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Gordon & Rees LLP
161 West Broadway
Suite 2000
San Diego, CA 92101
ROGER M. MANSUKHANI (SBN: 164463)
DANIEL D. BODELL (SBN: 208889)
MATTHEW A. MASON (SBN: 228056)
GORDON & REES LLP ELECTRONICALLY
101 West Broadway
Suite 2000 cutee Poni
San Diego, CA 92101 te,
Phone: (61 9) 696-6700 County of San Francisco
Fax: (619) 696-7124 AUG 11 2008
GORDON PARK-LI, Clerk
BY: VANESSA WU
Attomeys for Defendant Deputy Clerk
HENNESSY INDUSTRIES, INC.
SUPERIOR COURT OF CALIFORNIA ~ COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE
RUFUS ALEXANDER, ) CASE NO. CGC-08-274719
Plaintiff, ; Complaint filed: 07/01/08
)
vs. }
) ANSWER TO COMPLAINT FOR
ASBESTOS DEFENDANTS (B%P} as ) PERSONAL INJURY — ASBESTOS
Reflected on Exhibits B, B-1,C,G,H, Land =}
DOES 1-8500, et al., } Judge: Robert L. Dondero
} Dept: Dept. 206
Defendants. }
) Trial date: Not set
)
COMES NOW defendant, HENNESSY INDUSTRIES, INC., and in answer to plaintiffs
complaint on file herein, and each and every cause of action allegedly set forth therein, answers,
alleges and denies as follows:
L
This answering defendant denies each and every, all and singular, generally and
specifically, the allegations contained in the complaint, and each and every cause of action
allegedly set forth therein, as they may apply to this answering defendant.
IL.
Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was legally responsible in some manner
for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has
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ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSGordou & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101
OR nN mB
been damaged in the manner set forth in said unverified complaint and cach and every cause of]
action allegedly set forth therein.
He
Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was negligent and/or careless in any
respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the
manner set forth in said unverified complaint and each and every cause of action allegedly set
forth therein.
FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and causes of action therein
fail to state facts sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff was himself careless and
negligent in and about the matters referred to in the complaint and that such negligence and
carelessness on the part of the plaintiff proximately caused and contributed io the damages
complained of, if any there were.
THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of
ordinary care, should have known of the risks and hazards involved in the undertaking in which
plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and
voluntarily consent to asstume the risks and hazards involved in the undertaking.
FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff was himself solely and totally
negligent in and about the matters referred to in the complaint and that such negligence and
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ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSSuite 2000
Gordon & Rees LLP
101 West Broadway
San Diego, CA 92101
carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of
the negligence involved in this case and was the sole cause of the injuries and damages
complained of, if any there were.
FUFTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons without this defendant's knowledge and approval
redesigned, modified, altered, and used this defendant's products contrary to instructions and
contrary to the custom and practice of the industry. This redesign, modification, alteration, and
use so substantially changed the product's character that if there was a defect in the product --
which is specifically denied -- such defect resulted sclely from the redesign, modification,
alteration, or other such treatment or change and sot from any act or omission by this defendant.
Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be,
and was the direct and proximate cause of the injuries and damages, if any, that plaintiff]
allegedly suffered.
SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any
of the parties named herein, it is the sole and exclusive negligence and liability of the other
defendants, and not of this answering defendant.
SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, 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 plaintiffs on the complaint on file herein is barred in consequence of the exercise of
those sovereign powers.
ied
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS ~nw
Be
Gordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92161
EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, defendant alleges that the asbestos-containing products, if any, for which it may
have legal responsibility were installed, labeled, assembled, serviced, supplied, manufactured,
designed, packaged, distributed, marketed, and/or sold in accordance with contract specifications
imposed by its co-defendants, by the U.S. government, by plaintiff's employers and by third
parties yet to be identified.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the
complaint plaintiff was employed and was entitled to and did receive workers’ compensation
benefits from said employer. This defendant is informed and believes, and on the basis of said
information and belief alleges that, if the conditions as alleged in the plaintiff's complaint ate
found to exist, the plaintiffs employer was negligent and careless in and about the matters
referred to in said complaint and that said negligence on the part of the employer proximately
caused or contributed to the injuries and damages, if any, complained of by the plaintiff, and
further, that the plaintiffs employer assumed the risk of injury to the plaintiff, if any there was,
in that at the time and place of the incident such conditions, if any, were open and apparent and
were fully known to the plaintiff's employer; and that by reason thereof, this defendant is entitled
to set off any compensation benefits received or to be received by the plaintiff against any
judgment which maybe rendered in favor of the plaintiff herein.
