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BRYDON
HuGo & PARKER
185 Main geREeY
20" FLOOR
San Francisco, CA 94105
John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]
Robert L. Oca [Bar No. 216739]
BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20th Floor
San Francisco, CA 94105 cutee Pron
Fests cdi5) BO8-0833. County of San Francisco
GORUOR PARAL lerk
Attorneys for Defendant ! “Li, Cler
BAYER CROPSCIENCE, INC., successor to BY: VANESSA ‘Deputy Clerk
AMCHEM PRODUCTS, INC.
SUPERIOR COURT — STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
CHARLES TOBEY, (ASBESTOS)
Case No. 274226
Plaintiff(s),
vs. ANSWER OF BAYER CROPSCIENCE, INC.,
SUCCESSOR TO AMCHEM PRODUCTS,
ASBESTOS DEFENDANTS (B*P), INC. TO FIRST AMENDED COMPLAINT
FOR PERSONAL INJURY ~ ASBESTOS
Defendants.
COMES NOW Defendant BAYER CROPSCIENCE, INC,, successor to AMCHEM
PRODUCTS, INC. (“AMCHEM” or “Defendant”) denying liability for itself and any
alternate entities named in the complaint, and answering plaintiff's First Amended.
Complaint for Personal Injury ~- Asbestos (hereinafter the “Complaint”), on file herein,
admits, denies, and alleges as follows:
GENERAL DENIAL
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 thereof, and denies that plaintiff has been damaged in any sum or amount
whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind in
any amount whatsoever from AMCHEM.
1
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSCo Wm N BD HO RF WIN
28
BRYDON
HUGO & PARKER
135 MAIN STREET
20" FLOOR
Son Francisca, CA 94105
RESERVATION OF RIGHT TO TRIAL BY JURY
AMCHEM reserves the right to a trial by jury.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
This answering defendant alleges that plaintiffs Complaint and each of the causes of|
action for relief alleged therein, fails to state a cause of action against this answering}
defendant.
SECOND AFFIRMATIVE DEFENSE
Contravention of Defendant's Constitutional Rights to Due Process of Law
The Complaint and each cause of action thereof, which is admittedly based upon a
lack of identification of the manufacturer of, and contractor using or distributing 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 law as preserved for
defendant by the Fourteenth Amendment of the United States Constitution and by Article
I, Section 7, of the Constitution of the State of California.
THIRD AFFIRMATIVE DEFENSE
Denial of Defendant’s Constitutional Rights to Equal Protection of the Laws
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 relief which, if granted,
would constitute a denial by this Court of defendant’s constitutional right to equal
protection of the laws as preserved by the Fourteenth Amendment of the United States
Constitution and by Article I, Section 7, of the Constitution of the State of California.
FOURTH AFFIRMATIVE DEFENSE
Unconstitutional Taking of Private Property for Public Use Without lust Compensation
The Complaint, and each cause of action thereof, which is admittedly based upon a
2
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY — ASBESTOSoe ony Dn oO eF BO NH
NON NM ON NM NON RP OB OB SB Be Be Be Re RB Be
No 8&8 G 8&8 @ 8 fF SG Oo RN DT RF BN KF GS
28
BRYDON
Huco & PARKER
135 MAIN BREET
2G FLOOR
San Francisen, CA 94408
lack of identification of the manufacturer, and contractor using or distributing 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 off
private property for public use without just compensation in contravention of the Fifth and
Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and|
19, of the Constitution of the State of California, and the applicable California statutes.
FIFTH AFFIRMATIVE DEFENSE
Comparative Fault
This answering defendant alleges that the damages, if any, complained of by|
plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict
liability of plaintiff or other defendants, firms, persons, corporations, unions, employers}
and entities other than AMCHEM, and that said negligence, fault, breach of contract and/or
strict liability comparatively reduces the percentage of any negligence, fault, breach of
contract or strict liability for which AMCHEM is legally responsible, if any be found, which
liability this defendant expressly denies. Further, this answering defendant alleges that]
plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents
complained of herein, and said incidents and the injuries and damages, if any, sustained by
plaintiff, were directly and proximately caused and contributed to by the carelessness and
negligence of said plaintiff.
SIXTH AFFIRMATIVE DEFENSE
Contributory Negligence
This answering defendant alleges that plaintiff did not exercise ordinary care,
caution or prudence to avoid the incidents complained of herein, and said incidents and the
injuries and damages, if any, sustained by plaintiff, were directly and proximately caused
and contributed to by the carelessness and negligence of said plaintiff.
3
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC, TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY — ASBESTOSso ow NY DA oT FF WIN
RP RN RP NM NM BR OH Be Be Be eB ee BR
S & FF SH fF 6 CRU AEB DWH HK SO
28
Brypon
HUGO & PARKER
138 Main STREET
204 FLOOR
San Francisco, CA 94105
SEVENTH AFFIRMATIVE DEFENSE
Uncertainty
This answering defendant alleges that plaintiff’s Complaint and all purported causes
of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on
any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches
This answering defendant alleges that plaintiff unreasonably delayed in bringing
this action and that such delay substantially prejudiced defendant, and that this action is
therefore barred by the Doctrine of Laches.
NINTH AFFIRMATIVE DEFENSE
Statute of Limitations
This answering defendant alleges that plaintiff's Complaint and the purported
causes of action therein are barred by all statutes of limitation, including, but not limited to,
the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and|
340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725, Plaintiff's claims are
further barred by the statute of limitations of states other than California pursuant to
California Code of Civil Procedure § 361.
TENTH AFFIRMATIVE DEFENSE
Failure to Mitigate
This answering defendant alleges that plaintiff failed to mitigate damages which
plaintiff contends he suffered, and plaintiff is therefore barred from any recovery,
whatsoever, or alternatively, any damages found must be reduced in proportion to such
failure to mitigate.
ELEVENTH AFE TIVE DEFENSE
Estoppel
This answering defendant alleges that as a result of the acts, conduct and/or]
4
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS©C ewN A OT A ON
MN Be Be eB Be ep Be Be Be oe oe
a CO OBO ON BA GF FF Ww NY KF OC
BRYDON
HUGO & PARKER
135 Man STREET
20" FLOOR
San Freneisco, CA 94105
omissions of plaintiff and his agents, or any of them, and each cause of action presented
therein, is barred under the Doctrine of Estoppel.
TWELFTH AFFIRMATIVE DEFENSE
Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action,
alleged therein.
THIRTEENTH AFFIRMATIVE DEFENSE
Acquiescence
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.
FOURTEENTH AFFIRMATIVE DEFEN:
Notice of Dangers
Plaintiff was advised, informed, and warmed of any potential hazards and/or|
dangers, if there were any, associated with the normal or foreseeable use, handling, storage
and in place asbestos of the products, substances, equipment and at premises in which!
exposure is claimed as is described in the Complaint and is therefore barred from any relief
prayed for.
FIFTEENTH AFFIRMATIVE DEFENSE
Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in,
the plaintiffs Complaint conformed to statutes, government regulations, and industry]
standards based upon the state of knowledge existing at all relevant times.
SIXTEENTH AFFIRMATIVE DEFENSE
Compliance with Specifications
This answering defendant alleges that the asbestos products or asbestos used or in|
5
ANSWER OF BAYER CROPSCIENCE, INC,, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSan uw m Wen hs
BRYDON
HUGO & PARKER
135 MAIN Steer
20 FLOOR
San Brancisea, CA 94105
place at any premises, if any, for which AMCHEM had any legal responsibility, were|
manufactured, packaged, distributed or sold in accordance with contract specifications|
imposed by its co-defendants, by the U.S. Government, by the State of California, by
plaintiff’s employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE
No Conspiracy
This answering defendant alleges that AMCHEM has no liability for the acts,
omissions or otherwise of any other defendant or entity because AMCHEM did not become
legally responsible for the acts of any’such defendant, nor entity, by any communication,
alleged, implied, or actual, nor act, action, or activity, and never was, nor is, a conspirator
nor co-conspirator with any other defendant or entity.
EIGHTEENTH AFFIRMATIVE DEFENSE
State-of-the-Art
This answering defendant alleges that all of its activities, products, materials and its|
premises at issue here at all times were conducted, used, produced, marketed, and
operated in conformity with the existing scientific, medical industrial hygiene and
consumer knowledge, art and practice and state-of-the-art.
NINETEENTH AFFI EFENSE
No Foreseeable Risk to Plaintiff
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 plaintiff, nor
knew, nor could have known, that its activities, materials, products, activities or premises
presented a foreseeable risk of harm to plaintiff in the normal and expected course of such|
activities and use of such materials and products.
TWENTIETH API 2 DEFENSE
No Righ mntrol
This answering defendant alleges that any loss, injury, or damage incurred by;
6
ANSWER OF BAYER CROPSCIENCE, INC,, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSwo wn BD GF FF YB NY eH
NY BP NR NN RH NR BH Be eR Se Be Se Se Be Se
NS of OF £& 6B NB FY CGC 6 ON DB HTH FF Oo N KF GS
28
BRYDON
HuGo é& PARKER
15 Main srReer
20 TOA,
an Francisca, CA 94105
Plaintiff was proximately and legally caused by the negligent or willful acts or omissions off
parties which AMCHEM neither controlled, nor had the right to control, and was not
proximately caused by any acts, omissions, or other conduct of AMCHEM.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated
and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure
of the State of California and/or other statutes of the State of California, including without
limitation C.C.P. § 338(d). ,
TWENTY-SECOND AFFIRMATIVE DEFENSE
Misuse and Improper Use of Products
This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which AMCHEM had any legall
responsibility, which allegations are expressly herein denied, the injuries were solely
caused by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose
and improper use and abuse which was made of said product by persons or entities other|
than AMCHEM.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Due Care and Diligence
This answering defendant alleges that AMCHEM exercised due care and diligence
in all of the matters alleged in the Complaint, and no act or omission by AMCHEM.was the
proximate cause of any damage, injury or loss to plaintiff.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Alteration and Misuse of Product
This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos distributed, used, supplied by defendant or used or in place|
at any premises owned or controlled by defendant, were not disturbed or used in the|
7
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSwo an an » WON =
Boe Be Be BP eB BP BP eB
Se VA G PB YW NH FE OS
BryDon
HuGo & PARKER
135 MAIN BTRERY
20% FLOOR
San Braneisco, CA S4105
presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered
by others and/or used in a manner inconsistent with the labeled directions,
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Equal or Greater Knowledge of Hazards
This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were distributed or supplied to, or for, persons!
or entities who had knowledge with respect to the hazards, if any, resulting from exposure
to products containing asbestos, which knowledge is equal to or greater than the
knowledge of AMCHEM.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Other Parties’ Liability and Negligence
This answering defendant alleges that if there was any negligence or any other form
of liability on the part of any of the parties named herein, it was the sole and exclusive
negligence and liability of the other persons or entities and not of AMCHEM.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Apportionment and Offset
This answering defendant is informed and believes and thereon alleges that
plaintiff's acts and omissions, including plaintiff's agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court
apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset against
any damages awarded to plaintiff.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Contribution/Equitable Indemnity
This answering defendant alleges, in the event it is held liable to Plaintiff, any such
liability is expressly herein denied, and any other co-defendants are likewise held liable,
8
ANSWER OF BAYER CROPSCIENCE, INC,, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSOo SN DH eon =
NRoRNM MN NM NR ON BE Ee BR Be BP Be Be BP RP eB
8 ® & FB 8S & SF Ce Uaase ®©BN KF GD
28
BRYDON
Huo & PARKER
135 MAN STREET
20" Floor.
Sen Franclsco, CA 94105
AMCHEM is entitled to a percentage contribution of the total liability from said co-
defendants in accordance with the principles of equitable indemnity and comparative
contribution.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Assumption of Risk by Plaintiff's Employer(s)
This answering defendant alleges that the Complaint and each cause of action
alleged therein are barred on the grounds that plaintiff’s employer or employers knowingly
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and|
voluntarily and knowingly assumed all of the risks incident to said operations, acts and
conduct at the time and place mentioned in the Complaint.
THIRTIETH AFFIRMATIVE DEFENSE
Assumption of Risk
This answering defendant alleges plaintiff assumed the risk of the matters referred
to in his Complaint and that plaintiff knew and appreciated the nature of the risk and that
the plaintiff voluntarily accepted this risk,
THIRTY-FIRST AFFIRMATIVE DEFENSE
No Market Share
This answering defendant alleges that AMCHEM did not have an appreciable share
of the market for the asbestos-containing products which allegedly caused plaintiffs
injuries, which occurrence AMCHEM expressly denies, Accordingly, AMCHEM may not
be held liable to plaintiff based on its alleged share of the applicable product market.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff Fails to Join a Substantial Market Share
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 defendant has failed to]
join a substantial market share of the producers or products to which plaintiff was
allegedly exposed.
9
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSwoe NU DR HW FF Oo N
em oR Ee oe Be Se Re
SDB oO fF OB VY KF |S
18
BRYDON
HUGO & PARKER
149 MAIN STASET
201 ELGOR
San Francisco, CA $4105,
THIRTY-THIRD AFFIRMATIVE DEFENSE
Insufficient Facts to Show Substantial Market Share of this Defendant
now
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
Independent, Intervening or Superseding Cause
This answering defendant alleges that if plaintiff suffered any injuries attributable to|
the use of any product containing asbestos which was used, distributed or sold by
defendant, which allegations are expressly denied herein, the injuries were solely caused by
an unforeseeable, independent intervening and/or superseding event beyond the control
and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded
by the negligence and wrongful conduct of others.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Not a Substantial Factor
This answering defendant alleges that the Complaint and each cause of action
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial|
factor in bringing about the injuries and damages complained of by plaintiff and did not]
increase the risk that plaintiff would suffer the injuries and damages complained of.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Insufficient Exposure
Any exposure of plaintiff to defendant’s activities, products or exposure to asbestos|
or asbestos-containing products at AMCHEM’s premises 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.
10
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSCo em N DAD oT eB WN KR
Se BP Be Pp Be BP BP Ss
Co SBN BD Be FF BW YN KF S&S
20
Bryon
Huco & PARKER
135 MAIN STREET
20™ FLOOR
Spn Francisco, CA 4105
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
No Successor Liability
This answering defendant alleges that AMCHEM has no liability for the acts,
omissions or otherwise of any other defendant or any other entity because AMCHEM did
not become legally responsible for the acts of any such defendant or entity given the facts
and circumstances of the pertinent transactions and never was, nor is, a successor-in-
interest, a successor-in-liability or an alternate entity for any other user, manufacturer,|
supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing}
products.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Lack of Privity
This answering defendant alleges that plaintiff has failed to state a cause of action in
that the Complaint fails to allege that there was privity between defendant on the one|
hand, and plaintiff on the other, and furthermore, such privity did not exist between
defendant on the one hand, and plaintiff on the other.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Secondary Assumption of Risk
This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were used, distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from
exposure to products containing asbestos, which is equal to or greater than, the knowledge
of AMCHEM, i.e. AMCHEM’s liability should be reduced in proportion to the knowledge]
of plaintiff.
FORTIETH AFFIRMATIVE DEFENSE
Civil Code Secti 1
This answering defendant alleges that the provisions of California Civil Code §|
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintif{’s Complaint
i
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSoe mR ND TH F WY
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BRYDON
HUGO & PARKER
135 MAIN STREET
20% FLOOR
San Francisca, CA 94705
and to each cause of action therein.
FORTY-FIRST AFFIRMATIVE DEFENSE
Workers’ Compensation Exclusive Remedy
This answering defendant alleges that the Complaint is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,
California Labor Code §§ 3600, et seq.
FORTY-SECOND AFFIRMATIVE DEFENSE
Offset for Workers’ Compensation Benefits
This answering defendant alleges that to the extent plaintiff herein recovered, or in|
the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by
defendant for a credit or offset.
FORTY-THIRD AFFIRMATIVE DEFENSE
Express Contractual Indemnity
This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a AMCHEM premises, AMCHEM contracted with plaintiff
and/or plaintiff's employer(s) for them to fully assume all responsibility for insuring
plaintiff's safety, to guarantee that no hazardous condition existed, and/or to warn and|
protect against any such conditions, during the performance of plaintiffs work, and,
further, to fully indemnify AMCHEM, and to hold AMCHEM harmless, for alll
responsibility and Lability arising out of said work, and/or any injuries allegedly incurred
by plaintiff as a result of any of said work. AMCHEM reserves all rights to assert these|
provisions of contractual indemnity.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Consent
This answering defendant alleges that at all times mentioned, plaintiff consented to
the alleged acts or omissions of AMCHEM.
12
ANSWER OF BAYER CROPSCIENCE, INC, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSOo Oe N DF FF WB NY
Nn HM RN NH NR RE Ee RB Be eB Bh PUL PU
N F&F @ £&§ @ NH 8 G6 WN DBD F&F BR WB N FP SD
28
BRYDON
HuGO & PARKER
135 MAIN STREET
2014 FLOOR
San Francisco, CA 94105.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Unusual Susceptibility
This answering defendant alleges that each of plaintiff's injuries and damages, if
any, were proximately caused or contributed to by plaintiff’s unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which AMCHEM is not]
liable.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith
This answering defendant alleges that plaintiff's claim for punitive damages is|
barred because AMCHEM at all times and places mentioned in the Complaint acted
reasonably and in good faith, and without malice or oppression towards the plaintiff.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Sophisticated User
This answering Defendant alleges that, as the California Supreme Court ruled in
Johnson v. American Standard (2008) 43 Cal.4” 56, AMCHEM was under no legal duty to
warn plaintiff of the hazard associated with the use of products containing asbestos or their
existerice at any premises owned, operated, controlled or otherwise by AMCHEM, as
purchasers of said products, the plaintiff, plaintiff's employers, his unions, and/or certain
third parties yet to be identified, were knowledgeable and sophisticated users and were in
a better position to warn plaintiff of the risk associated with using products containing
asbestos and, assuming a warning was required, it was the failure of such persons or
entities to give such a warning that was the proximate and superseding cause of plaintiff's
damages, if any.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
tk Hazard Precautions
This answering defendant alleges that plaintiff's employer(s) was/were advised and
warned of any potential hazards and/or dangers associated with the normal and
13
ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS=
ow wn oo uo ke BB N
28
BRYDON
Huco & PARKER
135 Main STREET
20" FLOOR
Sen Franciaes, CA 94108
foreseeable conduct with, or storage and disposal of the products referred to in the
Complaint, in a manner which was adequate notice to an industrial user of such product to
enable it to inform its employees to take appropriate work precautions to prevent injurious
exposure.
FORTY-NINTH AFFIRMATIVE DEFENSE
Failure to Join Indispensable Parties
Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein.
FIFTIETH AFFIRMATIVE DEFENSE
No Standing Under California Civil Code §§ 1708-1710
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, §§ 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.
FIFTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff is not a Real Party in Interest
Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party
in interest and is thereby precluded from any recovery whatsoever as prayed for herein,
, FIFTY-SECOND AFFIRMATIVE DEFENSE
Fraud and Conspiracy are Not Separate Forms of Damages
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.
14
ANSWER OF BAYER CROPSCIENCE, INC, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOSOo we N DH FF OB YM
RRP NM RP NR NM ON RP BB BS ee oe oR Be
R&R ® £8 8 8 & © e®U AG DHE GD
28
BRYDON
Huco & PARKER,
135 MAIN STREET
20% FLOR:
San Franciien, CA 1105
FIFTY-THIRD AFFIRMATIVE DEFENSE
Failure to Allege with Particularity
This answering defendant alleges that plaintiff's Complaint fails to set out its claims|
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims
becomes known.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Punitive Damage Prohibited
This answering defendant alleges that plaintiff's Complaint fails to state facts|
sufficient to support an award of punitive or exemplary damages against AMCHEM. The|
Complaint, to the extent that it seeks exemplary or punitive damages, violates AMCHEM’s
right to procedural due process under the Fourteenth Amendment of the United States
Constitution, and the Constitution of the State of California, and fails to state a cause of
action upon which either punitive or exemplary damages can be awarded.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
_This answering defendant alleges that the Complaint, to the extent that it seeks
punitive or exemplary damages, violates AMCHEM’s right to protection from excessive
fines as provided in the Eighth Amendment of the United States Constitution and Article 1,
Section 17 of the Constitution of the State of California, and violates AMCHEM’s right to]
substantive due process as provided in the Fifth and Fourteenth Amendments of the
United States and California Constitutions, and thus fails to state a cause of action
supporting an award of punitive or exemplary damages.
PIFTY-SIXTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited
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,
15
ANSWER OF BAYER CROPSCIENCE, INC, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSwo wom N DH FF WN
PNY Be SB Be se Be Be Be Be RB
S$ 5S bo aR RG F&F OH NY SF DO
22
BRYDON
Huco & PARKER
135 MAG STREET
204 FLOOR
San Francieco, CA 94108
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.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited
Plaintiff'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.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Negligent Hiring Claim Invalid
An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.
4th 1235 (2001).
HIFTY-NINTH AFFIRMATIVE DEFENSE
Right to Amend
This defendant will assert any and all additional defenses that arise during the
course of this litigation and reserves the right to amend its answer to assert such defenses.
SIXTIETH AFFIRMATIVE DEFENSE
Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,
disease or cause other than as alleged.
SIXTY-FIRST AFFIRMATIVE E
No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be|
held jointly and severally liable with the other named defendants.
PRAYER
WHEREFORE, this answering defendant prays for judgment as follows:
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ANSWER OF BAYER CROPSCIENCE, INC,, successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSo ma N DBD HD FF YW N
MON ee RS
Se S 20 BN BD GD FF S82 N KF ©
BRYDON
HUGO & PARKBR
135 MAIN SURED
20 FLOOR,
‘San Francisco, CA 94105
1, That Plaintiff take nothing by reason of their Complaint or any claims stated
therein;
2. That Plaintiff's Complaint and each cause of action contained therein be
dismissed with prejudice against AMCHEM;
3. For costs of suit; and
4, For such other and further relief as the Court deems just and appropriate in|
the circumstances.
Dated: December 17, 2008 BRYDON HUGO & PARKER
By: __/s/___ Robert L. Oca
John R. Brydon
George A. Otstott
Robert L. Oca
Attorneys for Defendant
BAYER CROPSCIENCE, INC., successor to
AMCHEM PRODUCTS, INC,
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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSCo we N AH Fw NE
YN WwW RM NH NM BR NM Rm eS
Sa AR Rr ROS SN = Soe ew RDM SB YW NHN |= CO
Tobey, Charles (Bayer CropScience)
San Francisco County Superior Court Case No. CGC-07-274226
LexisNexis Transaction No. 23083484
PROOF OF SERVICE
Tam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, California 94105. On the date below, I served the following:
ANSWER OF BAYER CROPSCIENCE, INC. SUCCESSOR TO AMCHEM
PRODUCTS, INC. TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY
- ASBE!
on the following:
BRAYTON PURCELL LLP (Novato) See LexisNexis Service List
222 Rush Landing Road
Novato, CA 9494!
Fax: (415) 898-1247
© By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.
I declare under penalty of perjury that the above is true and correct.
Executed on December 29, 2008, at San Francisco, Califggnia.
Margarita Berns
1
PROOF OF SERVICE