Answer: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                ARMSTRONG & ASSOCIATES, LLP
William H. Armstrong, SBN 40650
Lisa A. Sapcoe, SBN 224799

One Kaiser Plaza, Suite 625

Oakland, California 94612

Telephone: (510) 433-1830

Facsimile: (510) 433-1836

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

DEC 15 2008
GORDON PARK-LI, Clerk
BY: EDNALEEN JAVIER-LACSON

Attorneys for Defendant Deputy Clerk

Crown Cork & Seal Company, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO- UNLIMITED JURISDICTION

CHARLES TOBEY,
Plaintiff,
vs.

ASBESTOS DEFENDANTS (BéP),

Defendants.

Case No. CGC-07-274226

DEFENDANT CROWN CORK & SEAL

COMPANY, INC.’S ANSWER TO
PLAINTIFF’S COMPLAINT FOR
PERSONAL INJURY — ASBESTOS

Action Filed: June 5, 2007

THIS CASE IS SUBJECT TO
MANDATORY ELECTRONIC FILING
PURSUANT TO AMENDED G.O. 158

DEFENDANT CROWN CORK & SEAL COMPANY, INC.'S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSCO BD WH RR RD Dm

yoMP RP MR NMR DY oe Be oe oe ee oe ee
A kh ££ YB NM = SC HM WD DA HW BF BH RW mm S

Defendant Crown Cork & Seal Company, Inc., (“Crown Cork”) answering only
for itself, answers Plaintiff's unverified Complaint as follows: Crown Cork generally denies the
allegations of each and every cause of action to the extent such allegations relate to it and/or its
predecessors or successors, and further denies that Plaintiff has been damaged in the sums
alleged, or in any other sum, or at all, To the extent such allegations relate to others, Crown
Cork admits such allegations,

FIRST AFFIRMATIVE DEFENSE

The Complaint, and each of its causes of action, fails to state facts sufficient to
constitute a cause of action against Crown Cork.

SECOND AFFIRMATIVE DEFENSE

Plaintiff's alleged injuries, losses, or damages, if and to the extent they occurred,
were aggravated by his failure to use reasonable diligence to mitigate them.

THIRD AFFIRMATIVE DEFENSE

Plaintiff's alleged injuries, losses or damages, if and to the extent they occurred,
which occurrence is expressly denied, were caused solely by his own recklessness, carelessness,
and/or negligence.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff's alleged injuries, losses or damages, if and to the extent they occurred,
which occurrence is expressly denied, were contributed to by his own recklessness, carelessness,
and/or negligence. Plaintiffs respective recoveries from Crown Cork, if any, must be reduced
by Plaintiff Thomas Coles’ respective comparative fault.

FIFTH AFFIRMATIVE DEFENSE

Plaintiff's claims are barred by the applicable statutes of limitations, including
California Code of Civil Procedure section 340.2, or by the doctrine of laches, or both.
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fit

2

DEFENDANT CROWN CORK & SEAL COMPANY, INC.'S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSCO BD WH RR RD Dm

yoMP RP MR NMR DY oe Be oe oe ee oe ee
A kh ££ YB NM = SC HM WD DA HW BF BH RW mm S

SIXTH AFFIRMATIVE DEFENSE
Plaintiff's alleged injuries, losses or damages, if and to the extent that they
oceurred, which occurrence is expressly denied, were caused solely by the faults of third parties
for which Crown Cork is not responsible.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's alleged illnesses and injuries, if and to the extent they occurred, which
occurrence is expressly denied, were contributed to by the faults of third parties for which Crown
Cork is not responsible.
EIGHTH AFFIRMATIVE DEFENSE
Crown Cork alleges that the risk of exposure to asbestos containing products was
inherent in Plaintiff's trade and work, and under the doctrine of primary assumption of risk,
Plaintiff may not recover for harm caused by such inherent risk.
NINTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred by the applicable principles of waiver and estoppel.
TENTH AFFIRMATIVE DEFENSE
Crown Cork alleges that Plaintiff assumed the risk of any injury and/or damages
resulting from the matters set forth in the Complaint, and that said assumption of risk was a
proximate and/or legal cause of the injuries and/or damages sustained by Plaintiff, if there were
any.

ELEVENTH AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to base any claim for non-economic
damages because it fails to allege the portion of such damages, if any, that Plaintiff attributes to
Crown Cork.