TENTH AFFIRMATIVE DEFENSE
AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein are barred by the statutes of limitation and repose of California and any other relevant
state, including but not limited to the Hmitations set forth under sections 340.2 and 361 of the
Code of Civil Procedure of the State of California.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS101 West Broadway
Gordon & Rees LLP
Suite 2000
San Diego, CA 92101
ELEVENTH AFFIRMATIVE DEFENSE
AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in
bringing this action against defendant and that such delay substantially prejudiced this answering
defendant. Therefore, this action is barred by the doctrine of laches.
TWELFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein fail to state facts sufficient to constitute a cause of action against this answering
defendant pursuant to sections 3600, et seq., of the California Labor Code.
THIRTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiffs employer was
contributorily negligent and careless in and about the matters alleged in the complaint, and that
such negligence and carelessness was a proximate cause of any injuries and damages suffered by
plaintiff, if any there were.
FOURTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and
knowingly entered into and engaged in the operations, acts and conduct alleged in said
complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts
and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks
incident to said operations, acts and conduct at the time and place mentioned im the complaint.
FIFTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the 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.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSGordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101
SIXTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant is informed and believes and therefore alleges
that plaintiff is unable to identify the actual manufacturer or manufacturers of the asbestos
products which allegedly caused the injury which forms the basis of the complaint herein, and |
that said manufacturers were entities other than this defendant. Therefore, this defendant may
not be held liable for the injury of the plaintiff.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff and plaintiffs
employer were and are sophisticated users and knew independently or reasonably should have
known of any danger or hazard associated with the use of a product contaming asbestos and of]
exposure to high levels of dust of any sort.
EIGUTEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint
the products alleged to have caused plaintiff's injuries were designed, manufactured, sold,
distributed, labeled and advertised in compliance with the then existing state of the art in the
industry to which this defendant belonged and furthermore, that the benefits of any such product
design outweighed any risk of danger in the design and that any such product met the safety
expectations of plaintiff and the general public.
NINETEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or
otherwise compromised his claims herein, and accordingly, said claims are barred by operation
of law; alternatively, plaintiff has accepted compensation as partial settlement of those claims for
which this defendant is entitled to a set-off.
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TWENTIETH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
(actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein.
TWENTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to
make reasonable efforts to mitigate injuries and damages, if any.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this
defendant, by notification or otherwise, of any breach of express and/or implied warranties;
consequently, his claims of breach of express and/or implied warranties against this defendant
are barred.
TWENTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused by the
conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and successors in
interest, its parent company or companies, its affiliates, subsidiaries, or related companies and
enterprises.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, this answering defendant alleges that to the extent the amount of
punitive damages sought is unconstilutionally excessive under the United States Constitution, it
violates the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIII, and the
Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1.
iff
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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSGordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92104
TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff's claim for punitive damages
impermissibly seeks a multiple award of punitive damages as against this defendant in violation
of the following clauses: the Contracts Clause of Article L, section 10 of the United States
Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and Due Process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, Article IV, section 16 of the California Constitution.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that punitive damages are bared by the
Constitutions of the United States and California by virtue of their violation of one or more of
the following clauses: the Contracts Clause of Article I, section 10 of the United States
Constitution, the Excessive Fines Clause of the Eighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and due process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article 1, section 7 of the California Constitution; and the Equal Protection of|
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section 7 and 17, and Article [V, section 16 of the California
Constitution.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSuite 2000
Gordon & Rees LLP
101 West Broadway
San Diego, CA 92101
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the subject premises was net used in the
manner in which it was intended to be used, and as a proximate result of such abuse and misuse,
the plaintiff sustained the injuries and damages complained of, if any there were.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has failed to join a party or the parties
necessary for a just adjudication of this matter and has further omitted to state any reasons for
such failure.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of
commencement of suit.
THIRTIETH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff failed to exercise ordinary care for his
own safety and well-being, and that failure to exercise ordinary care proximately and directly
caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently,
this defendant is entitled fo the full pretection afforded by law.
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's injuries or illness, if any, were due to
the acts or omissions of a person or persons over whom this defendant had neither control nor the
right of control.
THIRTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that while specifically and vigorously denying the
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ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSGordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101
allegations of the plaintiff concerning liability, injuries and damages, to the extent that plaintiff
may be able to prove those allegations, this defendant states that they were the result of
intervening acts of superseding negligence on the part of the person or persons over whom this
defendant had neither control nor the right of control.
THIRTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons used this answering defendant's products, if indeed any
were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a
purpose for which the products were not intended, manufactured or designed. Plaintiff's injuries
and damages, if any, were therefore directly and proximately caused by his misuse and abuse of
such products.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's
product or products, which exposure is vigorously denied, was so minimal as to be insufficient to
establish a reasonable degree of probability that the product or products caused his claimed
injuries and illness.
THIRTY-FUFTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE. this answering defendant alleges that at the time of this filing, there was no good
ground to support the complaint as to this defendant. There is now no good ground to support
the complaint as to this defendant.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SLXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has waived any and ail claims sought
i
in this action and is estopped both to assert and to recover upon such claims.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSGordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101
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THIRTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has
been abolished in a case such as this, and should plaintiff prevail against this defendant, this
defendant's liability is several and is limited to its own actionable segment of fault, which fault is
vigorously denied.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted, or, if relief be granted, this defendant's
Constitutional right to substantive and procedural due process of law would be contravened.
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of actions asserted by the plaintiff]
fail to state a claim upon which relief can be granted, for if relief be granted, such relief would
constitute a taking of this defendant's property for a public use without just compensation, a
violation of this defendant's Constitutional rights.
FORTIETH AFFIRMATIVE DEFENSE
AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted because such relief would constitute a denial by
this court of defendant's Constitutional right to equal protection under the law.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff
against this entity is improper as plaintiff meorrectly alleges that this answering defendant is
responsible, in whole or in part, for the acts of one or more alternative entities. This answering
defendant denies those claims.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSuite 2000
101 West Broadway
San Diego, CA 92101
Gordon & Rees LLP
FORTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's claim of successor liability and
association with other entities is not factually or legally supported, and, as such, plaintiff has no
claim against answering defendant as asserted.
FORTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that it is not responsible for the product line or
items which plaintiff claims that it manufactured, distributed or sold. Rather, this answering
defendant asserts that another entity manufactured, distributed and sold this product line and is
legally responsible therefor.
FORTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that to the extent any claim for relief in the
complaint, or amended complaint, seeks to recover damages against this defendant for alleged
acts or omissions of predecessors or successors-in-interest to this defendant of any kind or
description, said defendant asserts that it is not legally responsible and cannot legally be held
liable for any such acts or omissions. This defendant further asserts that it cannot be held liable
for punitive damages and/or exemplary damages which are or may be attributable to the conduct
of any predecessor or successor-in-interest. Further, this defendant asserts that the conduct of
any predecessor or successor-in-interest cannot, as a matier of law, provide a legal basis for
liability or the imposition of damages against this defendant.
FORTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the product(s) or equipment which may have
been manufactured or distributed by this answering defendant were manufactured and/or
distributed in accordance with specifications and requirements supplied to this defendant by
individuals or entities including, but not limited to, the Umited States of America. The alleged
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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOShw
Gordon & Rees LLP
101 West Broadway
Suite 2000
San Diego, CA 92101
ZROAMISY
defect, if any, in said products was therefore caused by the mandatory specifications and
requirements, and the alleged defect was neither known to nor discoverable by this defendant
with the exercise of reasonable care.
FORTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's recovery against this answering
defendant is barred, diminished or reduced in that the product(s) or equipment, if any, utilized by
plaintiff was altered or changed from the original condition of said product(s) or equipment at
the time it left the possession and control of this defendant.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that California is not proper forum in which to
litigate this matter pursuant to California Code of Civil Procedure section 410.30 and applicable
case law.
WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions,
that this answering defendant be dismissed with costs of suit incurred herein, and for such other
and further relief as this court deems just and proper.
Dated: August ”_, 2008 GORDON & REES LLP
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By:
Roser M. hast
Daniel D. Bodel}
Matthew A. Mason
Attorneys for Defendant
HENNESSY INDUSTRIES, INC.
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS| SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.:
ROGER M. MANSUKHANI (SBN; 164463) PHONE: (619) 696-6700
DANIEL D. BODELL (SBN: 195250} FAX: (619) 696-7124
MATTHEW A, MASON (SBN: 228056)
GORDON & REES LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
ICE. Robert L. Dondero
SHORT CASE TITLE .
RUFUS ALEXANDER v. ASBESTOS DEFENDANTS DEPT: 206
ATTORNEYS FoR Defendant HENNESSY INDUSTRIES, INC. — CASE NUMBER: CGC-08-274719
PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a party to the
within action. My business address is; 101 West Broadway, Suite 1600, San Diego, CA 92101.
On August 11, 2008, I served the following document(s):
Answer to Complaint for Personal Injury - Asbestos
{X) BY ELECTRONIC SERVICE VIA LEXIS NEXIS FILE & SERVE. By sending
electronically a true and correct copy thereof to Lexis Nexis File & Serve
(www.lexisnexis.com/fileandserye) for service on all counsel of record by electronic
service pursuant to the Order Mandating Electronic Filing and Service of Asbestos
Pleadings and pursuant to CCP § 1010.6 and CRC 2060(c). The transmission was
reported as complete and without error.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on August 11, 2008,
FRCAMMDS2746:58501 780 4 1
PROOF OF SERVICE
Preview
Gordon & Rees LLP 161 West Broadway Suite 2000 San Diego, CA 92101 ROGER M. MANSUKHANI (SBN: 164463) DANIEL D. BODELL (SBN: 208889) MATTHEW A. MASON (SBN: 228056) GORDON & REES LLP ELECTRONICALLY 101 West Broadway Suite 2000 cutee Poni San Diego, CA 92101 te, Phone: (61 9) 696-6700 County of San Francisco Fax: (619) 696-7124 AUG 11 2008 GORDON PARK-LI, Clerk BY: VANESSA WU Attomeys for Defendant Deputy Clerk HENNESSY INDUSTRIES, INC. SUPERIOR COURT OF CALIFORNIA ~ COUNTY OF SAN FRANCISCO CIVIC CENTER COURTHOUSE RUFUS ALEXANDER, ) CASE NO. CGC-08-274719 Plaintiff, ; Complaint filed: 07/01/08 ) vs. } ) ANSWER TO COMPLAINT FOR ASBESTOS DEFENDANTS (B%P} as ) PERSONAL INJURY — ASBESTOS Reflected on Exhibits B, B-1,C,G,H, Land =} DOES 1-8500, et al., } Judge: Robert L. Dondero } Dept: Dept. 206 Defendants. } ) Trial date: Not set ) COMES NOW defendant, HENNESSY INDUSTRIES, INC., and in answer to plaintiffs complaint on file herein, and each and every cause of action allegedly set forth therein, answers, alleges and denies as follows: L This answering defendant denies each and every, all and singular, generally and specifically, the allegations contained in the complaint, and each and every cause of action allegedly set forth therein, as they may apply to this answering defendant. IL. Further answering said unverified complaint, and each and every cause of action allegedly set forth therein, this defendant denies that it was legally responsible in some manner for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has -1- ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSGordou & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92101 OR nN mB been damaged in the manner set forth in said unverified complaint and cach and every cause of] action allegedly set forth therein. He Further answering said unverified complaint, and each and every cause of action allegedly set forth therein, this defendant denies that it was negligent and/or careless in any respect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the manner set forth in said unverified complaint and each and every cause of action allegedly set forth therein. FIRST AFFIRMATIVE DEFENSE AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and causes of action therein fail to state facts sufficient to constitute a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff was himself careless and negligent in and about the matters referred to in the complaint and that such negligence and carelessness on the part of the plaintiff proximately caused and contributed io the damages complained of, if any there were. THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of ordinary care, should have known of the risks and hazards involved in the undertaking in which plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and voluntarily consent to asstume the risks and hazards involved in the undertaking. FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff was himself solely and totally negligent in and about the matters referred to in the complaint and that such negligence and ~2- ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSSuite 2000 Gordon & Rees LLP 101 West Broadway San Diego, CA 92101 carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of the negligence involved in this case and was the sole cause of the injuries and damages complained of, if any there were. FUFTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at all times and places mentioned in the complaint, plaintiff and/or other persons without this defendant's knowledge and approval redesigned, modified, altered, and used this defendant's products contrary to instructions and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the product's character that if there was a defect in the product -- which is specifically denied -- such defect resulted sclely from the redesign, modification, alteration, or other such treatment or change and sot from any act or omission by this defendant. Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be, and was the direct and proximate cause of the injuries and damages, if any, that plaintiff] allegedly suffered. SIXTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any of the parties named herein, it is the sole and exclusive negligence and liability of the other defendants, and not of this answering defendant. SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, 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 plaintiffs on the complaint on file herein is barred in consequence of the exercise of those sovereign powers. ied -3- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS ~nw Be Gordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92161 EIGHTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, defendant alleges that the asbestos-containing products, if any, for which it may have legal responsibility were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged, distributed, marketed, and/or sold in accordance with contract specifications imposed by its co-defendants, by the U.S. government, by plaintiff's employers and by third parties yet to be identified. NINTH AFFIRMATIVE DEFENSE AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the complaint plaintiff was employed and was entitled to and did receive workers’ compensation benefits from said employer. This defendant is informed and believes, and on the basis of said information and belief alleges that, if the conditions as alleged in the plaintiff's complaint ate found to exist, the plaintiffs employer was negligent and careless in and about the matters referred to in said complaint and that said negligence on the part of the employer proximately caused or contributed to the injuries and damages, if any, complained of by the plaintiff, and further, that the plaintiffs employer assumed the risk of injury to the plaintiff, if any there was, in that at the time and place of the incident such conditions, if any, were open and apparent and were fully known to the plaintiff's employer; and that by reason thereof, this defendant is entitled to set off any compensation benefits received or to be received by the plaintiff against any judgment which maybe rendered in favor of the plaintiff herein. TENTH AFFIRMATIVE DEFENSE AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of action therein are barred by the statutes of limitation and repose of California and any other relevant state, including but not limited to the Hmitations set forth under sections 340.2 and 361 of the Code of Civil Procedure of the State of California. fie -4- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS101 West Broadway Gordon & Rees LLP Suite 2000 San Diego, CA 92101 ELEVENTH AFFIRMATIVE DEFENSE AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in bringing this action against defendant and that such delay substantially prejudiced this answering defendant. Therefore, this action is barred by the doctrine of laches. TWELFTH AFFIRMATIVE DEFENSE AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the complaint and the causes of action therein fail to state facts sufficient to constitute a cause of action against this answering defendant pursuant to sections 3600, et seq., of the California Labor Code. THIRTEENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiffs employer was contributorily negligent and careless in and about the matters alleged in the complaint, and that such negligence and carelessness was a proximate cause of any injuries and damages suffered by plaintiff, if any there were. FOURTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and knowingly entered into and engaged in the operations, acts and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts and conduct alleged in said complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts and conduct at the time and place mentioned im the complaint. FIFTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the 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. -§- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSGordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92101 SIXTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant is informed and believes and therefore alleges that plaintiff is unable to identify the actual manufacturer or manufacturers of the asbestos products which allegedly caused the injury which forms the basis of the complaint herein, and | that said manufacturers were entities other than this defendant. Therefore, this defendant may not be held liable for the injury of the plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that plaintiff and plaintiffs employer were and are sophisticated users and knew independently or reasonably should have known of any danger or hazard associated with the use of a product contaming asbestos and of] exposure to high levels of dust of any sort. EIGUTEENTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint the products alleged to have caused plaintiff's injuries were designed, manufactured, sold, distributed, labeled and advertised in compliance with the then existing state of the art in the industry to which this defendant belonged and furthermore, that the benefits of any such product design outweighed any risk of danger in the design and that any such product met the safety expectations of plaintiff and the general public. NINETEENTH AFFIRMATIVE DEFENSE AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or otherwise compromised his claims herein, and accordingly, said claims are barred by operation of law; alternatively, plaintiff has accepted compensation as partial settlement of those claims for which this defendant is entitled to a set-off. Ly -6- ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSay - ae = = oe Eom ead as x BEES Bgeis aise g2%s s= & oT a wv TWENTIETH AFFIRMATIVE DEFENSE AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice (actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein. TWENTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to make reasonable efforts to mitigate injuries and damages, if any. TWENTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this defendant, by notification or otherwise, of any breach of express and/or implied warranties; consequently, his claims of breach of express and/or implied warranties against this defendant are barred. TWENTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused by the conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and successors in interest, its parent company or companies, its affiliates, subsidiaries, or related companies and enterprises. TWENTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that to the extent the amount of punitive damages sought is unconstilutionally excessive under the United States Constitution, it violates the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIII, and the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1. iff ~7- ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSGordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92104 TWENTY-FIFTH AFFIRMATIVE DEFENSE AS FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID COMPLAINT, this answering defendant alleges that the plaintiff's claim for punitive damages impermissibly seeks a multiple award of punitive damages as against this defendant in violation of the following clauses: the Contracts Clause of Article L, section 10 of the United States Constitution; the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United States Constitution and its counterpart under the California Constitution; the Equal Protection of the laws and Due Process provision of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 7 and 17, Article IV, section 16 of the California Constitution. TWENTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that punitive damages are bared by the Constitutions of the United States and California by virtue of their violation of one or more of the following clauses: the Contracts Clause of Article I, section 10 of the United States Constitution, the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; the Due Process Clause of the Fourteenth Amendment of the United States Constitution and its counterpart under the California Constitution; the Equal Protection of the laws and due process provision of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, section 7 of the California Constitution; and the Equal Protection of| the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, section 7 and 17, and Article [V, section 16 of the California Constitution. fi} -8- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSuite 2000 Gordon & Rees LLP 101 West Broadway San Diego, CA 92101 Oo SC AD 10 Vt TWENTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the subject premises was net used in the manner in which it was intended to be used, and as a proximate result of such abuse and misuse, the plaintiff sustained the injuries and damages complained of, if any there were. TWENTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff has failed to join a party or the parties necessary for a just adjudication of this matter and has further omitted to state any reasons for such failure. TWENTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of commencement of suit. THIRTIETH AFFIRMATIVE DEFENSE AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff failed to exercise ordinary care for his own safety and well-being, and that failure to exercise ordinary care proximately and directly caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently, this defendant is entitled fo the full pretection afforded by law. THIRTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's injuries or illness, if any, were due to the acts or omissions of a person or persons over whom this defendant had neither control nor the right of control. THIRTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that while specifically and vigorously denying the -9- ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSGordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92101 allegations of the plaintiff concerning liability, injuries and damages, to the extent that plaintiff may be able to prove those allegations, this defendant states that they were the result of intervening acts of superseding negligence on the part of the person or persons over whom this defendant had neither control nor the right of control. THIRTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that at all times and places mentioned in the complaint, plaintiff and/or other persons used this answering defendant's products, if indeed any were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a purpose for which the products were not intended, manufactured or designed. Plaintiff's injuries and damages, if any, were therefore directly and proximately caused by his misuse and abuse of such products. THIRTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's product or products, which exposure is vigorously denied, was so minimal as to be insufficient to establish a reasonable degree of probability that the product or products caused his claimed injuries and illness. THIRTY-FUFTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE. this answering defendant alleges that at the time of this filing, there was no good ground to support the complaint as to this defendant. There is now no good ground to support the complaint as to this defendant. THIRTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SLXTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff has waived any and ail claims sought i in this action and is estopped both to assert and to recover upon such claims. fie -10- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSGordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92101 ho i 12 ay nA Ww THIRTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has been abolished in a case such as this, and should plaintiff prevail against this defendant, this defendant's liability is several and is limited to its own actionable segment of fault, which fault is vigorously denied. THIRTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to state a claim upon which relief can be granted, or, if relief be granted, this defendant's Constitutional right to substantive and procedural due process of law would be contravened. THIRTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of actions asserted by the plaintiff] fail to state a claim upon which relief can be granted, for if relief be granted, such relief would constitute a taking of this defendant's property for a public use without just compensation, a violation of this defendant's Constitutional rights. FORTIETH AFFIRMATIVE DEFENSE AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to state a claim upon which relief can be granted because such relief would constitute a denial by this court of defendant's Constitutional right to equal protection under the law. FORTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff against this entity is improper as plaintiff meorrectly alleges that this answering defendant is responsible, in whole or in part, for the acts of one or more alternative entities. This answering defendant denies those claims. -ii- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOSSuite 2000 101 West Broadway San Diego, CA 92101 Gordon & Rees LLP FORTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's claim of successor liability and association with other entities is not factually or legally supported, and, as such, plaintiff has no claim against answering defendant as asserted. FORTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that it is not responsible for the product line or items which plaintiff claims that it manufactured, distributed or sold. Rather, this answering defendant asserts that another entity manufactured, distributed and sold this product line and is legally responsible therefor. FORTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that to the extent any claim for relief in the complaint, or amended complaint, seeks to recover damages against this defendant for alleged acts or omissions of predecessors or successors-in-interest to this defendant of any kind or description, said defendant asserts that it is not legally responsible and cannot legally be held liable for any such acts or omissions. This defendant further asserts that it cannot be held liable for punitive damages and/or exemplary damages which are or may be attributable to the conduct of any predecessor or successor-in-interest. Further, this defendant asserts that the conduct of any predecessor or successor-in-interest cannot, as a matier of law, provide a legal basis for liability or the imposition of damages against this defendant. FORTY-FIFTH AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that the product(s) or equipment which may have been manufactured or distributed by this answering defendant were manufactured and/or distributed in accordance with specifications and requirements supplied to this defendant by individuals or entities including, but not limited to, the Umited States of America. The alleged -12- ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOShw Gordon & Rees LLP 101 West Broadway Suite 2000 San Diego, CA 92101 ZROAMISY defect, if any, in said products was therefore caused by the mandatory specifications and requirements, and the alleged defect was neither known to nor discoverable by this defendant with the exercise of reasonable care. FORTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that plaintiff's recovery against this answering defendant is barred, diminished or reduced in that the product(s) or equipment, if any, utilized by plaintiff was altered or changed from the original condition of said product(s) or equipment at the time it left the possession and control of this defendant. FORTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND DEFENSE, this answering defendant alleges that California is not proper forum in which to litigate this matter pursuant to California Code of Civil Procedure section 410.30 and applicable case law. WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions, that this answering defendant be dismissed with costs of suit incurred herein, and for such other and further relief as this court deems just and proper. Dated: August ”_, 2008 GORDON & REES LLP ff 1 Ads bhi. By: Roser M. hast Daniel D. Bodel} Matthew A. Mason Attorneys for Defendant HENNESSY INDUSTRIES, INC. ~43- ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS| SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO COURT USE ONLY ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.: ROGER M. MANSUKHANI (SBN; 164463) PHONE: (619) 696-6700 DANIEL D. BODELL (SBN: 195250} FAX: (619) 696-7124 MATTHEW A, MASON (SBN: 228056) GORDON & REES LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 ICE. Robert L. Dondero SHORT CASE TITLE . RUFUS ALEXANDER v. ASBESTOS DEFENDANTS DEPT: 206 ATTORNEYS FoR Defendant HENNESSY INDUSTRIES, INC. — CASE NUMBER: CGC-08-274719 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is; 101 West Broadway, Suite 1600, San Diego, CA 92101. On August 11, 2008, I served the following document(s): Answer to Complaint for Personal Injury - Asbestos {X) BY ELECTRONIC SERVICE VIA LEXIS NEXIS FILE & SERVE. By sending electronically a true and correct copy thereof to Lexis Nexis File & Serve (www.lexisnexis.com/fileandserye) for service on all counsel of record by electronic service pursuant to the Order Mandating Electronic Filing and Service of Asbestos Pleadings and pursuant to CCP § 1010.6 and CRC 2060(c). The transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 11, 2008, FRCAMMDS2746:58501 780 4 1 PROOF OF SERVICE