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

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JACKSON & WALLACE
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GABRIEL A. JACKSON, State Bar No. 98119
PETER K. RENSTROM, State Bar No. 148459

CATHERINE E. GOLDEN, State Bar No. 127694 . ELECTRONICALLY
JACKSON & WALLACE LLP FILED
55 Francisco Street, 6th Floor Superior Court of Californk
San Francisco, CA 94133 Posey of San Fronnionn
Tel: 4159 32 6300 County of San Francisco
Fax: 415.982.6700 SEP 03 2008
m GORDON PARK-LI, Clerk
Attomeys for Defendant BY: RAYMOND K. WONG
THE BUDD COMPANY Depully Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY GF SAN FRANCISCO
RUFUS ALEXANDER, Case No. 274719
Plaintiff, ANSWER OF DEFENDANT THE BUDD
COMPANY TO PLAINTIFF'S
v. UNVERIFIED COMPLAINT FOR

PERSONAL INJURY- ASBESTOS
ASBESTOS DEFENDANTS (BP),

Defendant.

DEFENDANT THE BUDD COMPANY (hereinafter "DEFENDANT") answers the
unverified Complaint herein on its own behalf and on behalf of no other defendant or entity as
follows:

Pursuant to California Code of Civil Procedure section 431.30(¢), DEFENDANT denies
generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by plaintiff therein states

facts sufficient to constitute a cause of action against DEFENDANT.
SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts DEFENDANT's alleged “market share" liability, or

“enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action

against DEFENDANT.
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THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle plaintiff to an award of punitive damages against DEFENDANT.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive DEFENDANT of its
property without due process of law under the Califomia Constitution and United States
Constitution.
FIFTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would violate the United States
Constitution's prohibition against laws impairing the obligation of contracts.
SIXTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 338(1),
338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code, section
2725.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff unreasonably delayed in bringing this action, without good cause therefore, and
thereby has prejudiced DEFENDANT as a direct and proximate result of such delay; accordingly,
his action is barred by laches and by section 583 et seq. of the Code of Civil Procedure.
NINTH AFFIRMATIVE DEFENSE
Plaintiff was negligent in and about the matters alleged in the Complaint and in each
alleged cause of action; this negligence proximately caused, in whole or in part, the damages
alleged in the Complaint. In the event plaintiff is entitled to any damages, the amount of these

damages should be reduced by the comparative fault of plaintiff and any person whose negligent
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acts or omissions are imputed to plaintiff.
TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks
and hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff was proximately caused by the negligent
or willful acts or omissions of parties whom DEFENDANT neither controlled nor had the right to
control, and was not proximately caused by any acts, omissions or other conduct of
DEFENDANT.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by plaintiff or
by others; the misuse, abuse or alteration was not reasonably foreseeable to DEFENDANT, and
proximately caused any loss, injury or damages incurred by plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that its products were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that any
recovery by plaintiff on the Complaint on file herein is barred in consequence of the exercise of
those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which plaintiff are entitled, if any, should be reduced by
the amount of damages which would have otherwise been mitigated.

FIFTEENTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction over the matters alleged in the Complaint

because the Complaint and each alleged cause of action against DEFENDANT are barred by the
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provisions of California Labor Code, section 3600, et seg.
SIXTEENTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiff
was employed and was entitled to receive Workers’ Compensation benefits from his employer's
workers’ compensation insurance carrier; that all of plaintiff's employers, other than
DEFENDANT, were negligent in and about the matters referred to in said Complaint, and that
such negligence on the part of said employers proximately and concurrently contributed to the
happening of the accident and to the loss or damage complained of by plaintiff, if any there were;
and that by reason thereof DEFENDANT is entitled to set off and/or reduce any such Workers’
Compensation benefits received or to be received by plaintiff against any judgment which may be
rendered in favor of plaintiff. (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)
SEVENTEENTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiff's
employers were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers proximately and concurrently contributed to any less or
damage, including non-economic damages, complained of by plaintiff, if any there were; and that
DEFENDANT is not liable for said employers’ proportionate share of non-economic damages.
EIGHTEENTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that at the time of the injuries alleged in the Complaint, parties
other than this DEFENDANT were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said parties proximately and concurrently
contributed to any loss or damage, including non-economic damages, complained of by plaintiff,
if any there were; and that DEFENDANT herein shall not be liable for said parties’ proportionate
share of non-economic damages.
NINETEENTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that at all times relative to matters alleged in the Complaint, all of
plaintiff's employers, other than DEFENDANT, were sophisticated users of asbestos-containing

products and said employers’ negligence in providing the product to its employees in a negligent,
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careless and reckless manner was a superseding cause of plaintiff's injuries and damages, if any.
TWENTIETH AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive, Worker's Compensation benefits
from DEFENDANT under the Labor Code of the State of California as a consequence of the
alleged industrial 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 his rights to reimbursement for Worker's
Compensation benefits that plaintiff has received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive Worker's Compensation benefits
from DEFENDANT under the Labor Code of the State of California as a consequence of the
alleged industrial injury referred to in the Complaint, DEFENDANT demands repayment of any
such Worker's Compensation benefits in the event that plaintiff recovers tort damages as a result
of the industrial injury allegedly involved here. Although DEFENDANT denies the validity of
plaintiff's claims, in the event those claims are held valid and not barred by the statute of
limitations or otherwise, DEFENDANT asserts that cross-demands for money have existed
between plaintiff and DEFENDANT and the demands are compensated, so far as they equal each
other, pursuant to California Code of Civil Procedure section 431.70.

TWENTY-SECOND AFFIRMATIVE DEFENSE

At all times and places in the Complaint, 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-THIRD AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products produced by DEFENDANT, if any,
were in conformity with the existing state-of-the-art, and as a result, these products were not
defective in any manner.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

DEFENDANT did not and does not have a substantial percentage of the market for the
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asbestos-containing products which allegedly caused plaintiff's injuries and damages. Therefore,
DEFENDANT may not be held liable to plaintiff based on this DEFENDANT's alleged
percentage share of the applicable market.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
DEFENDANT denies any and all liability to the extent that plaintiff asserts
DEFENDANT 's alleged liability as a successor, successor in business, successor in product line
or a portion thereof, assign, predecessor, 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 for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of
which is asbestos.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
DEFENDANT alleges that plaintiff's claims are or may be barred in whole or in part by
res judicata, collateral estoppel, issue preclusion and/or release.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
DEFENDANT aileges that it is immune from liability for any alleged failure to warn
plaintiff of material risks associated with DEFENDANT's products because such risks were or
should have been obvious to a reasonably prudent product user in plaintiff's position, or were
otherwise a matter of common knowledge to persons in the same or similar position to plaintiff.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
This court lacks subject matter jurisdiction over the causes of action alleged in the
Complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
As a result of plaintiff's unreasonable delay in bringing this action, without good cause
therefore, in addition to his other unreasonable acts and omissions, plaintiff has waived each or

some of the claims stated or purportedly stated in the Complaint.
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THIRTIETH AFFIRMATIVE DEFENSE
The activity alleged in the Complaint, to the extent that it was engaged in by
DEFENDANT, if at all, was not ultrahazardous under California law.
THIRTY-FIRST AFFIRMATIVE DEFENSE
California Civil Code sections 1431.1 through 1431.5, known as the Fair Responsibility
Act of 1986, is applicable at least in part to the present action and to certain claims therein, and
based upon the principle of comparative fault, the liability, if any, of DEFENDANT, if liable at
all, shall be several only and shall not be joint. DEFENDANT, if liable at all, shall be liable as to
certain claims only for the amount of non-economic damages allocated to DEFENDANT in direct
proportion to DEFENDANT's percentage of fault, if any, and a separate and several judgment
shall be rendered against DEFENDANT for non-economic damages, if any.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was the cause
in fact of any alleged injuries or damages suffered by plaintiff as alleged in the Complaint.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was the
proximate cause of any alleged injuries or damages suffered by plaintiff as alleged in the
Complaint.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
If plaintiff was injured as alleged in the Complaint, those injuries were proximately
caused by allergies, sensitivities and idiosyncrasies particular to plaintiff, not found in the general
public and unknown and unknowable to DEFENDANT. Such injuries, if any, were not
reasonably foreseeable to DEFENDANT.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
At all times relevant, DEFENDANT's acts and omissions were in conformity with all
government statutes and regulations and all industry standards based upon the state of knowledge
existing at the time of the acts or omissions.

if
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THIRTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff has failed to join all parties necessary for full and just adjudication of the

purported causes of action asserted in the Complaint.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiff has directed, ordered, approved and/or ratified
DEFENDANT's conduct and plaintiff is therefore estopped from asserting his claims alleged in
the Complaint as a result of his own acts, conduct or omissions.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiff's claims are preempted by the Federal Employers
Liability Act (45 U.S.C. §§ 51 et seq.) and/or the Locomotive Boiler Inspection Act (49 U.S.C. §§
20701 et seq.) and/or the Safety Appliances Act (49 U.S.C. §§20301 et. seq.), all as recodificd by
the Federal Rail Safety Act, requiring that an action against the rail employer under the F.E.L.A.
is plaintiff's exclusive remedy.

THIRTY-NINTH AFFIRMATIVE DEFENSE

DEFENDANT refers to and incorporates herein each and every affirmative defense
pleaded by the other parties herein to the extent that such defenses are not inconsistent with the
matters stated herein.

FORTIETH AFFIRMATIVE DEFENSE

DEFENDANT alleges that it presently has insufficient knowledge or information on
which to form a belief as to whether it may have additional, as yet unasseried defenses available.
DEFENDANT reserves herein the right to assert additional defenses in the event discovery
indicates that they would be appropriate.

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WHEREFORE, DEFENDANT prays:

qd) That plaintiff take nothing by his 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 Workers
Compensation or other benefits as alleged above; and

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

Dated: September 3 » 2008 JACKSON & WALLACE LLP

TROM
Attorneys for Defendant
‘THE BUDD COMPANY

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Rufus Alexander, v. Asbestos Defendants (BP) S.F.S.C #274719

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San

Francisco County, California. I am over the age of eighteen years and not a party to the within-
entitled action. My business address is 55 Francisco Street, 6th Floor, San Francisco, California
94133. On September 3 ; 2008, 1 electronically served pursuant to General Order No. 158,

the following document(s);

ANSWER OF DEFENDANT THE BUDD COMPANY TO
PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY-ASBESTOS

on interested partics in this action by causing Lexis Nexis E-Service program pursuant to General

Order No. 158, to transmit a true copy thereof to the email address(es) of the following party(ies):

BRAYTON PURCELL LLP and

222 Rush Landing Road
Novato CA 94928 *#*Please See Lexis Nexis Service List***

The above document(s) were transmitted by Lexis Nexis E-Service and the transmission.
was reported as complete without error.

I declare under penalty of perjury pursuant to the laws of the State of Califomia that the
foregoing is true and correct and was executed on September Zs, 2008, at San Francisco,

California.

Nic Lawson-Padia

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