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28
Waisworth,
Franklin,
Bevins &
icCall, LLP
“Arroneys aru
CHARLES T. SHELDON, State Bar No. 155598
csheldon@wibm.com
DEREK S. JOHNSON, State Bar No. 220988
djohnson@wibm.com ELECTRONICALLY
WALSWORTH FRANKLIN BEVINS & MeCALL, LLP FILED
601 Montgomery Street, Ninth Floor Superior Court of California,
San Francisco, California 94111-2612 County of San Francisco
Telephone: (415) 781-7072 FEB 13 2013
Facsimile: (415) 391-6258 Clerk of the Court
Attorneys for Defendant BY WILLIAM v Nepal Clerk
GENERAL ELECTRIC COMPANY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ANTHONY CONTE, Case No. CGC-09-275046
Plaintiff, DEFENDANT GENERAL ELECTRIC
COMPANY'S ANSWER TO FIRST
v. AMENDED COMPLAINT FOR
PERSONAL INJURY (ASBESTOS);
HENNESSY INDUSTRIES, INC., et al., JURY DEMAND
Defendants.
Defendant GENERAL ELECTRIC COMPANY (“GE”) answers the unverified complaint
for personal injury and loss of consortium as follows:
Under the provisions of section 431.30 of the California Code of Civil Procedure, GE
denies each and every and all of the allegations of said complaint and denies that plaintiff
ANTHONY CONTE (“Plaintiff”) sustained damages in the sum or sums alleged, or in any other
sum, or at all. Additionally, GE is without sufficient information to admit or deny the allegations
contained in the Brayton*Purcell Master Complaint, which was not served on GE in this case, and
therefore denies the same,
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SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES
By alleging the Separate and Additional Affirmative Defenses set forth below, GE is not in
any way agrecing or conceding that it has the burden of proof or burden of persuasion on any of
these issues.
FIRST AFFIRMATIVE DEFENSE
GE alleges that said complaint and each cause of action therein fails to state facts sufficient
to constitute a cause of action against GE.
SECOND AFFIRMATIVE DEFENSE
GE alleges that the causes of action, if any, attempted to be stated and set forth in said
complaint are barred by the applicable statutes of limitations, including, but not limited to, the
provisions of sections 335.1, 338, 340.2 and 361of the California Code of Civil Procedure.
THIRD AFFIRMATIVE DEFENSE
GE alleges that the causes of action, if any, attempted to be stated and set forth in said
complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and laches.
FOURTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiffs and others were negligent or otherwise at fault in and about the
matters referred to in said complaint, and that such negligence and/or other fault bars or diminishes
Plaintiffs recovery against GE.
FIFTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiff was solely negligent in and about the matters alleged in said
complaint and that such negligence on the part of Plaintiff was the sole legal cause of the injuries
and damages complained of by Plaintiff, if any there were.
SIXTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiff assumed the risk of the matters referred to in said complaint, that
Plaintiff knew and appreciated the nature of the risk, and that Plaintiff voluntarily accepted the risk.
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SEVENTH AFFIRMATIVE DEFENSE
GE is informed and believes and thereon alleges that Plaintiff misused and abused the
products referred to in said complaint, and failed to follow instructions, and that such misuse, abuse
and failure to follow instructions on the part of Plaintiff proximately caused and contributed to the
injuries and damages complained of in said complaint, if any there were.
EIGHTH AFFIRMATIVE DEFENSE
GE alleges that if Plaintiff sustained injuries attributable to the use of any product
manufactured, supplied, or distributed by GE, which allegations are expressly denied, the injuries
were solely caused by and attributable to the unreasonable, unforeseeable, and inappropriate
purpose and improper use which was made of the product.
NINTH AFFIRMATIVE DEFENSE
GE alleges that if there was any negligence proximately causing the injuries or damages
sustained by Plaintiff, if any, such negligence, if any, was solely that of defendants, firms, persons,
or entities other than GE.
TENTH AFFIRMATIVE DEFENSE
GE alleges that there is no privity between Plaintiff and GE.
ELEVENTH AFFIRMATIVE DEFENSE
GE alleges that it gave no warranties, either express or implied, to Plaintiff and that neither
Plaintiff nor others ever notified GE of any claims of breach of warranty, if any there were.
TWELFTH AFFIRMATIVE DEFENSE
GF alleges that said complaint and each cause of action therein is barred with respect to GE
by the provisions of the Workers Compensation Act, including but not limited to sections 3600,
3601, and 5300 of the California Labor Code.
THIRTEENTH AFFIRMATIVE DEFENSE
GE alleges that if there was any negligence proximately causing the injuries or damages, if
any, sustained by Plaintiff, such negligence, if any, is collateral negligence, as that term is used and
defined in Restatement 2d Torts, Section 426 and derivative authority.
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APrORRIAN ATE
FOURTEENTH AFFIRMATIVE DEFENSE
GE alleges that at the time of the matters referred to in the complaint, plaintiff Anthony
Conte was employed by an employer other than GE and was entitled to and received workers”
compensation benefits from his employers; and that if there was any negligence proximately
causing the injuries and damages sustained by Plaintiff, if any, such negligence, if any, was that of
plaintiff Anthony Conte’s employers.
FIFTEENTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiff's claims, and each of them, and this action, are preempted by
federal statutes and regulations governing work place exposure to asbestos.
SIXTEENTH AFFIRMATIVE DEFENSE
GE alleges that the products referred to in said complaint, if manufactured by GE at all,
were manufactured in strict compliance with reasonably precise U.S. government specifications,
and that the hazards associated with use of the products, if any, were known equally to the federal
government and GE. (Boyle v. United Technologies Corp. (1988) 487 U.S. 500.) Therefore, the
first amended complaint and all alleged causes of action are barred by the government contractor
defense.
SEVENTEENTH AFFIRMATIVE DEFENSE
GE alleges that to the extent said complaint purports to state a cause of action or basis for
recovery under Sindell y, Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by Plaintiff's
failure to join as defendants the manufacturers of a substantial share of the asbestos products
market, to which asbestos products plaintiff Anthony Conte was allegedly exposed, thereby causing
the damages alleged; and, should it prove impossible to identify the manufacturers of the products
that allegedly injured plaintiff, said purported claim or cause of action is barred by the fault of
Plaintiff and his agents in making identification of the manufacturer impossible.
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EIGHTEENTH AFFIRMATIVE DEFENSE
GE alleges that, to the extent said complaint purports to state a cause of action or basis for
recovery upon lack of identification of the manufacturer of the alleged injury-causing product, it
fails to state facts sufficient to constitute a cause of action in that Plaintiff has asserted claims for
relief which, if allowed, would contravene GE’s constitutional rights to substantive due process of
law, as preserved by the Fourteenth Amendment to the U.S. Constitution and by Article I, Section 7
of the Constitution of the State of California.
NINETEENTH AFFIRMATIVE DEFENSE
GE alleges that said complaint, to the extent that it seeks exemplary or punitive damages
pursuant to section 3294 of the California Civil Code, violates GE’s right to procedural due process
under the Fourteenth Amendment of the U.S. Constitution, and Article I, Section 7 of the
Constitution of the State of California, and therefore fails to state a cause of action upon which
either punitive or exemplary damages can be awarded.
TWENTIETH AFFIRMATIVE DEFENSE
GE alleges that said complaint, to the extent that it seeks punitive or exemplary damages
pursuant to section 3294 of the California Civil Code, violates GE’s right to protection from
“excessive fines” as provided in the Eighth Amendment of the U.S. Constitution and Article 1,
Section 17 of the Constitution of the State of California, and violates GE ’s right to substantive due
process as provided in the Fifth and Fourteenth Amendments of the U.S. Constitution and the
Constitution of the State of California, and therefore fails to state a cause of action supporting the
punitive or exemplary damages claimed.
TWENTY-FIRST AFFIRMATIVE DEFENSE
GE alleges that said complaint, and each cause of action therein, fails to state facts
sufficient to warrant an award of punitive or exemplary damages against GE.
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TWENTY-SECOND AFFIRMATIVE DEFENSE
GE alleges that at all relevant times, plaintiff Anthony Conte’s employers were
sophisticated users of asbestos-containing products, and that said employers were aware of the
dangers, if any, of asbestos-containing products, and that said employers’ negligence in providing
the products to their employees in a negligent, careless and reckless manner was a superseding
intervening cause of Plaintiff's injuries, if any.
