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Gordon & Rees LLP
275 Battery Sireet, Suite 2000
San Francisco, CA 9411
P. GERHARDT ZACHER (SBN; 043184)
THOMAS A. PACKER (SBN: 104767}
LINDA M, MORONEY (SBN: 172668)
GORDON & REES LLP ELECTRONICALLY
275 Battery Street, Suite 2000 FILED
San Francisco, CA 94111 Superior Court of California,
Telephone: (415) 986-5900 County of San Francisco
Facsimile: (415) 262-3789 APR 24 2009
Email: gzacher@gordonrees.com GORDON PARK-LI, Clerk
tpacker@gordonrees.com BY: JUDITH NUNEZ”
Imoroney@gordonrees.com Deputy Clerk
Attorneys for Defendant
3M COMPANY
SUPERIOR COURT OF CALIFORNIA —
COUNTY OF SAN FRANCISCO
ANTHONY CONTE, CASE NO. CGC-09-275046
Plaintiff, DEFENDANT 3M COMPANY’S
ANSWER TO PLAINTIFF'S
vs. COMPLAINT FOR PERSONAL
INJURY — ASBESTOS
ASBESTOS DEFENDANTS (BP), et al,
Action Filed: January 30, 2009
Trial Date: Not Set
Ne ee! Ne Sa ee at Nt Sa Ne
Defendants.
COMES NOW 3M COMPANY, and in response to Plaintiff's complaint, and each and
every cause of action allegedly set forth therein, answers, alleges, and denics as follows:
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3M denies cach 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 3M.
Th.
Further answering the complaint, and each and every cause of action allegedly set forth
therein, 3M denies that it was legally responsible in any respect whatsoever for the
circumstances and happenings, as alleged therein, or at all, and denies that it was negligent
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“DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOSGordon & Rees LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
to
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and/or catcless in any respect whatsoever, as alleged therein, or at all, and denies that Plaintiff
has been damaged in the manner set forth in the complaint and each and every cause of action
allegedly set forth therein.
FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff is barred from recovery because 3M owed no duty to
Plaintiff.
SECOND AFFIRMATIVE DEFENSE
AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's complaint and causes of action therein fail to state
facts sufficient to constitute a cause of action against 3M.
THIRD AFFIRMATIVE DEFENSE
AS AND FOR A TITRD, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFMED COMPLAINT, Plaintiff is barred from recovery against 3M because there is no
causal connection between any conduct of 3M and any alleged loss or damage that Plaintiff
contends he sustained.
FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's conduct and activity has been such that his claims
against 3M are barred by estoppel.
FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's claims are a nullity for failure of commencement of
suit.
SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff failed to join a party or the parlies necessary for a just
adjudication of this matter and has further omitted to state any reasons for such failure.
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- DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS275 Battery Street, Suite 2000
Gordon & Rees 1.1.P
San Francisco, CA 94111
SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's 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 limitations set forth in sections 340.2(a)(1), 340.2(a}(2), 340.2(c)(1),
340,2(c)(2) and 361 of the California Code of Civil Procedure.
EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff unreasonably delayed in bringing this action against 3M
and such delay substantially prejudiced 3M. ‘Therefore, this action is barred by the doctrine of
laches.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff failed
to make reasonable efforts to mitigate injuries and damages, if any there were.
TENTH AFFIRMATIVE DEFENSE
AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, 3M is informed and believes that Plaintiff is unable to identify
many of the actual manufacturers of the products that allegedly caused the injury that forms the
basis of the complaint and that said manufacturers were entities other than 3M. Therefore, 3M
may not be held liable for Plaintiff's injuries, if any there were.
ELEVENTH AFFIRMATIVE DEFENSE
AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff acknowledged, ratified, consented to, and acquiesced in
the alleged acts or omissions, if any there were, of 3M, thus barring Plaintiff trom any relief as
prayed for in the complaint.
TWELFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
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~ DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS275 Battery Street, Suite 2000
San Francisco, CA 94111
a
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UNVERIFIED COMPLAINT, Plaintiff released, settled, entered into an accord and satisfaction,
or otherwise compromised his claims, and accordingly, his claims are barred by operation of law:
alternatively, Plaintiff accepted compensation as partial settlement of his claims for which 3M is
entitled to a set-off.
THIRTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's claims are preempted in whole or in part by federal
and/or state statutes and/or regulations.
FOURTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, 3M is informed and believes that any injuries, damages and/or
loss Plaintiff may have sustained were a direct, proximate and sole result of Plaintiff's physical
condition on, prior to, and/or after the events Plaintiff set forth in the complaint.
FIFTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, PlaintilT himself was careless and negligent in and about the
matters referred to in the complaint and such negligence and carclessness on the part of Plaintiff
proximately caused and contributed to the damages complained of, if any there were.
SIXTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff knew or, in the exercise of ordinary care, should have
known of the risks and hazards involved in the undertakings in which he was engaged, as set
forth in the complaint, but nevertheless and with full knowledge of these things, did fully and
voluntarily consent to assume the risks and hazards involved in the undertakings.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff
and/or other persons without 3M's knowledge or approval redesigned, modified, altered, and
ae — a - -4- _ —. - _.
DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS275 Battery Street, Suite 2000
Gordon & Rees LLP
San Francisco, CA 94111
used 3M's products contrary io instructions and contrary to the custom and practice of the
industry. This redesign, modification, alteration, and use so substantially changed the products’
character that if there was a defect in the products -- which is specifically denied -- such defect
resulted solely from the redesign, modification, alteration, or other such treatment or change and
not from any act or omission by 3M. 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 Plaintiff's
alleged injuries and damages.
EIGHTEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff
and/or other persons used 3M's products, if any were used, in an unreasonable manner, not
reasonably foresceable to 3M, and for a purpose for which the products were not intended,
manufactured, or designed. Plaintiff's claimed injuries and damages were therefore directly and
proximately caused by his misuse and abuse of such products.
NINETEENTH AFFIRMATIVE DEFENSE
AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's employers were contributorily negligent and careless
in and about the matters alleged in the complaint, and such negligence and carelessness were a
proximate cause of all injuries and damages Plaintiff allegedly suffered.
TWENTIETH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's employers voluntarily and knowingly entered into and
enpaged in the operations, acts, and conduct alleged in the complaint, and voluntarily and
knowingly assumed all of the risks incident to said operations, acts, and conduct alleged in the
complaint, and voluntarily and knowingly assumed all of the risks incident to said operations,
acts, and conduct at the times and places mentioned in the complaint.
TWENTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
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DEFFNDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS1 | UNVERIFIED COMPLAINT, Plaintiff's employers were knowledgeable users of any products
2 |i allegedly manufactured and supplied by 3M and any duty to warn, and/or advise Plaintiff
we
regarding the use of 3M’s preducts, if any, and which duty 3M specifically denies, was
4 || superseded and/or discharged by the duty of Plaintiffs employers to do so.
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TWENTY-SECOND AFFIRMATIVE DEFENSE
6 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO
7 ||SAID UNVERIFIED COMPLAINT, 3M is informed and believes that at the time of Plaintiff's
8 || injuries, Plaintiff was employed and was entitled to and received workers’ compensation benefits
9 || from his employers. 3M further states on information and belief that Plaintiff's employers were
0 || negligent and careless regarding the matters referred to in the complaint and his employers’
1 | negligence proximately caused or contributed to his alleged injuries and damages. Plaintiff's
2 || employers and/or the premises owners of the locations where he worked violated provisions of
13 || the Occupational Safety and Health Act of 1970, and the regulations developed and adopted
4 || pursuant thereto, and those violations were the sole proximate cause of Plaintiff s alleged
injuries. Additionally, any damages Plaintiff alleges he sustained were the direct and proximate
16 || result of the intentional conduct of Plaintiff's employers and/or labor union(s) and/or owners of
275 Battery Street, Suite 2000
San Francisco, CA 94111
a
7 || the premises and/or other persons and/or entities, in failing to properly cducate, train and
8 || supervise Plaintiff, and in failing to provide him with a reasonably safe place to work, for which
9 || 3M is neither responsible nor liable. Further, Plaintiffs employers assumed the risk of injury to
20 || Plaintiff in that at the times and places of the subject incidents, the conditions were open and
21 || apparent, and were fully known to Plaintiff's employers. 3M is thus entitled to a set-off of any
22 || workers’ compensation benefits that Plaintiff received or will receive, against any judgment that
23 || may be rendered in Plaintiff's favor.
24 TWENTY-THIRD AFFIRMATIVE DEFENSE
25 AS AND FOR A TWENTY-TIURD, SEPARATE AND DISTINCT DEFENSE TO
26 || SAID UNVERIFIED COMPLAINT, 3M is not liable for any injuries alleged in the complaint
27 || because the products allegedly manufactured and supplied by 3M were done so in accord with all
28 |, government regulations and specifications and 3M’s conduct falls within the purview and
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DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF°S COMPLAINT FOR PERSONAL INJURY -
ASBESTOSwe
an
275 Battery Street, Suite 2000
Gordon & Rees L.1.P
San Francisco, CA 94111
protection of the government contractor defense.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, 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 parties, and not of 3M.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, in the cvent parties were not reasonably and adequately
warned of potential dangers concerning misuse of the products at issue, the duty to provide the
warnings was that of some other person and/or entity, for which 3M is neither responsible nor
liable.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, Plaintiff’s injuries or illnesses, if any there were, were due
to the acts or omissions of a person or persons over whom 3M had neither control nor the right of |
control.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have
been involved in the subject incidents, it will also be found that 3M sold the product to some
other person and/or entity with all appropriate information and documents about the product, and
that 3M reasonably relied upon this “sophisticated user” to communicate these materials to the
ultimate users of the product, including Plaintiff.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, 3M alleges that Plaintiff and/or Plaintiffs employer(s)
were and are sophisticated user(s) and knew independently or should have known of any danger
or hazard associated with the use of asbestos, the use of a product containing asbestos, and
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DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS'y Street, Suite 2000
San Francisco. CA 94111
275 Bat
exposure to high levels of dust of any sort, 3M further alleges that it warned Plaintiff's
employer(s} of the danger or hazard, if any, associated with the use of its product and that
Plaintiff and/or Plaintiff's employer(s) failed to rely upon such warning, resulting in alleged
damages due to Plaintiff's and/or Plaintiffs employer's act or omission and failure to act as
sophisticated users.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, while specifically and vigorously denying Plaintiff's
allegations concerning liability, injuries, and damages, to the extent that PlainuilT may be able to
prove those allegations, 3M states that they were the result of intervening acts of superseding
negligence on the part of a person or persons over whom 3M had neither control nor the right of
control.
THIRTIETH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff is barred from recovering for breach of warranty because
Plaintiff was not in privity with 3M and, even if Plaintiff were in privity, 3M has disclaimed all
applicable warranties.
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A TIHRTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff is barred from recovery for alleged breaches of warranty
by section 2607 of the Catifornia Uniform Commercial Code.
THIRTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, Plaintiff has waived any and all claims sought in this action
and is estopped both to assert and to recover upon such claims.
THIRTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, any exposure of Plaintiff to and/or use of 3M's products, which
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DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS,275 Battery Street, Si
Gordon & Rees LLP
San Francisco, CA 94111
exposure and/or use is vigorously denied, was so minimal as to be insufficient to establish a
reasonable degree of probability that the products caused Plaintiffs claimed injuries and
illnesses.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, the regulations adopted by OSHA pursuant to the
Occupational Safety and Health Act allowed airborne asbestos and other dusts in Plainti!?'s
workplaces below certain limits and approved the use of certain 3M respiratory protection
equipment for protection from dust. To the extent these regulations conflict with the law of any
jurisdiction where any of Plaintiff's workplaces were located, any such laws are preempted by
the Occupational Safety and Health Act.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, at all times alleged in the complaint, the products Plaintiff alleges
caused his injuries were designed, manufactured, sold, distributed, labeled, and advertised in
compliance with the then existing state of the art in the industry to which 3M belonged and
lurther; the benefits of any such product design outweighed any risk of danger in the design; and
any such products met the safety expectations of Plaintiff and the general public.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been
involved in the subject incidents, it will also be found that the product was, at all relevant times,
safe for normal usage in the manner for which it was intended, the benefits of its design
outweighed any foreseeable risks, and the product was not defective.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have
been involved in the subject incidents, it will be found that all parties were provided reasonably
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DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOSSan Francisco, CA 94111
appropriate information concerning use of the product.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, should Plaintiff prevail against 3M, 3M's liability is several
and is limited to its own actionable segment of fault, which fault is vigorously denied.
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's claims of successor liability, and association with other
entities, are neither factually nor legally supported, and, as such, Plaintiff has no claim against
3M, as asserted. To the extent any claim for relief in the complaint seeks to recover damages
against 3M for alleged acts or omissions of predecessors or successors-in-interest ta 3M of any
kind or description, 3M is not legally responsible and cannot legally be held liable for any such
acts or omissions. Further, the conduct of any predecessor or successor-in-interest cannot, as a
matter of law, provide a legal basis for liability or the imposition of damages against 3M.
FORTIETH AFFIRMATIVE DEFENSE
AS AND FOR A FORTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's causes of action fail to state a claim upon which relief
can be granted, for if relief is granted, such relief would constitute a taking of 3M’s property for
a public use without just compensation, a violation of 3M’s Constitutional rights.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, Plaintiff's punitive damages claims impermissibly seek a multiple
award and/or are unconstitutionally excessive under 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 Duc 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 provisions of the Fifth and Fourteenth Amendments of the United
States Constitution and Article 1, section 7 of the California Constitution; and the Equal
a _ .. - -l o- - —
DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY -
ASBESTOSGordan & Rees LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Protection of the laws and 3M'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, and section 16 of the California
Constitution.
FORTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, 3M 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, 3M's Constitutional
right to substantive and procedural due process of law would be contravened.
FORTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, 3M alleges that the canses of action asserted by Plaintiff fail to
state a claim upon which relief can be granted because such relief would constitute a denial of
3M's Constitutional right to equal protection under the law.
FORTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO
SAID UNVERIFIED COMPLAINT, 3M alleges that it is not responsible for the product line or
items that Plaintiff claims that it manufactured, distributed, or sold. Rather, 3M asserts that
another entity or entities manufactured, distributed, and sold this product line and is legally
responsible therefor.
WHEREFORE, 3M prays that Plaintiff takes nothing by his actions, that 3M be
dismissed with costs of suit incurred herein, and for such other and further relief as this court
deems just and proper.
Dated: April B4f- 2009
GORDON & REES LLP
LINDA M. MORONEY
Attorneys for Defendant
3M COMPANY
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DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFI’S COMPLAINT FOR PERSONAL INJURY -
ASBESTOSGordon & Rees LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
ANTHONY CONTE V. ASBESTOS DEFENDANTS (B**P)
SAN FRANCISCO SUPERIOR COURT CASE NO. CGC-09-275046
1, Ocie M. Taylor, declare: that 1 am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and I am employed in
the County of San Francisco, California. My business address is Gordon & Rees LLP,
Embarcadero Center West, 275 Battery Street, 20th Floor, San Francisco, California 94111.
On the date executed below, | electronically served the document(s) via LexisNexis File
& Serve described as:
DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR
PERSONAL INJURY - ASBESTOS
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. | declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on April Z £2008 at San Francisco, California,
alte.
OCE M. Ge Mh
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DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS
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Gordon & Rees LLP 275 Battery Sireet, Suite 2000 San Francisco, CA 9411 P. GERHARDT ZACHER (SBN; 043184) THOMAS A. PACKER (SBN: 104767} LINDA M, MORONEY (SBN: 172668) GORDON & REES LLP ELECTRONICALLY 275 Battery Street, Suite 2000 FILED San Francisco, CA 94111 Superior Court of California, Telephone: (415) 986-5900 County of San Francisco Facsimile: (415) 262-3789 APR 24 2009 Email: gzacher@gordonrees.com GORDON PARK-LI, Clerk tpacker@gordonrees.com BY: JUDITH NUNEZ” Imoroney@gordonrees.com Deputy Clerk Attorneys for Defendant 3M COMPANY SUPERIOR COURT OF CALIFORNIA — COUNTY OF SAN FRANCISCO ANTHONY CONTE, CASE NO. CGC-09-275046 Plaintiff, DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF'S vs. COMPLAINT FOR PERSONAL INJURY — ASBESTOS ASBESTOS DEFENDANTS (BP), et al, Action Filed: January 30, 2009 Trial Date: Not Set Ne ee! Ne Sa ee at Nt Sa Ne Defendants. COMES NOW 3M COMPANY, and in response to Plaintiff's complaint, and each and every cause of action allegedly set forth therein, answers, alleges, and denics as follows: L 3M denies cach 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 3M. Th. Further answering the complaint, and each and every cause of action allegedly set forth therein, 3M denies that it was legally responsible in any respect whatsoever for the circumstances and happenings, as alleged therein, or at all, and denies that it was negligent -1- “DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOSGordon & Rees LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 to wa and/or catcless in any respect whatsoever, as alleged therein, or at all, and denies that Plaintiff has been damaged in the manner set forth in the complaint and each and every cause of action allegedly set forth therein. FIRST AFFIRMATIVE DEFENSE AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff is barred from recovery because 3M owed no duty to Plaintiff. SECOND AFFIRMATIVE DEFENSE AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's complaint and causes of action therein fail to state facts sufficient to constitute a cause of action against 3M. THIRD AFFIRMATIVE DEFENSE AS AND FOR A TITRD, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFMED COMPLAINT, Plaintiff is barred from recovery against 3M because there is no causal connection between any conduct of 3M and any alleged loss or damage that Plaintiff contends he sustained. FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's conduct and activity has been such that his claims against 3M are barred by estoppel. FIFTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's claims are a nullity for failure of commencement of suit. SIXTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff failed to join a party or the parlies necessary for a just adjudication of this matter and has further omitted to state any reasons for such failure. -2- - DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS275 Battery Street, Suite 2000 Gordon & Rees 1.1.P San Francisco, CA 94111 SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's 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 limitations set forth in sections 340.2(a)(1), 340.2(a}(2), 340.2(c)(1), 340,2(c)(2) and 361 of the California Code of Civil Procedure. EIGHTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff unreasonably delayed in bringing this action against 3M and such delay substantially prejudiced 3M. ‘Therefore, this action is barred by the doctrine of laches. NINTH AFFIRMATIVE DEFENSE AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff failed to make reasonable efforts to mitigate injuries and damages, if any there were. TENTH AFFIRMATIVE DEFENSE AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M is informed and believes that Plaintiff is unable to identify many of the actual manufacturers of the products that allegedly caused the injury that forms the basis of the complaint and that said manufacturers were entities other than 3M. Therefore, 3M may not be held liable for Plaintiff's injuries, if any there were. ELEVENTH AFFIRMATIVE DEFENSE AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or omissions, if any there were, of 3M, thus barring Plaintiff trom any relief as prayed for in the complaint. TWELFTH AFFIRMATIVE DEFENSE AS AND FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE TO SAID -3- _. ~ DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS275 Battery Street, Suite 2000 San Francisco, CA 94111 a 6 UNVERIFIED COMPLAINT, Plaintiff released, settled, entered into an accord and satisfaction, or otherwise compromised his claims, and accordingly, his claims are barred by operation of law: alternatively, Plaintiff accepted compensation as partial settlement of his claims for which 3M is entitled to a set-off. THIRTEENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's claims are preempted in whole or in part by federal and/or state statutes and/or regulations. FOURTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M is informed and believes that any injuries, damages and/or loss Plaintiff may have sustained were a direct, proximate and sole result of Plaintiff's physical condition on, prior to, and/or after the events Plaintiff set forth in the complaint. FIFTEENTH AFFIRMATIVE DEFENSE AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, PlaintilT himself was careless and negligent in and about the matters referred to in the complaint and such negligence and carclessness on the part of Plaintiff proximately caused and contributed to the damages complained of, if any there were. SIXTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff knew or, in the exercise of ordinary care, should have known of the risks and hazards involved in the undertakings in which he was engaged, as set forth in the complaint, but nevertheless and with full knowledge of these things, did fully and voluntarily consent to assume the risks and hazards involved in the undertakings. SEVENTEENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff and/or other persons without 3M's knowledge or approval redesigned, modified, altered, and ae — a - -4- _ —. - _. DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS275 Battery Street, Suite 2000 Gordon & Rees LLP San Francisco, CA 94111 used 3M's products contrary io instructions and contrary to the custom and practice of the industry. This redesign, modification, alteration, and use so substantially changed the products’ character that if there was a defect in the products -- which is specifically denied -- such defect resulted solely from the redesign, modification, alteration, or other such treatment or change and not from any act or omission by 3M. 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 Plaintiff's alleged injuries and damages. EIGHTEENTH AFFIRMATIVE DEFENSE AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, at all times and places mentioned in the complaint, Plaintiff and/or other persons used 3M's products, if any were used, in an unreasonable manner, not reasonably foresceable to 3M, and for a purpose for which the products were not intended, manufactured, or designed. Plaintiff's claimed injuries and damages were therefore directly and proximately caused by his misuse and abuse of such products. NINETEENTH AFFIRMATIVE DEFENSE AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's employers were contributorily negligent and careless in and about the matters alleged in the complaint, and such negligence and carelessness were a proximate cause of all injuries and damages Plaintiff allegedly suffered. TWENTIETH AFFIRMATIVE DEFENSE AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's employers voluntarily and knowingly entered into and enpaged in the operations, acts, and conduct alleged in the complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts, and conduct alleged in the complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts, and conduct at the times and places mentioned in the complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID -5- __ DEFFNDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 | UNVERIFIED COMPLAINT, Plaintiff's employers were knowledgeable users of any products 2 |i allegedly manufactured and supplied by 3M and any duty to warn, and/or advise Plaintiff we regarding the use of 3M’s preducts, if any, and which duty 3M specifically denies, was 4 || superseded and/or discharged by the duty of Plaintiffs employers to do so. wa TWENTY-SECOND AFFIRMATIVE DEFENSE 6 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO 7 ||SAID UNVERIFIED COMPLAINT, 3M is informed and believes that at the time of Plaintiff's 8 || injuries, Plaintiff was employed and was entitled to and received workers’ compensation benefits 9 || from his employers. 3M further states on information and belief that Plaintiff's employers were 0 || negligent and careless regarding the matters referred to in the complaint and his employers’ 1 | negligence proximately caused or contributed to his alleged injuries and damages. Plaintiff's 2 || employers and/or the premises owners of the locations where he worked violated provisions of 13 || the Occupational Safety and Health Act of 1970, and the regulations developed and adopted 4 || pursuant thereto, and those violations were the sole proximate cause of Plaintiff s alleged injuries. Additionally, any damages Plaintiff alleges he sustained were the direct and proximate 16 || result of the intentional conduct of Plaintiff's employers and/or labor union(s) and/or owners of 275 Battery Street, Suite 2000 San Francisco, CA 94111 a 7 || the premises and/or other persons and/or entities, in failing to properly cducate, train and 8 || supervise Plaintiff, and in failing to provide him with a reasonably safe place to work, for which 9 || 3M is neither responsible nor liable. Further, Plaintiffs employers assumed the risk of injury to 20 || Plaintiff in that at the times and places of the subject incidents, the conditions were open and 21 || apparent, and were fully known to Plaintiff's employers. 