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

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                                Edward R. Hugo, Est [CSB No. 124839]

Roland E. The, Es B No. 16451

BRYDON HUGO & PARRER ELECTRONICALLY
135 Main Strect, 20% Hoon FILED
San Francisco, California 94105 Superior Court of Californie,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 SEP 11 2007

GORDON PARK-LI, Clerk
BY: CHRISTLE ARRIOLA
Deputy Clerk|

Attorneys for Defendant
FOSTER WHEELER LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, [Asbestos]
Case No: CGC-07-274226

ANSWER OF FOSTER WHEELER LLC
vs. TO COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

Plaintiff,

ASBESTOS DEFENDANTS (BP)
As Reflected on Exhibits B, B-1, C, H; 1;
and DOES 1-8500,

Defendants,

COMES NOW Defendant FOSTER WHEELER LLC (hereinafter “Defendant” or
“FOSTER WHEELER’) and answers plaintiff's Complaint for Personal Injury — Asbestos
(hereinafter the “Complaint”) on file herein. Counsel for FOSTER WHEELER and
plaintiff have stipulated that the Third Cause of Action (False Representation) and all
claims/allegations of punitive damages inclusive are dismissed without prejudice against
FOSTER WHEELER and therefore answers the remainder of the Complaint 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

Le

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSkind in any amount whatsoever from FOSTER WHEELER.

RESERVATION OF RIGHT TO TRIAL BY JURY
FOSTER WHEELER 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 cach 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 |, 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 rclief 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 |, Section 7, of the Constitution of the State of California.

FOURTH AFFIRMATIVE DEFENSE

Unconstitutional Taking of Private Property for Public Use Without Just Compensation

The Complaint, and each cause of action thereof, which is admittedly based upon

2.

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSa 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 of 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 FOSTER WHEELER, 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 FOSTER WHEELER 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 injurics 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 injuri

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 FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSEVENTH 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 AFFIRMATIVE DEFENSE
Estoppel
This answering defendant alleges that as a result of the acts, conduct and/or
omissions of plaintiff and his agents, or any of them, and each cause of action presented

+

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INTURY — ASBESTOStherein, 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 DEFENSE

Notice of Danget
Plaintiff was advised, informed, and warned of any potential hazards and/or

dangers, if there were any, associated with the normal or foresccable 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 plaintiff's 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
place at any premises, if any, for which FOSTER WHEELER had any legal responsibility,

were manufactured, packaged, distributed or sold in accordance with contract

5.

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSspecifications 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 FOSTER WHEELER has no liability for the
acts, omissions or otherwise of any other defendant or entity because FOSTER
WHEELER 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 AFFIRMATIVE DEFENSE

No Foresceable 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 AFFIRMATIVE DEFENSE

No Right to Control
This answering defendant alleges that any loss, injury, or damage incurred by

Plaintiff was proximately and legally caused by the negligent or willful acts or omissions
of parties which FOSTER WHEELER neither controlled, nor had the right to control, and

was not proximately caused by any acts, omissions, or other conduct of FOSTER

6

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSWHEELER.

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 FOSTER WHEELER had
any legal 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 FOSTER WHEELER.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Due Care and Diligence
This answering defendant alleges that FOSTER WHEELER exercised duc care and

diligence in all of the matters alleged in the Complaint, and no act or omission by
FOSTER WHEELER 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
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.

7

‘ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTWENTY-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 FOSTER WHEELER.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Other Parties ility 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 FOSTER
WHEELER.

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,
FOSTER WHEELER is entitled to a percentage contribution of the total liability from said
co-defendants in accordance with the principles of equitable indemnity and comparative

8

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOScontribution.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Assumption of Risk by Plaintiff's Employer(s)

This answering defendant alleges that the Complaint and cach 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 FOSTER WHEELER did not have an
appreciable share of the market for the asbestos-containing products which allegedly
caused plaintiff's injuries, which occurrence FOSTER WHEELER expressly denies.
Accordingly, FOSTER WHEELER 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 FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTHIRTY-THIRD AFFIRMATIVE DEFENSE

Insufficient Facts to Show Substantial Market Share of this Defendant

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 cach 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 FOSTER WHEELER’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 FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSTHIRTY-SEVENTH AFFIRMATIVE DEFENSE

No Successor Liability
This answering defendant alleges that FOSTER WHEELER has no liability for the

acts, omissions or otherwise of any other defendant or any other entity because FOSTER
WHEELER 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 Ri
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 FOSTER WHEELER, ic. FOSTER WHEELER’s liability should be reduced
in proportion to the knowledge of plaintiff.

FORTIETH AFFIRMATIVE DEFENSE

Civil Code Section 1431.2

This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint
and to each cause of action therein.

-l-

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSFORTY-FIRST AFFIRMATIVE DEFENSE

Workers’ Compensation Exclusive Remed:

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 daim 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 FOSTER WHEELER premises, FOSTER WHEELER
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 plaintiff's work, and, further, to fully indemnify FOSTER WHEELER, and to hold
FOSTER WHEELER harmless, for all responsibility and liability arising out of said work,
and/or any injuries allegedly incurred by plaintiff as a result of any of said work.
FOSTER WHEELER 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 FOSTER WHEELER.

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ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSFORTY-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 FOSTER
WHEELER is not liable.

FORTY-SIXTH AFFIRMATIVE DEFENSE

Good Faith
This answering defendant alleges that plaintiff's claim for punitive damages is
barred because FOSTER WHEELER 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 FOSTER WHEELER was under no legal

duty to warn plaintiff of the hazard associated with the use of products containing
asbestos or their existence at any premises owned, operated, controlled or otherwise by
FOSTER WHEELER. The purchasers of said products, the plaintiff, plaintiff's employers,
his unions 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 plaintiffs damages, if any.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

Work Hazard Precaution

This answering defendant alleges that plaintiff's employer(s) was/were advised
and wamed of any potential hazards and/or dangers associated with the normal and
foreseeable conduct with, or storage and disposal of the products referred to in the

-13-

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSComplaint, 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 suc 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 hercin.

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.

FIFTY-THIRD AFFIRMATIVE DEFENSE

Failure to Allege with Particularity
This answering, defendant alleges that plaintiff's Complaint fails to set out its
-14-

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSclaims 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

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).

FIFTY-FIFTH 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.
FIFTY-SIXTH 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.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
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:
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 FOSTER WHEELER;
-15-

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS3.

4,

For costs of suit; and

For such other and further relief as the Court deems just and appropriate in

the circumstances.

DATED: September 10, 2007 BRYDON HUGO & PARKER

By:__/s/ Roland E. The
Edward R. Hugo
Roland E. The
Attorneys for Defendant
FOSTER WHEELER LLC

-16-

‘ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSCharles Tobey us. Asbestos Defendants (BP)
San Francisco County Superior Court Case No. CGC-07-274226

PROOF OF SERVICE

1am 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 servicebhplaw.com and my
business address is 135 Main Street, 20% Floor, San Francisco, California 94105. On the
date below, | served the following:

ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY —
ASBESTOS

OBJECTION TO COURT COMMISSIONER ACTING AS JUDGE PRO TEMPORE
AT TRIAL

on the following:

David R. Donadio Berry & Ber
Brayton Purcell P.O. Box 16070

222 Rush Landing Road Oakland, CA 94610
Novato, CA 9494! Fax: (510) 835-5117

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.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

© By placing the document(s) listed above ina sealed envelope and placing the
envelope for collection and mailing on the date below following the firm’s
ordinary business practices. I am readily familiar with the firm’s practice of
collection and processing correspondence for mailing. Under that practice it
would be deposited with U.S. Postal service on the same day with postage
thereon fully prepaid at San Francisco, California in the ordinary course of
business. | am aware that on motion of 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.

o By placing the document(s) listed above in a sealed envelope designated for
Federal Express overnight delivery and depositing same with fees thereupon
prepaid, ina facility regularly maintained by Federal Express, addressed as
set forth above.

9 by causing personal delivery of the documents(s) listed above to the person(s)
at the address(es) set forth above.

I declare under penalty of perjury that the above is true and correct. Executed on
September 10, 2007, af San Francisco, California.

/s/ Kenneth E. Dador
Kenneth E. Dador

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ANSWER OF FOSTER WHEELER LLC TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS