Answer: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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LAW OFFICES OF

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PRINDLE, DECKER & AMARO, LLP
KENNETH B. PRINDLE, ESQ. (Bar No. 82691)

THOMAS A. STEIG, ESQ. (Bar No. 119341) ELECTRONICALLY
369 Pine Street, Suite 800

San Francisco CA 94104 s F ILED .
Tel. No.: (415) 788-8354 County of San Freneiecon
Fax No.: (415) 788-3625 Seo
Attomeys for Defendant, APR 10 2008
McMASTER-CARR SUPPLY COMPANY GORDON PARK-LI, Clerk
MMSF-0034 BY: ANNIE PASCUAL

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)

RODRICK BRECKLER and JOANN
BRECKLER,

CASE NO. CGC-08-274566

DEFENDANT McMASTER-CARR
SUPPLY COMPANY’S ANSWER TO
PLAINTIFF RODRICK BRECKLER’S
COMPLAINT FOR DAMAGES AND

Plaintiffs,

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PERSONAL INJURIES
ASBESTOS DEFENDANTS (BYP),
Complaint Filed =: March 12, 2008
Defendants. Trial Date : None

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COMES NOW Defendant, MCMASTER-CARR SUPPLY COMPANY (hereinafter referred
to as “this answering defendant"), for itself alone, and in answer to the unverified Complaint of
plaintiffs herein, as amended, now or in the future. or otherwise, admits. denies, and alleges as
follows:

1. Pursuant to the provisions of California Code of Civil Procedure § 431.30, this
answering defendant denies each, every and all of the allegations of the unverified complaint, and
each and every cause of action contained therein, and the whole thereof, and denies that plaintifis
has/have sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, of at
all.

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FIRST AFFIRMATIVE DEFENSE

2. The Complaint and each and every cause of action alleged therein fails to state facts
sufficient to constitute a cause of action against this answering defendant, and fails to state a claim
upon which relief may be granted.

SECOND AFFIRMATIVE DEFENSE

3. The Complaint and every cause of action alleged therein is/are barred by California
Code of Civil Procedure §§ 335, 338(1), 338(4), 339(1), 340(1}, 340(3}, 340.2, 343, 353, by
Commercial Code § 2725, and by all other applicable statute of limitations provisions, and plaintiffs
is/are thereby precluded from recovering the damages and other relief sought in the Complaint.

THIRD AFFIRMATIVE DEFENSE

4, The applicable laws, rules, statutes or regulations, including but not limited to, Code
of Civil Procedure $§ 340(3) and 340.2, and sister state statutes of limitations and statutes of repose
borrowed by Code of Civil Procedure § 361. requiring the institution of suit within a certain period
of time following its accrual, were not complied with, and, therefore, plaintiffs’ claims are barred as

a matter of law and equity.

FOURTH AFFIRMATIVE DEFENSE
5. Plaintiffs unreasonably delayed in bringing this action, without good cause, and
has/have thereby prejudiced the rights of this answering defendant. The Complaint and all claims

alleged therein are therefore barred by the doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE

6. Plaintiffs have waived any and all claims which he seeks to assert in this action,

and/or are estopped by their conduct from asserting or recovering on such claims.

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DEFENDANT McMASTER-CARR SUPPLY COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT

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SIXTH AFFIRMATIVE DEFENSE

7. Prior to the filing of this action, plaintiffs fully, completely and unequivocally settled

and compromised their claims for relief against this answering defendant.

SEVENTH AFFIRMATIVE DEFENSE

8. At all times and places mentioned in the Complaint, as amended, now or in the firture,
plaintiffs were negligent and careless and faiied to exercise that degree of care and caution for their
own safety which a reasonably prudent person would have used under the same or similar
circumstances, in that, among other things, plaintiffs so negligently and carelessly stationed,
conducted and maintained themselves, failed to utilize safety devices and other equipment or
facilities supplied to them and/or existing as part of their environment. and failed to observe open
and obvious conditions, so as to directly and proximately cause and contribute to plaintiffs’ injuries

and damages, if any. Plaintiffs are therefore precluded from ebtaining any recovery against this

answering defendant. Alternatively, any negligence or other legal fault attributable to plaintiffs
thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this

answering defendant, which this answering defendant expressly denies.

EIGHTH AFFIRMATIVE DEFENSE

9 This answering defendant alleges that no act, omission, conduct or product
attributable to it caused or contributed to any injuries or damages sustained by plaintiffs, if any, and
that if plaintiffs’ injuries and damages, if any, were not solely caused by plaintiffs’ own acts,
omissions and other conduct, then said injuries and damages were proximately caused and
contributed ta by the negligence and/or other tortious acts, omissions, conduct and products of
persons or entities other than this answering defendant, and that said negligence and/or other legal
fault was an intervening and superseding cause of plaintiffs’ injuries and damages, ifany. Any
damages recoverable by plaintiffs must therefore be diminished in proportion to the amount of fault

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attributable to these other persons and entities, and there should be an apportionment of the harm

and damage claimed by plaintiffs, if any.

NINTH AFFIRMATIVE DEFENSE

10. That at all times and places referred to in the Complaint, as amended. now or in the
future, plaintiffs were, or in the exercise of reasonable care should have been, aware of all
circumstances and conditions then and there existing and prevailing, but nonetheless knowingly.
voluntarily, and in full appreciation of the potential consequences thereof, exposed themselves to
whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
freely and voluntarily assuming any and all risk(s) incident thereto, and thereby barring plaintiffs

from recovery herein.

TENTH AFFIRMATIVE DEFENSE

11, Atall times and places relevant to this action, plaintiffs failed to make reasonable

efforts to mitigate their injuries, loss and/or damages, if any.

ELEVENTH AFFIRMATIVE DEFENSE

12. Atall times material to this action, plaintiffs failed to use the products alleged in the
complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated
and expected of an ordinary user. Such misuse of the products described in the Complaint by
plaintiffs was the sole, proximate and legal cause of plaintiffs’ injuries and damages, if any, thereby

barring plaintiffs from recovery herein.

TWELFTH AFFIRMATIVE DEFENSE

13. Atall times material to this action, the products described in the Complaint which
allegedly injured plaintiffs were, without this answering defendant’s knowledge, approval or consent,
and contrary to instructions and/or the custom and practice in the mdustry, altered, re-designed,
modified, or subjected to other treatment which substantially changed their character, such that they

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were not being used, fimctioning and/or performing in a manner intended by their manufacturer,
and/or were not in substantially the same or similar condition as when they left the manufacturer's
possession. If there. was a defect in said products, which supposition is specifically denied by this
answering defendant, such defect resulted solely from such alteration, re-design. modification,
treatment or other change therein, and not from any act or omission by this answering defendant,

thereby barring plaintiffs from recovery herein as against this answering defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Plaintiffs are barred from recovery herein in that any and ail products allegedly
supplied or distributed by this answering defendant were manufactured and/or produced in
conformity with specifications established and provided by the United States Government pursuant
to its War Powers as set forth in the United States Constitution, and that any defect in said products
was caused by deficiencies in said specifications, and not by any action or conduct on the part of this

answering defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

15. Plaintiffs are barred from recovery herein in that all products allegedly manufactured
or distributed by this answering defendant were in conformity with the existing state of the medical,
scientific, and industrial knowledge, art, and practices, and, ag a result, said products were not

defective in any manner.

FIFTEENTH AFFIRMATIVE DEFENSE

16. At all times and places mentioned in the complaint, as amended. now or an the future,
plaintiffs were not in privity of contract with this answering defendant, and said lack of privity bars
plaintiffs’ recovery herein upon any theory of warranty.
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SIXTEENTH AFFIRMATIVE DEFENSE
17. Plaintiffs failed to give this answering defendant timely and reasonable notice of any

alleged breach of contract or warranty, thereby barring plaintiffs from recovery herein.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. At all times and places relevant to this action, plaintiffs waived whatever right they
might otherwise have had to claim a breach of warranty, in that plaintiffs failed to notify this
answering defendant of any alleged breach of warranty, express or implied, and if any alleged defects
existed in any product(s) manufactured or distributed by this answering defendants, plaintiffs
discovered or should have discovered said defect or non-conformity, if any existed, and failure to do
so within a reasonable period of time prejudices this answering defendant from being able to fully
investigate and defend the allegations made against it in the Complaint. as amended now or in the

future,

EIGHTEENTH AFFIRMATIVE DEFENSE

19. Plaintiffs’ breach of warranty claims ave barred by written disclaimers and/or

exclusions contained on or in the labels or packaging of the products at issue in this action.

NINETEENTH AFFIRMATIVE DEFENSE

20. The Complaint, as amended now or in the future, and each and every cause of action
contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as
these terms are used in Civil Code § 3294, and therefore fails to a cause of action for punitive
damages.

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TWENTIETH AFFIRMATIVE DEFENSE

21. The imposition of punitive/exemplary damages against this corporate defendant for
acts of a former and/or predecessor corporate entity would be a violation of due process of law, and

against public policy, under the various laws of the State of California and the United States.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. This answering defendant alleges that California Civil Code § 3294 violates the Due
Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void
because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates
the Eighth Amendment to the United States Constitution. Accordingly, plaintiffs are barred from

any recovery thereunder.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. The liability of this answering defendant, if any, shall be apportioned in accordance
with the provisions of Civil Code §§ 1431, ef seq., commonly known as the Pair Responsibility Act

of 1986.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. This answering defendant alleges on information and belief that at all times and
places relevant to this action, plaintiff was an employee of an employer or employers whose names
are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now
or in the future, occurred while plaintiff was acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that plaintiffs employer or
employers provided plaintiff with certain benefits in compliance with the terms and provisions of the
Workers' Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefits thal may have been provided is unknown, but when said benefits are

determined, leave to amend this answer and to set forth the details of said benefits will be sought. It

is further alleged that any and all injuries or damages complained of by plaintiff were solely and
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DEFENDANT McMASTER-CARR SUPPLY COMPANY'S ANSWER TO PLAINTIFF’S COMPLAINT

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proximately caused by. or resulted from, the negligence and carelessness of plaintiff's employer, his
co-workers, and/or his employer's agents, servants or employees. Therefore, this answering
defendant is entitled to an offset of any such benefits received or to be received by plaintiff against
any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Witt v.

Jackson (1961) 57 Cal.2d 57.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25, Plaintiffs ave barred from recovery herein if at any time, past or present, plaintiff was
or is an employee of this answering defendant, including any of this answering defendant’s divisions
or subsidiaries, thereby creating conditions of compensation. The right to recover Workers”

Compensation benefits is plaintiffs’ sole and exclusive remedy as against this answering deiondant,

pursuant to the provisions of California Labor Code §§ 3306, et seq., and/or $§ 3600, et seq. This
answering defendant is entitled to a judicial determination of any such employer-employee
relationship establishing such exclusive remedy and bar to recovery prioy to any hearing or trial on

the merits in this matter.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. Even if plaintiff was exposed to any asbestos-containing products manufactured or
distributed by this answering defendant, which supposition is expressly denied, plaintiff's exposure
to said products would have been so minimal as to be insufficient to constitute a “substantial

contributing factor” in the causation of plaintifis’ alleged injuries or disease, if any.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. This answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly
distributed, sold, supplied or delivered to plaintiff's employer(s), because said emmployer(s) had as
great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this

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answering defendant, and, unlike this answering defendant, said employer(s) were im a position to

warn persons exposed to such products of any such risks, dangers or hazards.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. This answering defendant alleges that at all times relevant to the matters alleged in the
complaint, as amended now or in the future, all of plaintiff's employers, other than this answering
defendant were sophisticated and knowledgeable users of asbestos products and said employers’
negligence in providing said product(s) to their employees in a negligent, careless and reckless

manner was a superseding cause of plaintiffs’ injuries, if any.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. To the extent the Complaint, or any cause of action alleged therein, is based upon an
allegation of strict products liability as against this answering defendant, said cause of action cannot
be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the
Restatement (Second) of Torts, and consequently any claim of strict ability against this answering
defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991)

226 Cal App.3d 1681.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. This answering defendant denies that it was 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 any entity owning property, maintaining
premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing. installing, contracting
for installation, repairing, marketing, warranting. re-branding, manufacturing for others, packaging
and advertising any asbestos/silica products. This answering defendant is therefore not liable for any

acts, whether they be active or passive, or omissions of any entities to which this answering
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DEFENDANT MeMASTER-CARR SUPPLY COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT

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4 THIRTIETH AFFIRMATIVE DEFENSE

5 31. This answering defendant did not and does not have a substantial percentage of the

6 || market for any asbestos-containing products which allegedly caused the injuries and damages claimed
7 || by plaintiffs. Furthermore, the asbestos-containing products which allegedly caused the injuries and
§ || damages claimed by plaintiffs are not “fungible” in nature. As such, this answering defendant may not

9 || be held liable to plaintiffs based upon any “market-share” or “enterprise” theories of liability.

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11 THIRTY-FIRST AFFIRMATIVE DEFENSE
2 32. Pursuant to Califomia Code of Civil Procedure § 430.10(c), there is another action

3 || pending between ihe same parties on the same causes of action.

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15 THIRTY-SECOND AFFIRMATIVE DEFENSE
6 33. The Complaint, as amended now or in the future, and any and ali claims and causes of

17 |} action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. $§ 20701.

8 || e¢ seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, ef seg.. and all other applicable federal

9 4 statutes, laws or regulations.

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21 THIRTY-THIRD AFFIRMATIVE DEFENSE
22 34. The Compiaint, as amended now or in the future, and any and all claims and causes of

23 |] action alleged therein, is/are barred by the rule against splitting a cause of action.

24
25 THIRTY-FOURTH AFFIRMATIVE DEFENSE
26 35, The Complaint, as amended now or in the future, and any and all claims and causes of

27 || action alleged therein, is/are barred by plaintiffs’ failure to timely join one or more parties thal are

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indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by

Code of Civil Procedure § 389.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

36. The Complaint, as amended now or in the future, and any and all claims and causes of

action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or collateral estoppel.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

37. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff and/or

defendant.

RESERVATION OF RIGHTS

This answering defendant hereby reserves the right, upon completion of its investigation and

discovery, to amend this answer to include such additional defenses as may be appropriate.

WHEREFORE, defendant McCMASTER-CARR SUPPLY COMPANY prays as follows:

1. That plaintiffs take nothing by reason of the operative Complaint on file herein;

2. That defendant McCMASTER-CARR SUPPLY COMPANY be awarded its costs and
expeuses of suit incurred herein;

3. That if defendant MCoMASTER-CARR SUPPLY COMPANY is found liable, that the
degree of responsibility and liability for the resulting damages be determined and apportioned in
accordance with Califorma Civil Code §§ 1431, et seq.; and
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1 4. For such other and further relief as the Court may deem just and proper.

KENNETH B. PRINDLE
Attorneys for Defendant,
McMASTER-CARR SUPPLY COMPANY

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DEFENDANT MeMASTER-CARR SUPPLY COMPANY'S ANSWER TO PLAINTIFE’S COMPLAINT

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Rodrick Breckler v. Asbestos Defendants (B SP)
Case No.: 274566

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:

1, the undersigned, declare: that | am, and was at the time of service of the documents herein
referred to, over the age of eighteen (18) years and am not a party to the within action; and Tam
employed in the County of Los Angeles, California. My business address is 310 Golden Shore, 4°
Floor, Long Beach, California 90802.

On April 10, 2008, I electronically served the following document(s) via LexisNexis File &
Serve described as:

DEFENDANT McMASTER-CARR SUPPLY COMPANY’S ANSWER TO PLAINTIFF
RODRICK BRECKLER’S COMPLAINT FOR DAMAGES AND PERSONAL INJURIES
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

website.

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

Executed on April {9 , 2008, at Long Beach, California.

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SARAH BOESCHEN