3M is thus entitled to a set-off of any 22 || workers’ compensation benefits that Plaintiff received or will receive, against any judgment that 23 || may be rendered in Plaintiff's favor. 24 TWENTY-THIRD AFFIRMATIVE DEFENSE 25 AS AND FOR A TWENTY-TIURD, SEPARATE AND DISTINCT DEFENSE TO 26 || SAID UNVERIFIED COMPLAINT, 3M is not liable for any injuries alleged in the complaint 27 || because the products allegedly manufactured and supplied by 3M were done so in accord with all 28 |, government regulations and specifications and 3M’s conduct falls within the purview and _ -. aa .. .. -6-_ _ s - - — _. —- DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF°S COMPLAINT FOR PERSONAL INJURY - ASBESTOSwe an 275 Battery Street, Suite 2000 Gordon & Rees L.1.P San Francisco, CA 94111 protection of the government contractor defense. TWENTY-FOURTH AFFIRMATIVE DEFENSE AS FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 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 parties, and not of 3M. TWENTY-FIFTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, in the cvent parties were not reasonably and adequately warned of potential dangers concerning misuse of the products at issue, the duty to provide the warnings was that of some other person and/or entity, for which 3M is neither responsible nor liable. TWENTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff’s injuries or illnesses, if any there were, were due to the acts or omissions of a person or persons over whom 3M had neither control nor the right of | control. TWENTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been involved in the subject incidents, it will also be found that 3M sold the product to some other person and/or entity with all appropriate information and documents about the product, and that 3M reasonably relied upon this “sophisticated user” to communicate these materials to the ultimate users of the product, including Plaintiff. TWENTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M alleges that Plaintiff and/or Plaintiffs employer(s) were and are sophisticated user(s) and knew independently or should have known of any danger or hazard associated with the use of asbestos, the use of a product containing asbestos, and _ -7- _. a . a . | DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS'y Street, Suite 2000 San Francisco. CA 94111 275 Bat exposure to high levels of dust of any sort, 3M further alleges that it warned Plaintiff's employer(s} of the danger or hazard, if any, associated with the use of its product and that Plaintiff and/or Plaintiff's employer(s) failed to rely upon such warning, resulting in alleged damages due to Plaintiff's and/or Plaintiffs employer's act or omission and failure to act as sophisticated users. TWENTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, while specifically and vigorously denying Plaintiff's allegations concerning liability, injuries, and damages, to the extent that PlainuilT may be able to prove those allegations, 3M states that they were the result of intervening acts of superseding negligence on the part of a person or persons over whom 3M had neither control nor the right of control. THIRTIETH AFFIRMATIVE DEFENSE AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff is barred from recovering for breach of warranty because Plaintiff was not in privity with 3M and, even if Plaintiff were in privity, 3M has disclaimed all applicable warranties. THIRTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A TIHRTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff is barred from recovery for alleged breaches of warranty by section 2607 of the Catifornia Uniform Commercial Code. THIRTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff has waived any and all claims sought in this action and is estopped both to assert and to recover upon such claims. THIRTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, any exposure of Plaintiff to and/or use of 3M's products, which -8- DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS,275 Battery Street, Si Gordon & Rees LLP San Francisco, CA 94111 exposure and/or use is vigorously denied, was so minimal as to be insufficient to establish a reasonable degree of probability that the products caused Plaintiffs claimed injuries and illnesses. THIRTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, the regulations adopted by OSHA pursuant to the Occupational Safety and Health Act allowed airborne asbestos and other dusts in Plainti!?'s workplaces below certain limits and approved the use of certain 3M respiratory protection equipment for protection from dust. To the extent these regulations conflict with the law of any jurisdiction where any of Plaintiff's workplaces were located, any such laws are preempted by the Occupational Safety and Health Act. THIRTY-FIFTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, at all times alleged in the complaint, the products Plaintiff alleges caused his injuries were designed, manufactured, sold, distributed, labeled, and advertised in compliance with the then existing state of the art in the industry to which 3M belonged and lurther; the benefits of any such product design outweighed any risk of danger in the design; and any such products met the safety expectations of Plaintiff and the general public. THIRTY-SIXTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been involved in the subject incidents, it will also be found that the product was, at all relevant times, safe for normal usage in the manner for which it was intended, the benefits of its design outweighed any foreseeable risks, and the product was not defective. THIRTY-SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, if a product for which 3M is responsible is found to have been involved in the subject incidents, it will be found that all parties were provided reasonably eS -- an -9- _ -- fe .. | DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOSSan Francisco, CA 94111 appropriate information concerning use of the product. THIRTY-EIGHTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, should Plaintiff prevail against 3M, 3M's liability is several and is limited to its own actionable segment of fault, which fault is vigorously denied. THIRTY-NINTH AFFIRMATIVE DEFENSE AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's claims of successor liability, and association with other entities, are neither factually nor legally supported, and, as such, Plaintiff has no claim against 3M, as asserted. To the extent any claim for relief in the complaint seeks to recover damages against 3M for alleged acts or omissions of predecessors or successors-in-interest ta 3M of any kind or description, 3M is not legally responsible and cannot legally be held liable for any such acts or omissions. Further, the conduct of any predecessor or successor-in-interest cannot, as a matter of law, provide a legal basis for liability or the imposition of damages against 3M. FORTIETH AFFIRMATIVE DEFENSE AS AND FOR A FORTIETH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's causes of action fail to state a claim upon which relief can be granted, for if relief is granted, such relief would constitute a taking of 3M’s property for a public use without just compensation, a violation of 3M’s Constitutional rights. FORTY-FIRST AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, Plaintiff's punitive damages claims impermissibly seek a multiple award and/or are unconstitutionally excessive under 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 Duc 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 provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, section 7 of the California Constitution; and the Equal a _ .. - -l o- - — DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSGordan & Rees LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Protection of the laws and 3M'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, and section 16 of the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M 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, 3M's Constitutional right to substantive and procedural due process of law would be contravened. FORTY-THIRD AFFIRMATIVE DEFENSE AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M alleges that the canses of action asserted by Plaintiff fail to state a claim upon which relief can be granted because such relief would constitute a denial of 3M's Constitutional right to equal protection under the law. FORTY-FOURTH AFFIRMATIVE DEFENSE AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT DEFENSE TO SAID UNVERIFIED COMPLAINT, 3M alleges that it is not responsible for the product line or items that Plaintiff claims that it manufactured, distributed, or sold. Rather, 3M asserts that another entity or entities manufactured, distributed, and sold this product line and is legally responsible therefor. WHEREFORE, 3M prays that Plaintiff takes nothing by his actions, that 3M be dismissed with costs of suit incurred herein, and for such other and further relief as this court deems just and proper. Dated: April B4f- 2009 GORDON & REES LLP LINDA M. MORONEY Attorneys for Defendant 3M COMPANY -ll- DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFI’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSGordon & Rees LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION ANTHONY CONTE V. ASBESTOS DEFENDANTS (B**P) SAN FRANCISCO SUPERIOR COURT CASE NO. CGC-09-275046 1, Ocie M. Taylor, declare: that 1 am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and I am employed in the County of San Francisco, California. My business address is Gordon & Rees LLP, Embarcadero Center West, 275 Battery Street, 20th Floor, San Francisco, California 94111. On the date executed below, | electronically served the document(s) via LexisNexis File & Serve described as: DEFENDANT 3M COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. | declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on April Z £2008 at San Francisco, California, alte. OCE M. Ge Mh -12- DEFENDANT 3M COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS