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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                ii

| |
|| BRUCE MeLEOD, State Bar No. 071906
| FILICE BROWN EASSA & McLEOD LLP

2 |i Lake Merritt Pla ELECTRONICALLY |
1999 Harrison Street, Eighteenth Floor
Jakland, California 94612-3541 cat NEO na

cl: (310) 444-3131 County of San Francisco

x: (510) 839-7940 AUG 10 2007
GORDON PARK-LI, Clerk

5
BY: VANESSA WU
él Deputy Cif
8| SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10
1 || CHARLES TOBEY, ) Case No. 27.
2 |} }
Plaintiffs, } DEFENDANT THE DOW CHEMICAL
Bi v } COMPANY'S ANSWER TO COMPLAINT
| ) FOR PERSONAL INJURY - ASBESTOS
4 DANTS (B*P)..etal,
)
)
dants. )
}
19} COMES NOW defendant THE DOW CHEMICAL COMPANY (hereinafter “DOW”) and
|

-y way of response to plaintiffs” Complaint for personal injury - asbestos (“Complaint”), and

21 || pursuant to the terms of California Code of Civil Procedure § 431.30, generally denies each and

every, all and singular of the allegations of the Complaint. DOW further specifically denies that

plaintiffs have been damaged in any sum or sums, whatsoever, o* at all, and specifically denies that

24 || it is liable to plaintiffs in any sum or sums, whatsoever, or at all, for 94

1, compensatory,

punitive or any other type of damage.

ole
IPANY'S ANSWER TO COMPLAINT FOR PERSONA:

ASBESTOS
AEM s4H6E

DEFENDANT THE DOW CUEMICA1 AS AND FOR A FURTHER, SEPARATE, DISTINCT AND AFFIRMATIVE
‘NSE, DEFENDANT ALLEGES:

That the Complaint, and each cause of action stated therein, fails to state a claim for which

ief may be granted.

5 |} AS AND FOR A SECOND,
6 || DEFENSE, DEFENDANT ALLEG:

EPARATE, DISTINCT AND AFFIRMATIVE

‘That neither this Complaint, nor any of the -s of action therein, states facts

8 |} sufficient to constitute a cause of action for equitable relief against this answering defendant.

of AS AND FOR A THIRD, SEPARATE, DISTINCT AND AFFIRMATIVE

|| DEFENSE, DEFENDANT ALLEGE!
‘That the Complaint fails to properly invoke the equity jurisdiction of the court.

AS AND FOR A FOURTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEGES:

That plaintiif”s Complaint, and each cause of action stated therein, is barred by the
15 |) applicable statutes of limitations, including but not limited to, California Code of Civil Procedure

16 |] §§ 312,335.

1, 337.15, 338, 338.1, 339, 340.2, 340.8, 343, 361, 361.1, 366.2 and

California Commercial Code § 2
AS AND FOR A FIFTH, SEPARATE, DISTINCT AND AFFIRMATIVE
|| DEFENSE, DEFENDANT ALLEGES:

‘That the Complaint, and each cause of action stated therein, is ambiguous and uncertain.

21 | AS AND FOR A SIXTH, SEPARATE, DISTINCT AND AFFIRMATIVE

That plaintiff has unreasonably delayed the commencement of this action and prejudiced
24 || this answering defendant whereby the Complaint, and each cause of action therein, is barred by

25 |] the doctrine of laches,

2

DEFENDAN? THE DOW CHEMICAL COMPANW'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
| NERO MALS TBEM SaB6uSAS AND FOR A SEVENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

SE, DEFENDANT ALLEGES:

|DEFI

and exclusions on the

That any breach of warranty claim is barred by written disclaimer
labels of the subject products.
AS AND FOR AN EIGHTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEG!