‘it
dit
did

3

DEFENDANT CROWN CORK & SEAL COMPANY, INC.'S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSCO BD WH RR RD Dm

yoMP RP MR NMR DY oe Be oe oe ee oe ee
A kh ££ YB NM = SC HM WD DA HW BF BH RW mm S

TWELFTH AFFIRMATIVE DEFENSE
Plaintiff's alleged illnesses and injuries, if and to the extent they occurred,
which occurrence is expressly denied, were caused or contributed to, in whole or in part, by the
negligence of his employer(s); and to the extent that Plaintiff has received workers’
compensation benefits for such illnesses and/or injuries, Crown Cork is entitled to a comparative
reduction in any economic damages sought by him or recovered by him in this action.

THIRTEENTH AFFIRMATIVE DEFENSE

The injuries and damages alleged in the Complaint, if any, were the direct and
proximate result of the unforeseeable misuse of products by Plaintiff and his employer(s).
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred by California Code of Civil Procedure section
430.10, and/or the primary right doctrine, to the extent there is or was another action pending
between the same parties on the same cause of action.

FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiff's claim for punitive damages violates Crown Cork’s right to due process
and equal protection as guaranteed by the Fourteenth Amendment to the United States
Constitution and Article I, Section 7, of the California Constitution in that: 1) neither California
Civil Code section 3294 nor any other provision of California or federal law provides an
adequate or meaningful standard for determining the nature of the conduct upon which an award
of punitive damages may be based on for determining or reviewing the amount of a punitive
damage award; and (2) neither California Civil Code section 3294, nor any other provision of
California or federal law provides adequate procedural safeguards for the imposition of punitive
damages, including, but not limited to:

(a) imposing such damages only upon the presentation of evidence beyond a

reasonable doubt;

(b) protecting the defendant's privilege against self-incrimination; and

4

DEFENDANT CROWN CORK & SEAL COMPANY, INC.'S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSCO BD WH RR RD Dm

yoMP RP MR NMR DY oe Be oe oe ee oe ee
A kh ££ YB NM = SC HM WD DA HW BF BH RW mm S

(c) providing for a unanimous jury verdict as to the punitive damages portion
of any adverse judgment.

SIXTEENTH AFFIRMATIVE DEFENSE

Crown Cork’s lability, if any, as successor to another corporation for injury
allegedly due to asbestos exposures, is limited by the laws of Pennsylvania.
SEVENTEENTH AFFIRMATIVE DEFENSE
Crown Cork alleges that at all times relative to matters alleged in Plaintiff's
Complaint, Plaintiff and all of his employers were sophisticated users of asbestos. Plaintiff's
claims are barred by the sophisticated user doctrine.
EIGHTEENTH AFFIRMATIVE DEFENSE
Crown Cork’s products at issue, if any, were distributed, manufactured, produced,
sold, and supplied in conformity with and pursuant to government standards, industry standards
and statutes based upon the state of knowledge existing at the time of the activities.
WHEREFORE, Defendant Crown Cork prays judgment that Plaintiff takes
nothing by reason of the Complaint, Defendant recovers its costs of suit; and for such other relief

as the Court deems proper.

DATED: December 15, 2008
ARMSTRONG & ASSOCIATES LLP

By: /s/ Lisa A, Sapcoe
Lisa A. Sapcoe, SBN 224799
One Kaiser Plaza, Suite 625
Oakland, California 94612
Telephone: (510) 433-1830
Facsimile: (510) 433-1836

Attorneys for Defendant
Crown Cork & Seal Company, Inc.

3

DEFENDANT CROWN CORK & SEAL COMPANY, INC.'S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSPROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Charles Tobey v. Asbestos Defendants (B#P}
San Francisco Superior Court, Civil Action No, CGC-07-274226

1, Patricia R. Antolino, declare that I am, and was at the time of service of the
document herein referred to, over 18 years of age, not a party to this action and a citizen of the
United States. | am employed in the County of Oakland, California by Armstrong & Associates,
LLP and my work email address is patricia.antolino@armstrongetal.com and my work mailing
address is One Kaiser Plaza, Suite 625, Oakland, California 94612.

On December 15, 2008, I electronically served the following document by

LexisNexis File & Serve:

DEFENDANT CROWN CORK & SEAL COMPANY, INC.’S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS

I served the recipients designated on the Transaction Receipt located on the
LexisNexis File & Service website.

i declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on December 15, 2008, at

Oakland, California.

/s/ Patricia R. Antolino
Patricia R. Antolino

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION