of such product(s). .
TWENTY-FIFTH AFFIRMATIVE DEFENSE
25. Any products, substances, or equipment manufactured, 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 manufacture, sale, formulation, or distribution.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

26. If this Defendant is responsible to Plaintiff, which responsibility is expressly denied, this
Defendant shall be Hable to Plaintiff only for the amount of non-economic damages allocated to this
Defendant in direct proportion to this Defendant's percentage of faull, if any. (California Civil Code,
Sections 1431, et seq.)
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

27. 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 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].

28. Plaintiff has reccived, 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

DEFENDANT FISHER CONTROLS INTERNATIONSS. LIX"S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCe aH hk we oe

injury referred to in the complaint, and, in the event Plaintiff is awarded damages against Defendant,
Defendant claims a credit against this award to the extent that Defendant is barred from enforcing its
rights to reimbursement for Workers' Compensation benefits that Plaintiff has received or may in the
future receive.
TWENTY-NINTH AFFIRMATIV! SE

29. The Plaintiff’s employer or employers, by reason of the advise, information, warnings
and use, handling, and storage information given to ther, 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 products, substances, and equipment,
and thereby acquired a separate and affirmative duty to warn, advise, and inform Plaintiff of any
potential harmful offéets from the mishandling, misstorage, and/or misuse of the subject property, if any.
Said employer failed to so wam Plaintiff and 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.

‘THIRTIETIE AFFIRMATIVE DI

SE

30. Atal times relative to matters in the complaint, all of Plaintiff’'s employers were
sophisticated users of asbestos-containing products, and said employers’ negligence in providing the
product to their employees in a negligent, careless, and reckless manner was a superseding and
intervening cause of Plaintiff's injuries, if any there were.

THIRTY-FIRST AFFIRMATIVE DEFENSE

31. 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, sale, or distribution of
asbestos-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 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-SECOND AFFIRMATIVE DI

iSE
32. Defendant denies any and all liability to the extent that Plaintiff asserts Defendant's

alleged liability as a successor in business, successor in product line, or a portion thereof; assign,

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DPFERDANT FISHER CONTROLS INSERNATIONAL LLCS ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSpredecessor, 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, labeling, assembling, distributing, leasing,
buying, offering for sale, selling, inspecting, servicing, 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.

THIRTY-THIRD AFFIRMATIVE DEFENSE

33. 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
this Defendant.

‘THIRTY-FOURTH AFFIRMATIVE DEFENSE,

34. The complaint, and each cause of action thereof, fails to state facts sufficient to constitute
a. cause of action against this answering Defendant, in that Plaintiff has failed to join a substantial market
share of the producers of the product or products to which Plaintiff was allegedly exposed.
‘THIRTY-FIETH AFFIRMATIVE DEFENSE

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

THIRTY-SIXTH AFFIRMATIVE DEFENSE

36. Plaintiff's alleged cause of action seeking punitive damages against this Defendant does

not state facts sufficient to constitute a cause of action against this answering Defendant.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE

37. 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 for 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.
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DEFENDANT FISITER CONTROLS INTERNATIONAL LLC'S ANSWER TO COMPLAINT HOR PERSONAL INIURY - ASBESTOSCe aA hk wwe

THIRTY-EIGHTH AFFIRMATIVE DEFENSE
38. Plaintiffs 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-NINTH AFFIRMATIVE DEFENSE
39. 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.
FORTIETIL AFFIRMATIVE DEFENSE
40. Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plainti(T'is barred
by the "double jeopardy" clause of the Filth Amendment to the United States Constitution, as applied to
the States through the Fourteenth Amendment.
FORTY-FIRST AFFIRMATIVE DEFENSE
41. The complaint fails to state facts sufficient to constitute a cause of action to invoke the
‘maritime/admiralty laws of the United States.
FORTY-SECOND AFFIRMATIVE DEFENSE,

42. Plaintiff herein has 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.
FORTY-THIRD AFFIRMATIVE DEFENSE

43. Plaintiff has no standing nor 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 fails to state facts sufficient to constitute a cause of action
against this answering Defendant.

FORTY-FOURTH AFFIRMATIVE DEFENSE

44, Plaintiff herein lacks legal capacity to sue and is not a real party in interest and is thercby
precluded from any recovery whatsoever as prayed for herein.

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DEFENDANT FISHER CONTROLS INTERNATIONAL LLC'S ANSWER TO COMPLAINT FOR PERSONAL INTURY - ASBESTOS45.

FORTY-FIFTH AFFIRMATIVE DEFENSE

Fraud and conspiracy do not constitute a separate and distinct form of damages from

general damages, and, therefore, the prayer for fraud and conspiracy in addition to general

damages does not sufficiently support or constitute a separate claim for damages against this answering

Defendant, but is simply cumulative and included in general damages.
WHEREFORE, Defendant prays:

(2) That Plaintiff takes nothing by this Complaint;

(2) That Judgment be entered in favor of Defendant;

(3) For recovery of Defendant's costs of suit;

(4) For appropriate credits and set-offs arising out of any payment of Worker's

Compensation benefits as alleged above; and

(5) For such other and further relief as the Court deems just and proper.

Dated: July yg _,.2007 FOLEY & MANSFIELD, P.LLP.
BY:
Fo
T. Eric Sun

‘Attorneys for Defendant
FISHER CONTROLS INTERNATIONAL LLC

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DEEENDANT FISHER CONTROLS INTERNATIONAL. 1.C°S ANSWHK TO COMPLAINT KOR PERSONAL INJURY - ASBESTOSCastagna v. Asbestos Defendants (BOP). et al
San Francisco County Superior Case No. 274230

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

1, the undersigned, declare as follows:

Lam employed in the County of Alameda, California, and I am over the age of 18 years and not a
party to the within action. My business address is 1111 Broadway, 10" Floor, Oakland, CA 94607.

On the date executed below, I electronically served the documents(s) via LexisNexis File & Serve
described as:

DEFENDANT FISHER CONTROLS INTERNATIONAL LLC’S:
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS:
on the recipients designated on the Transaction Receipt located on the LexisNexis File& Serve website.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration
was executed on July 19, 2007, at Oakland, California.
ss

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PROOF OF SHRVICE BY ELECTRONIC TRANSRISSION