TWENTY-THIRD AFFIRMATIVE DEFENSE
GE alleges that at all relevant times plaintiff Anthony Conte was a sophisticated user of
asbestos-containing products, that plaintiff Anthony Conte was aware, or should have been aware,
of the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a
complete bar to Plaintiff's claims against GE as a matter of law. (Johnson v. American Standard,
Inc. (2008) 43 Cal.4th 56.)
TWENTY-FOURTH AFFIRMATIVE DEFENSE
GE alleges that the “peculiar risk” doctrine is not applicable to the causes of action
attempted to be stated and set forth against GE, because the injuries and damages complained of in
the first amended complaint, if any, arose in the course and scope of plaintiff Anthony Conte’s
employment by an independent contractor.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiff is barred from recovery in that all products produced by GE were
in conformity with the existing state-of-the-art, and as a result, these products were not defective in
any manner.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
GE alleges that the causes of action, if any, attempted to be stated and set forth in said
complaint for negligence per se are barred by section 6204.5 of the California Labor Code, and
derivative authority.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
GE alleges that Plaintiff failed to exercise due diligence to mitigate their losses, injuries or
damages, if any, and, accordingly, the amount of damages to which Plaintiff is entitled, if any,
should be reduced by the amount of damages which otherwise would have been mitigated.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
GE alleges that it had no knowledge, either actual or constructive, and by the application of
reasonable, developed human skills and foresight had no reason to know of the propensities, if any,
8 | of any product allegedly manufactured, supplied, applied and/or sold by GE to cause or contribute
to the creation of medical conditions or circumstances involving alleged injuries to the lungs,
respiratory and cardiovascular systems, including cancer, mesothelioma, or any other illness of any
type whatsoever.
TWENTY-NINTH AFFIRMATIVE DEFENSE
GE alleges that the provisions of section 1431.2 of the California Civil Code are applicable
to the first amended complaint and each cause of action therein.
THIRTIETH AFFIRMATIVE DEFENSE
GE alleges that unforeseen and unforeseeable acts and omissions by others constitute a
superseding, intervening cause of Plaintiff's injuries, if any.
THIRTY-FIRST AFFIRMATIVE DEFENSE
GE alleges that each of Plaintiff's claims, and this entire action, are preempted by all
applicable federal law relating to railroads, their equipment, and/or alleged injuries and damages
arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49 U.S.C. §§
20701, et seq.
THIRTY-SECOND AFFIRMATIVE DEFENSE
The matters alleged in said complaint are encompassed within and barred by a settlement
and release agreement reached by the parties, which operates as a merger and bar against any
further litigation on matters raised or potentially raised in connection with the settlement and
release.
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THIRTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiff has released, settled, entered into an accord and satisfaction, or
otherwise compromised their claims herein, with GE regarding this litigation and this accord was
then properly satisfied, the claims, causes of action, theories of liability and matters alleged in said
Complaint are barred.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
GE alleges that as a result of the injuries, Plaintiff has received and will continue to receive
workers’ compensation benefits from their employers or their insurance carriers, or both, in an
amount not yet definitely ascertained and determined; that the total amount of these payments is
not yet known to GE; that by virtue of sections 3850 and 3852 of the California Labor Code, and
related sections, the employers and their insurance carriers are subrogated to the rights of Plaintiff’
for any and all monies Plaintiff may receive from GE up to the amount paid to Plaintiff, that
Plaintiff's injuries arose as a direct and proximate result of the negligence and carelessness of the
employers, and the employers and their insurance carriers are not entitled to reimbursement for
monies paid or to be paid to Plaintiff; and in the event of any judgment in favor of Plaintiff and
against GE, it should be reduced by the amounts paid or to be paid to Plaintiffs by the employers or
their insurance carriers.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
The claims asserted in said complaint have been settled, compromised or otherwise
discharged and GE is due a set off.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff has previously filed a dismissal in court dismissing with
prejudice all of his asserted claims, causes of action, and other theories of liability against GE, the
matters alleged in said complaint are barred by retraxit.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs claims herein are barred based on the primary right and res judicata doctrines
which prohibit splitting a single cause of action into successive suits, and seeking new recovery for
injuries for which Plaintiff was previously compensated by alleged joint tortfeasors.
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE
GE alleges that the causes of action, if any, attempted to be stated and set forth in said
complaint are barred by applicable statutes of repose, including statutes of repose in other states
that are applicable to this action pursuant to section 361 of the California Code of Civil Procedure.
THIRTY-NINTH AFFIRMATIVE DEFENSE
GE alleges that maritime law is applicable to the extent said complaint purports to allege
exposure from plaintiff Anthony Conte’s work with asbestos-containing equipment produced for
use aboard a vessel on navigable waters. (Conner, et al. v. Alfa Laval, et al., (E.D. Pa. July 22,
2011, No. 09-67099) __ F.Supp.2d__ [2011 WL 3101810, at * 1]; Sweeney v. Saberhagen
Holdings, Inc., et al. (E.D. Pa. Jan. 13, 2011, No. 09-64399) _ F.Supp.2d__ [2011 WL 346822, at
*3], adopted (E.D. Pa. Feb. 3, 2011, No. 09-64399) __ F.Supp.2d __ [2011 WL 359696, at *3].)
Therefore, the first amended complaint and all causes of action alleged therein are barred by the
bare metal defense. (Sweeney v. Saberhagen Holdings, Inc., et al., supra, 2011 WL 346822, at *3
[citing Lindstrom v. A-C Prod, Liab. Trust (6th Cir. 2005) 424 F.3d 488, 494-495; Delatte, et al. v.
A.W. Chesterton Co., et al., (.D. Pa, Feb, 28, 2011, No, 09-69578 (08-00206))__ F.Supp.2d __
[slip op. at 4~6]; Ferguson v. Lorillard Tobacco Co., Inc., et al., (E.D. Pa. Feb. 28, 2011, No. 09-
91161 (06-10006)), __ F.Supp.2d __ [slip op. at 4-6]]; see also Taylor v, Elliott Turbomachinery
Co., Inc. (2009) 171 Cal.App.4th 564, 571 (recognizing that bare metal defense under California
law negates a defendant’s duty to warn of and liability for hazards inherent in defective products
manufactured or supplied by third parties).)
PRAYER
WHEREFORE, GE prays:
1 That Plaintiff take nothing by reason of said complaint;
2. That GE be awarded costs of suit herein and such other and further relief as the
Court deems just;
3. That if GE is found liable, the degree of the responsibility and liability for the
resulting damages be determined, and that GE be held liable only for that portion of the total
damages in proportion to its liability for the same.
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DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR
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2 GE hereby demands a trial by jury in the above-entitled action and estimates that the length
3 J of trial will be.six to eight weeks in duration.
Dated: February 12,2013 WALSWORTH FRANKLIN BEVINS & McCALL, LLP
ESF
DEREK. 8, JOHNSON
Attorneys for Defendant
GENERAL ELECTRIC COMPANY
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PROOF OF SERVICE
Anthony Conte v. Hennessy International, Inc., et al.
San Francisco Court Case No. CGC-09-275046
Our Client: General Electric Company
Tam employed in the County of San Francisco, State of California. | am over the age of 18
and not a party to the within action, My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.
On February 12, 2013, Lserved the within document(s) described as:
DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY. DEMAND
on the interested parties in this action-as stated below:
Brayton Purcell LLP
222 Rush Landing Road
P.O, Box 6169
Novato, CA 94948
(BY ELECTRONIC FILING/SER VICE) I provided the document(s) listed above
electronivally to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. Ifthe document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deerned
served on the date that it was provided to LexisNexis, A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.
1 declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on February 12,2013, at San Francisco, California.
(Type or-print name) (Signature)
PERSONAL INJURY (ASBESTOS) JURY DEMAND
2286590.1
S908-BRAYTON
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28 Waisworth, Franklin, Bevins & icCall, LLP “Arroneys aru CHARLES T. SHELDON, State Bar No. 155598 csheldon@wibm.com DEREK S. JOHNSON, State Bar No. 220988 djohnson@wibm.com ELECTRONICALLY WALSWORTH FRANKLIN BEVINS & MeCALL, LLP FILED 601 Montgomery Street, Ninth Floor Superior Court of California, San Francisco, California 94111-2612 County of San Francisco Telephone: (415) 781-7072 FEB 13 2013 Facsimile: (415) 391-6258 Clerk of the Court Attorneys for Defendant BY WILLIAM v Nepal Clerk GENERAL ELECTRIC COMPANY SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ANTHONY CONTE, Case No. CGC-09-275046 Plaintiff, DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO FIRST v. AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); HENNESSY INDUSTRIES, INC., et al., JURY DEMAND Defendants. Defendant GENERAL ELECTRIC COMPANY (“GE”) answers the unverified complaint for personal injury and loss of consortium as follows: Under the provisions of section 431.30 of the California Code of Civil Procedure, GE denies each and every and all of the allegations of said complaint and denies that plaintiff ANTHONY CONTE (“Plaintiff”) sustained damages in the sum or sums alleged, or in any other sum, or at all. Additionally, GE is without sufficient information to admit or deny the allegations contained in the Brayton*Purcell Master Complaint, which was not served on GE in this case, and therefore denies the same, dif tit Ut Mf -l- DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTON28 Walsworth, Fennkdlin, Bevins & McCall, LP arrears SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES By alleging the Separate and Additional Affirmative Defenses set forth below, GE is not in any way agrecing or conceding that it has the burden of proof or burden of persuasion on any of these issues. FIRST AFFIRMATIVE DEFENSE GE alleges that said complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against GE. SECOND AFFIRMATIVE DEFENSE GE alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by the applicable statutes of limitations, including, but not limited to, the provisions of sections 335.1, 338, 340.2 and 361of the California Code of Civil Procedure. THIRD AFFIRMATIVE DEFENSE GE alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and laches. FOURTH AFFIRMATIVE DEFENSE GE alleges that Plaintiffs and others were negligent or otherwise at fault in and about the matters referred to in said complaint, and that such negligence and/or other fault bars or diminishes Plaintiffs recovery against GE. FIFTH AFFIRMATIVE DEFENSE GE alleges that Plaintiff was solely negligent in and about the matters alleged in said complaint and that such negligence on the part of Plaintiff was the sole legal cause of the injuries and damages complained of by Plaintiff, if any there were. SIXTH AFFIRMATIVE DEFENSE GE alleges that Plaintiff assumed the risk of the matters referred to in said complaint, that Plaintiff knew and appreciated the nature of the risk, and that Plaintiff voluntarily accepted the risk. it Mt Mt -2- DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTON28 Walsworth, Franklin, Bevins & McCall, LLP Arrouness ar Low" SEVENTH AFFIRMATIVE DEFENSE GE is informed and believes and thereon alleges that Plaintiff misused and abused the products referred to in said complaint, and failed to follow instructions, and that such misuse, abuse and failure to follow instructions on the part of Plaintiff proximately caused and contributed to the injuries and damages complained of in said complaint, if any there were. EIGHTH AFFIRMATIVE DEFENSE GE alleges that if Plaintiff sustained injuries attributable to the use of any product manufactured, supplied, or distributed by GE, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable, unforeseeable, and inappropriate purpose and improper use which was made of the product. NINTH AFFIRMATIVE DEFENSE GE alleges that if there was any negligence proximately causing the injuries or damages sustained by Plaintiff, if any, such negligence, if any, was solely that of defendants, firms, persons, or entities other than GE. TENTH AFFIRMATIVE DEFENSE GE alleges that there is no privity between Plaintiff and GE. ELEVENTH AFFIRMATIVE DEFENSE GE alleges that it gave no warranties, either express or implied, to Plaintiff and that neither Plaintiff nor others ever notified GE of any claims of breach of warranty, if any there were. TWELFTH AFFIRMATIVE DEFENSE GF alleges that said complaint and each cause of action therein is barred with respect to GE by the provisions of the Workers Compensation Act, including but not limited to sections 3600, 3601, and 5300 of the California Labor Code. THIRTEENTH AFFIRMATIVE DEFENSE GE alleges that if there was any negligence proximately causing the injuries or damages, if any, sustained by Plaintiff, such negligence, if any, is collateral negligence, as that term is used and defined in Restatement 2d Torts, Section 426 and derivative authority. Mt 3- DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR’ PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTON28 Watsworth, Franklin, Bevins & McCall, LLP APrORRIAN ATE FOURTEENTH AFFIRMATIVE DEFENSE GE alleges that at the time of the matters referred to in the complaint, plaintiff Anthony Conte was employed by an employer other than GE and was entitled to and received workers” compensation benefits from his employers; and that if there was any negligence proximately causing the injuries and damages sustained by Plaintiff, if any, such negligence, if any, was that of plaintiff Anthony Conte’s employers. FIFTEENTH AFFIRMATIVE DEFENSE GE alleges that Plaintiff's claims, and each of them, and this action, are preempted by federal statutes and regulations governing work place exposure to asbestos. SIXTEENTH AFFIRMATIVE DEFENSE GE alleges that the products referred to in said complaint, if manufactured by GE at all, were manufactured in strict compliance with reasonably precise U.S. government specifications, and that the hazards associated with use of the products, if any, were known equally to the federal government and GE. (Boyle v. United Technologies Corp. (1988) 487 U.S. 500.) Therefore, the first amended complaint and all alleged causes of action are barred by the government contractor defense. SEVENTEENTH AFFIRMATIVE DEFENSE GE alleges that to the extent said complaint purports to state a cause of action or basis for recovery under Sindell y, Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by Plaintiff's failure to join as defendants the manufacturers of a substantial share of the asbestos products market, to which asbestos products plaintiff Anthony Conte was allegedly exposed, thereby causing the damages alleged; and, should it prove impossible to identify the manufacturers of the products that allegedly injured plaintiff, said purported claim or cause of action is barred by the fault of Plaintiff and his agents in making identification of the manufacturer impossible. it Me Mf Hl 4. DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590,1 3908-BRAYTONo Uw NI KN Walsworth, arroasgassr ta EIGHTEENTH AFFIRMATIVE DEFENSE GE alleges that, to the extent said complaint purports to state a cause of action or basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing product, it fails to state facts sufficient to constitute a cause of action in that Plaintiff has asserted claims for relief which, if allowed, would contravene GE’s constitutional rights to substantive due process of law, as preserved by the Fourteenth Amendment to the U.S. Constitution and by Article I, Section 7 of the Constitution of the State of California. NINETEENTH AFFIRMATIVE DEFENSE GE alleges that said complaint, to the extent that it seeks exemplary or punitive damages pursuant to section 3294 of the California Civil Code, violates GE’s right to procedural due process under the Fourteenth Amendment of the U.S. Constitution, and Article I, Section 7 of the Constitution of the State of California, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. TWENTIETH AFFIRMATIVE DEFENSE GE alleges that said complaint, to the extent that it seeks punitive or exemplary damages pursuant to section 3294 of the California Civil Code, violates GE’s right to protection from “excessive fines” as provided in the Eighth Amendment of the U.S. Constitution and Article 1, Section 17 of the Constitution of the State of California, and violates GE ’s right to substantive due process as provided in the Fifth and Fourteenth Amendments of the U.S. Constitution and the Constitution of the State of California, and therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. TWENTY-FIRST AFFIRMATIVE DEFENSE GE alleges that said complaint, and each cause of action therein, fails to state facts sufficient to warrant an award of punitive or exemplary damages against GE. tf tif Mf it Se DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTONWhisworth Franklin, Bevins & TWENTY-SECOND AFFIRMATIVE DEFENSE GE alleges that at all relevant times, plaintiff Anthony Conte’s employers were sophisticated users of asbestos-containing products, and that said employers were aware of the dangers, if any, of asbestos-containing products, and that said employers’ negligence in providing the products to their employees in a negligent, careless and reckless manner was a superseding intervening cause of Plaintiff's injuries, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE GE alleges that at all relevant times plaintiff Anthony Conte was a sophisticated user of asbestos-containing products, that plaintiff Anthony Conte was aware, or should have been aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a complete bar to Plaintiff's claims against GE as a matter of law. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.) TWENTY-FOURTH AFFIRMATIVE DEFENSE GE alleges that the “peculiar risk” doctrine is not applicable to the causes of action attempted to be stated and set forth against GE, because the injuries and damages complained of in the first amended complaint, if any, arose in the course and scope of plaintiff Anthony Conte’s employment by an independent contractor. TWENTY-FIFTH AFFIRMATIVE DEFENSE GE alleges that Plaintiff is barred from recovery in that all products produced by GE were in conformity with the existing state-of-the-art, and as a result, these products were not defective in any manner. TWENTY-SIXTH AFFIRMATIVE DEFENSE GE alleges that the causes of action, if any, attempted to be stated and set forth in said complaint for negligence per se are barred by section 6204.5 of the California Labor Code, and derivative authority. Mf My} tif -6- DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTON28 Walswarth, Frankia, Bevins & McCall, LLP avronxeys arta TWENTY-SEVENTH AFFIRMATIVE DEFENSE GE alleges that Plaintiff failed to exercise due diligence to mitigate their losses, injuries or damages, if any, and, accordingly, the amount of damages to which Plaintiff is entitled, if any, should be reduced by the amount of damages which otherwise would have been mitigated. TWENTY-EIGHTH AFFIRMATIVE DEFENSE GE alleges that it had no knowledge, either actual or constructive, and by the application of reasonable, developed human skills and foresight had no reason to know of the propensities, if any, 8 | of any product allegedly manufactured, supplied, applied and/or sold by GE to cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lungs, respiratory and cardiovascular systems, including cancer, mesothelioma, or any other illness of any type whatsoever. TWENTY-NINTH AFFIRMATIVE DEFENSE GE alleges that the provisions of section 1431.2 of the California Civil Code are applicable to the first amended complaint and each cause of action therein. THIRTIETH AFFIRMATIVE DEFENSE GE alleges that unforeseen and unforeseeable acts and omissions by others constitute a superseding, intervening cause of Plaintiff's injuries, if any. THIRTY-FIRST AFFIRMATIVE DEFENSE GE alleges that each of Plaintiff's claims, and this entire action, are preempted by all applicable federal law relating to railroads, their equipment, and/or alleged injuries and damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49 U.S.C. §§ 20701, et seq. THIRTY-SECOND AFFIRMATIVE DEFENSE The matters alleged in said complaint are encompassed within and barred by a settlement and release agreement reached by the parties, which operates as a merger and bar against any further litigation on matters raised or potentially raised in connection with the settlement and release. if Te DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.) 3908-BRAYTONoo 28 Walsworth, Franklin, Bevins & McCall LLP ATTONES AT A THIRTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiff has released, settled, entered into an accord and satisfaction, or otherwise compromised their claims herein, with GE regarding this litigation and this accord was then properly satisfied, the claims, causes of action, theories of liability and matters alleged in said Complaint are barred. THIRTY-FOURTH AFFIRMATIVE DEFENSE GE alleges that as a result of the injuries, Plaintiff has received and will continue to receive workers’ compensation benefits from their employers or their insurance carriers, or both, in an amount not yet definitely ascertained and determined; that the total amount of these payments is not yet known to GE; that by virtue of sections 3850 and 3852 of the California Labor Code, and related sections, the employers and their insurance carriers are subrogated to the rights of Plaintiff’ for any and all monies Plaintiff may receive from GE up to the amount paid to Plaintiff, that Plaintiff's injuries arose as a direct and proximate result of the negligence and carelessness of the employers, and the employers and their insurance carriers are not entitled to reimbursement for monies paid or to be paid to Plaintiff; and in the event of any judgment in favor of Plaintiff and against GE, it should be reduced by the amounts paid or to be paid to Plaintiffs by the employers or their insurance carriers. THIRTY-FIFTH AFFIRMATIVE DEFENSE The claims asserted in said complaint have been settled, compromised or otherwise discharged and GE is due a set off. THIRTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiff has previously filed a dismissal in court dismissing with prejudice all of his asserted claims, causes of action, and other theories of liability against GE, the matters alleged in said complaint are barred by retraxit. THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs claims herein are barred based on the primary right and res judicata doctrines which prohibit splitting a single cause of action into successive suits, and seeking new recovery for injuries for which Plaintiff was previously compensated by alleged joint tortfeasors. -8- DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTON28 Woalsworth, Franklin, Bovins & MeCalt, LLP. spronseysar iow THIRTY-EIGHTH AFFIRMATIVE DEFENSE GE alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by applicable statutes of repose, including statutes of repose in other states that are applicable to this action pursuant to section 361 of the California Code of Civil Procedure. THIRTY-NINTH AFFIRMATIVE DEFENSE GE alleges that maritime law is applicable to the extent said complaint purports to allege exposure from plaintiff Anthony Conte’s work with asbestos-containing equipment produced for use aboard a vessel on navigable waters. (Conner, et al. v. Alfa Laval, et al., (E.D. Pa. July 22, 2011, No. 09-67099) __ F.Supp.2d__ [2011 WL 3101810, at * 1]; Sweeney v. Saberhagen Holdings, Inc., et al. (E.D. Pa. Jan. 13, 2011, No. 09-64399) _ F.Supp.2d__ [2011 WL 346822, at *3], adopted (E.D. Pa. Feb. 3, 2011, No. 09-64399) __ F.Supp.2d __ [2011 WL 359696, at *3].) Therefore, the first amended complaint and all causes of action alleged therein are barred by the bare metal defense. (Sweeney v. Saberhagen Holdings, Inc., et al., supra, 2011 WL 346822, at *3 [citing Lindstrom v. A-C Prod, Liab. Trust (6th Cir. 2005) 424 F.3d 488, 494-495; Delatte, et al. v. A.W. Chesterton Co., et al., (.D. Pa, Feb, 28, 2011, No, 09-69578 (08-00206))__ F.Supp.2d __ [slip op. at 4~6]; Ferguson v. Lorillard Tobacco Co., Inc., et al., (E.D. Pa. Feb. 28, 2011, No. 09- 91161 (06-10006)), __ F.Supp.2d __ [slip op. at 4-6]]; see also Taylor v, Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 571 (recognizing that bare metal defense under California law negates a defendant’s duty to warn of and liability for hazards inherent in defective products manufactured or supplied by third parties).) PRAYER WHEREFORE, GE prays: 1 That Plaintiff take nothing by reason of said complaint; 2. That GE be awarded costs of suit herein and such other and further relief as the Court deems just; 3. That if GE is found liable, the degree of the responsibility and liability for the resulting damages be determined, and that GE be held liable only for that portion of the total damages in proportion to its liability for the same. 9. DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY DEMAND 2256590.1 3908-BRAYTONi JURY DEMAND 2 GE hereby demands a trial by jury in the above-entitled action and estimates that the length 3 J of trial will be.six to eight weeks in duration. Dated: February 12,2013 WALSWORTH FRANKLIN BEVINS & McCALL, LLP ESF DEREK. 8, JOHNSON Attorneys for Defendant GENERAL ELECTRIC COMPANY 4 5 6 7 By: 8 9 0 28 Walworth, Trani, _. : 10- mecalcbbe BEFENDANT GENERAL ELECTRIC COMPANY'S ANSWERS TO FIRST AMENDED COMPLAINT FOR snes st PERSONAL INJURY (ASBESTOS), JURY DEMAND 2256590.1 3908-BRAYTON28 Walswortl, Frankia, eying & Breall, LLP rrensers apne PROOF OF SERVICE Anthony Conte v. Hennessy International, Inc., et al. San Francisco Court Case No. CGC-09-275046 Our Client: General Electric Company Tam employed in the County of San Francisco, State of California. | am over the age of 18 and not a party to the within action, My business address is 601 Montgomery Street, Ninth Floor, San Francisco, California 94111-2612. On February 12, 2013, Lserved the within document(s) described as: DEFENDANT GENERAL ELECTRIC COMPANY'S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY (ASBESTOS); JURY. DEMAND on the interested parties in this action-as stated below: Brayton Purcell LLP 222 Rush Landing Road P.O, Box 6169 Novato, CA 94948 (BY ELECTRONIC FILING/SER VICE) I provided the document(s) listed above electronivally to the LexisNexis File & Serve Website to the parties on the Service List maintained on the LexisNexis File & Serve Website for this case. Ifthe document is provided to LexisNexis electronically by 5:00 p.m., then the document will be deerned served on the date that it was provided to LexisNexis, A copy of the "LexisNexis File & Serve Filing Receipt" page will be maintained with the original document(s) in our office. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 12,2013, at San Francisco, California. (Type or-print name) (Signature) PERSONAL INJURY (ASBESTOS) JURY DEMAND 2286590.1 S908-BRAYTON