That plaintiff's claim for breach of warranty is barred to the extent that plaintiff seeks

recovery for the breach of a warranty that was not expressly printed on the label supplied with

the product.
AS AND FOR A NINTH, SEPARATE, DISTINCT AND AFFIRMATIVE

i DEFENSE, DEFENDANT ALLEGES:

‘That plaintiff's damages, if any, are completely or in part the product of plaintiff's failure

to mitigate as required by law.
AS AND FOR A TENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEGES:

| ‘That if plaintiff suffered injuries attributable to the use of any product referred (0 in
f
| plaintiff's Complaint, which injuries are expressly denied, the injuries were solely caused and

| attributable to the unreasonably, unforeseeable and inappropriate purpose and improper use
| which was made of the product and the failure by plaintiff or others to follow fabel instructions,

AS AND FOR AN ELEVENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEG

‘That parties to this action other than this answering defendant were negligently or legally

3 |} responsible, or otherwise at fault for any damages alleged in the Complaint, which damages are

hercin denied and therefore, in the event of any liability, whether by settlement or judgment in
favor of any other party against this answering defendant, an apportionment of fault should be

made as to all parties by the court or jury, and this answering defendant requests a judgment and
declaration of indemnification and contribution against all other parties or persons in accordance

|
with the apportionment of fault between the parties.

‘S ANSWER TO COMPLAINT POR PERSONAL INJUR:

DEEENDANY TUE DOW GIEMICAL COMPAN1 AS AND FOR A TWELFTH, SEPARATE, DISTINCT AND AFFIRMATIVE

LLEGES:

NSE, DEFENDANT A
That all activities of this answering defendant alleged in the Complaint conform to

4 |] statutes, governmental regulations and industry standards based upon the state of knowledge

5 || existing at the time alleged in the Complaint and each cause of action therein.

6) AS AND FOR A THIRTEE

7 || DEFENSE, DEFENDANT ALLEGES:

‘TH, SEPARATE, DISTINCT AND AFFIRMATIVE

That the manufacture, sale and labeling of the products and chemicals alleged in the

sd therein, and all other acts of this defendant conceming said

Complaint, and each claim

products and chemicals, if any there were, were Jicensed and permitted by the State of California

and the United States.

AS AND FOR A FOURTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEGES:

that the benefits of the products, chemicals and compounds referred fo in plaintif?"s

Complaint outweigh the risks of danger, if any, inherent in such product.

AS AND FOR A FIFTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

DEFENSE, DEFENDANT ALLEG

18 |] That plaintiff or others modified, altered, and changed the products. chemicals and
|

19 || compounds referred to in plaintiff's Complaint, so that such changes in said products, chemi

20 || and campourids proximately caused the injuries, loss and damages complained of, if any there

24 | ‘were,

2) AS AND FOR A SIXTE I, SEPARATE, DISTINCT AND AFFIRMATIVE |
23 || DEFENSE, DEFENDANT ALLEGE!

4 | ‘That the subject product and its component parts were not used as instructed and

25 || intended, but were subjected to unforeseeable and unanticipated misuse, abuse, alteration, and/or
26 || modification by parties other than this answering defendant, which said misuse, abuse, alteration,

27 || and/or modification was the proximate cause of the injuries and damages. if any. allegedly
'
|

suffered by plaintiff.

“de
DEFENDANT THE DOW CHEMICAL COMPANY'S ANSWER TO COMPLAINT FOR PERSONAL INJURY ASRESTOS
| ‘ny Mone Mr seat| AS AND FOR A SEVENTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE
2 || DEFENSE, DEFENDANT ALLEGES:
3 ‘That the injuries and damages, if any, alleged by plaintiff in his Complaint were

caused by the idiosynerasy of his bodily composition and consequential

4 |) proximat
I

5 || untoreseeable allergic reaction to the product and/or one or more of its components.

6 || AS AND FOR AN EIGHTEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE
zhi . DEFENDANT ALLEGES:

|
8 ‘That plaintiff failed to give notice to this answering defendant within a reasonable time of

the claimed breach of warranty alleged in the Complaint and in the manner and form prescribed

by Commercial Code § 2607

AS AND FOR A NINETEENTH, SEPARATE, DISTINCT AND AFFIRMATIVE

12 || DEFENSE, DEFE

ANT ALLEGES:
3 | ‘That plaintiff has failed to stale a cause of action against this answering defendant for

14 | breach of warranty, and the Complaint fais i allege privity between plaintiff and this answering
jefendant.

AS AND FOR A TWENTIETH, SEPARATE, DISTINCT AND AFFIRMATIVE

|
17 || DEFENSE, DEFENDANT ALLEG!

18 ‘That the acts. conduct and omissions of plaintiff actually and proximately caused any
19 || injuries alleged in the Complaint, which injuries are denied herein, and this answering defendant

has no liability to plaintiff or at all, or in the alternative, this answering defendant is only liable in

R
8

|| an amount equal to its proportionate fault.

AS AND FOR A TWENTY-FIRST, SEPARATE, DISTINCT AND.

SE, DEFENDANT ALLEGES:

23 || AFFIRMATIVE DEFE

24 ‘That the alleged injuries of plaintiff, which are herein denied, were actually and

proximately caused solely by the comparative negligence of plaintiff and each of the claims

|
stated therein is barred by the reason of this comparative negligence

Se

DEFENDANY THE DOW CHEMICAL COMPANY'S ANSWER TO COMPLAINT FOR PERSONAL

RY-ASBESTOS|
AS AND FOR A TWENTY-SECOND, SEPARATE, DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

‘That plaintiff knowingly assumed the risk of any injury or damage alleged in the
plant

AS AND FOR A TWENTY-THIRD, SEPARATE, DISTINCT AND
SE, DEFENDANT ALLEGES:

|
| ARFIRMATIVE DERE!
That this answering defendant denies any and all Hability to plaintiff, but if liability is
found, the responsibility of this answering defendant is small in proportion to the alleged liability
and responsibility of other named defendants and plaintiff should be limited in seeking recovery
from this answering defendant for that proportion of alleged injuries and damages for which this
answering defendant is liable or responsible under any applicable legal theory.
AS AND FOR A TWENTY-FOURTH, SEPARATE, DISTINCT AND

AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That plaintiff by his acts, conduct and omissions has waived the claims allegedly stated in

[the Complaint and each cause of action there

NTY-FIFTH, SEPARATE, DISTINCT AND

D.

AS AND FOR A TWE!
| APFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
That plaintiff, by his acts, conduct and omissions are estopped trom asserting the claims

|| allegedly stated in the Complaint and each cause of action therein.

AS AND FOR A TWENTY-SIXTH, SEPARATE, DISTINCT AND

AFFIRMATIVE DEF

NSE, DEFENDANT ALLEGES:

| ‘That the products alleged in the Complaint were used by a sophisticated
user/intermediary. said user/intermediary having adequate and complete warnings of any risk

|| involved in the use of said products and, for that reason, this answering defendant has ne duty to
independently warn plaintiffs of the said risks, and the claim of plaintiff is thereby barred.
ut

at

6
DEFENDANT THE DOW CHEMICAL COMPANY'S ANSWER TO CO’I AS AND FOR A 'TWENTY-SEVENTH, SEPARATE, DISTINCT AND

DEFENDANT AL

2 || AFFIRMATIVE DEFENS
That plaintiff's Complaint, and the purported causes of action stated therein, is

f has not exhausted all

prematurely brought and not ripe for adjudication, in that plainti

5 || cognizable legal and administrative remedies and prerequisites prior to instituting the instant
6 || action.
7 AS AND FOR A TWENTY-EIGHTH, SEPARATE, DISTINCT AND

EFENDANT ALLEG

8 | AFFIRMATIVE DEFENS

9 That any injuries resulting from the use of the subject product or products, which injuries

10 || are hereby expressly denied, was not foreseeable to this answering defendant given the state of

knowledge and state-of-the-art at the time of the alleged injuries.
AS AND FOR A TWENTY-NINTH, SEPARATE, DISTINCT AND
13 || AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

‘Yhat at the time of the injuries alleged in the Complaint plaintiffs were employed and

15 || entitied to receive Workers” Compensation benefits from their employer; that plaintiff's
16 || cmployer was negligent in and about the matters referred to in said Complaint, and that such
17 || negligence on the part of said employer proximately and concurrently contributed to the injuries
18 |]and to the loss and damage complained of by plaintifi, if any there were: and that by reason

hereof, this answering defendant is entitled to set off any such benefits received or to be

received by plaintiff against any judgment which may be rendered in favor of plaintiff herein,

21 || pursuant to Wii? v. Jackson (1961) 57 Cal.2d 37.

22 AS AND FOR A THIRTIETH, SEPARATE, DISTINCT, AND AFFIRMATIVE

23 || DEFENSE, DEFENDANT ALLEGE:

a4 ‘That this answering defendant was not engaged in any ultra hazardous activity or in the
25 || manufacture, formulation, packaging, labeling, distribution or sale of any product. and answering

26 || defendant is therefore not strictly liable or liable for trespass.

“7.
‘SWER TO COMPLAINT FOR PERSONAL

AL COMPANY'SAS AND FOR A THIRTY-FIRST, SEPARATE, DISTIN

T, AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

‘That this answering defendant is not liable for trespass, based on plaintiff's implied
consent to all of answering defendant’s activities.

AS AND FOR A THIRT)

| SOND, SEPARATE, DISTINCT, AND

| AFFIRMATIVE DE! NSE, DEFENDANT ALLEGES:

‘That said Complaint, to the extent that it seeks punitive or exemplary damages pursuant

|10 California Civil Code § 3294, violates this answering defendants right to procedural due
| process under the Fourteenth Amendment of the United States Constitution and under the

| Constitution of the State of California and therefore fails to state a cause of action for which
| punitive or exemplary damages may’ be awarded.

AS AND FOR A THIRTY-THIRD, SEPARATE, DISTINCT, AND

AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
‘That the Complaint, to the extent that it seeks punitive or exemplary damages pursuant to

ht to substantive due

California Civil Code § 3294 ef seg., violates answering defendant's ri

i i hei i
j| Process as provided in the Fifth and Fourteenth Amendments of the United States Constitution

| and the Constitution of the State of California, and therefore fails to state a cause of action for

which punitive or exemy
i
|

ry damages may be awarded.
AS AND FOR A THIRTY-FOURTH, SEPARATE, DISTINCT, AND.

AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That this answering defendant is not liable for trespass because it did not actively
yo -
participate in entering or causing any product to enter onto plaintiff's land or property, or possess

an intent to enter or cai

¢ any product to enier onto plaintiff's land or property

at

Mh

DEFENDANT THE DOW CHEMICAL COMPANY'S ANSWER TO COMPLAINT FOR PERSONAL INJURY —

ony 5AS AND FOR A THIRTY-FIFTH, SEPARATE, DISTINCT, AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

3 That the Complaint, and each cause of action stated therein, fails to state.a claim for

which relief can be granted because it is barred by the primary right doctrine as well as the

5 || doctrines of ves judicata and collateral estoppel.
| AS AND FOR A THIRTY-SIXTH, SEPARATE, DISTINCT, AND AFFIRMATIVE
7 || DEFENSE, DEFENDANT ALLEGES:

8 That defendant is not vicariously liable for any of the acts or omissions alleged in

9 || plaintiff's Complaint under the case of Privette v. Superior Court, (1993) 5 Cal 4th 689.

10 AS AND FOR A THIRTY-SE

NTH, SEPARATE, DISTINCT, AND
11 | AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

12} ‘That defendant has no duty to plaintiffs as a matter of law because plaintiff was

13 || employed by an independent contractor. Defi

dant also owes no duty to plaintiff because

aintiff"s injuries, if any, were caused by a condition or dang

. if any, which was or should
15 |} have been obvious to him.
16 AS AND FOR A THIRTY-EIGHTH DISTINCT AND AFFIRMATIVE DEFENSE,

|
17 || DEFENDANT ALLEGES:

‘That at the time of the injuries alleged in the Complaint, plaintiff was employed by the

‘s an employee or special employee and thus, Workers’ Compensation provided them
with their exclusive remedy and hence plaintiff's claims are barred under Labor Code §§ 3600.
|}3601, 3602, et seg

D FOR A THIRTY-NINTH DISTINCT AND AFFIRMATIVE DEFENSE,

‘That this answering defendant is not liable for any claims asserted against UNION

‘ARBIDE CORPORATION (UNION CARBIDE”) or any of its subsidiary entities, either as an

| Plaintiff's claims, Union Carbide was a publicly-held company that was not owned or controlled

by Dow. Union Carbide became a wholly-owned subsidiary of Dow on February 6, 2001, when

0.
‘CHEMICAL COMPANY'S ANSWER TO COMPLAINT FOR PERSONAL I

25

26 || alleged successor by merger or otherwise, At the time of the alleved conduct giving rise to
i
{ansition Sub Inc., a wholly-owned subsidiary of Dow, was merged into Union Carbide, with

|
| Union Carbide being the surviving corporation, Union Carbide remains a business entity that is
|

|

3 |} separate and distinct from this answering defendant.

AS AND FOR A FORTYITH DIST AND AFFIRMATIVE DEFENSE,
FENDANT ALLEGES:

‘That under the rule of comity, based upon the interests of all parties and the involved states.
7 || Calitomia’s interest in having its laws applied is non-existent or does not predominate, and the
8 |/imterests of defendant and other states will be impaired if their laws are not applied; therefore, the
laws of other states apply to the parties and issues of this case.

WHEREFORE, this answering defendant prays for judgment as follows:

1. ‘That plaintiff take nothing by reason of the Complaint filed herein;
2 || 2, ‘That this answering defendant be awarded costs of suit incurred herein:
B || 3. That if defendant is found liable, the degree of responsibility and liability for the
4 |} resulting damages be determined, and that defendant be liable only for the portion
15 |) of total damages in proportion to its total responsibility for same; and
16 | 4. For such other and furilier relief‘as the Court deems proper.

A & MeL BOD LLP

FILICE BROWN

i9 ||
20 |) By:

BRUCE McLEOD-
Atlomeys for Defend
THE DOW CHEMIC.

t |
L COMPANY

| _ -10-

| :NDANT THE DOW CHEMICAL COMPANY'S ANSWER TO COMPLAINT FOR PERSONAL, INJURY - ASBESTOS
| za Senta DENK Ses0e82I PROOF OF SERVICE
Charles Tobey v. Asbestos Defendants, (B*P), et al.
San Franeiseo County Superior Court, Case No. 274226

Lam a citizen of the United States, over 18 years of age and not party to the within action. I
mm employed in the county of Alameda; my business address is 1999 Harrison Street,
‘loor, Oakland, Califomia 94612-3541.

On the date listed below. I served the within documents:

DEFENDANT THE DOW CHEMICAL COMPANY'S 4
FOR PERSONAL INJURY - ASBESTOS:

NSWER TO COMPLAINT

On alll parties in this action, as addressed below, by causing a true copy’ thereof to be distributed as

follows:

9] ALL COUNSEL VIA ELECTRONIC TRANSMISSION
(SEE PLAINTIFF'S SERVICE LIST PROVIDED TO LEXIS NEXIS)

10
kl . J caused a true and correct copy of such document(s} to be
VIA ELECTRONIC electronically served on counsel of record by transmission
SERVICE to Lexis-Nexis File and Serve,

{ declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on. August //4 2007 in Oakland, California.

a
8

-t-

DOW CHEMICAL COMPANY'S ANSWER 10 COMPLAINT FOR PERSONAL INJURY - ASI
S04 BRM