Exhibit,Appendix: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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SAN ER.

(415) 675-7000

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Bruce Imai, Esq. (Bar No. 053800)
Tina Yim, Esq. (Bar No. 232597)

IMAL, TADLOCK, KEENEY & CORDERY, LLP

100 BUSH STREET, SUITE 1300
SAN FRANCISCO, CA 94104
Telephone: (415) 675-7000
Facsimile: (415) 675-7008

Attorneys for Defendant

COMMAIR MECHANICAL SERVICES

IN THE SUPERIOR-COURT OF THE STATE OF CALIFORNIA

IN AND FOR:THE CITY AND COUNTY OF SAN FRANCISCO
‘UNLIMITED JURISDICTION

ROBERT ROSS and JEANROSS,

Plaintiffs,

C.C. MOORE & CO, ENGINEERS, et al.,

Defendants.

ELECTRONICALLY
FILED

Superior Court of Califorriia, *
County of San Francisco. ~ *-
FEB 25 2013...

Clerk of the Court | ~
BY: ALISON AGBAY,
Deputy Glerk *

CASE NO. CGC-10-275731
(ASBESTOS)

EXHIBITS B, C, BD, AND E TO THE
DECLARATION OF TINA YIM IN SUPPORT
OF COMMATR MECHANICAL SERVICES*
MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY 7.
JUDGMENT .

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503

Judge: Hon. Ter: L, Jackson

Complaint Filed: December 17, 2010
Trial Date: June 10, 2013

Attached are EXHIBITS B, C, D, AND E TO THE DECLARATION OF TINA ‘YIM IN
SUPPORT OF COMMAIR MECHANICAL SERVICES’ MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT,

-l-

EXHIBITS 5, C,D, AND ETO THE DECLARATION OF TINA YIM IN SUPPORT OF COMMAIR.
MECHANICAL SERVICES’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY JUDGMENT1 PROOF OF SERVICE
2 - T, Heather Cherry, declare:
3 Iam a resident of the State of California and over the age of eighteen years, and not a

party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA.
4)| 94104. On the date of execution below, I served the within documents:

fully prepaid, inthe United States mail at San Francisco, California addressed as set
10 : forth below.

5 EXHIBITS B, C, D, AND E TO THE DECLARATION OF TINA YIM IN SUPPORT
OF COMMAIR MECHANICAL SERVICES’ MOTION FOR SUMMARY JUDGMENT
6 OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT
7 by transmitting via facsimile the document(s) listed above to the fax number(s) set :
forth below on this date before 5:00 p.m. :
g . :
9 | by placing the document(s) listed above in a sealed envelope with postage thereon
I
I

by personally delivering the document(s) listed above to the person(s) at the

address(es) set forth below.
13 &| On the date of execution below, | electronically servéd the document via File &
‘ 3 / ‘i SenveNpress on the recipients designated on the Transaction Receipt located on the
g 2 4 File & ServeXpress Web site.
j 215
a =z | Brayton Purcell, LLP
16 222 Rush Landing Road
Novato, CA 94945-2469 :
I
17 I declare under penalty ‘of patjury under the laws of the State of Califomia thet the abave |
18 is true and correct.
19 Executed on February 22,2013, at San Franciseo, California. -
20
1 8 ‘sf Heather Cherry
Heather Cherry
22

Ross. Robert and Jean v, C.C, Moore & Co. Engineers, et al. ,
23)| SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731 ,

2.
ATTACHED ARE EXUIBITS B, C, D, AND E TO THE DECLARATION OF TINA YIM IN SUPFORT OF
COMMATR. MECHANICAL SERVICES’ MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY JUDGMENT.1 PROOF OF SERVICE |
2
3 I, Tina Yim, declare:
Jam aresident of the State of California and over the age of eighteen years, and not a
4 || party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA
5 94104. On the date of execution below, I served the within documents:
EXHIBITS B, C, D, AND E TO THE DECLARATION OF TINA YIM IN SUPPORT |
6 OF COMMAIR MECHANICAL SERVICES’ MOTION FOR: SUMMARY JUDGMENT j
7 OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT :
by transmitting via facsimile the docurnent(s} listed above to, the fax number(s) set
8 forth below on this date before 5:00 p.m. ,
9 [ by placing the document(s) listed above in a sealed envelope with postage therean
a 10 “| fully prepaid, in the United States mail at San Francisco, California addressed ag set
3 forth below.
2 11 :
3 12 >| by personally delivering the document(s) listed above to the person(s) at the
es address(es) set forth below:
So 3 43
ove bed Brayton Purcell, LLP |
fgeica 14 222 Rush Landing Road
sgeages Novato, CA 94945-2469 |
ao 16 . On the date of execution below, I electronically served the document via File & |
8 a ServeXpress on the recipients designated on the Transaction Receipt located on the i
5 File & ServeXpress Web site. |
4 17 |
a i
i 18 I declare under penalty of perjury under the laws of the State of California that the above ;
s is true and correct.
~ 19
Executed on February 22, 2013, at San Francisco, California.
20 :
21 . a
‘sf Tina Yim
22 Tina’Yim
. 4
23 Ross, Robert and Jean v. C.C. Moore & Co. Engineers, et al..
34 || SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731
25
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3.
* ATTACHED ARE EXHIBITS 8, C, D, AND E£ TO THE DECLARATION OF TINA YIM IN SUPPORT OF
COMMAIR MECHANICAL SERVICES MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY JUDGMENT.EXHIBIT BBRAYTIGN+PURCEL |, LLP

ATTORNEYS AT LAW

222 RUSH LANDING ROAD

FOBOX 0107

NOVATO, CALIPORNLA S4998-6149

{055} SESS

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PARA oe oN Se SB ee YT DR A Be De SS

DAVID R. DONADIO, ESQ,, 8.8. #154436

BRAYTON*PURCELL LLP
Mtomneys at Law hoed ELECTRONICALLY
ush Landing Roa
P.0. Box 6169 FiLED-
Novato, California 94948-6169 Superior Court of Califomia,
(415) 898-1555 Couniy of San Francisca
MAY 11 2012

Aitomeys for Plaintiffs Clerk of the Court

BY: ALIEON AGBAY

Daputy Clark
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, ASBESTOS
No. CGC-10-275731
Plaintifis,
WS. . THIRD AMENDED COMPLAINT FOR

PERSONAL INJURY AND LOSS OF
C.C, MOORE & CO. ENGINEERS; CONSORTIUM - ASBESTOS
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint

herein; and DOES 1-8500. }

1. Plaintiff ROBERT ROSS was born September 9, 1935.

2. The Brayton’ Purcel] Master Complaint for Personal Injury [and Loss of
Consortium)- Asbestos (hereinafter "Master Complaint") was filed January 2, 2003, in Ban
Francises Superior Court, A copy of the Master Complaint and General Order No. 55 may be
obtained upon request from Brayton® Purcell, and designated portions of the Master Complaint
are incorporated by reference herein pureuant to the authority conferred by General Order No.
55. Plaintiffs’ claims are as set forth in said Master Complaint against defendants herein as

follows:

ttt
if
ueCause of Action RB Bc D Lk LUM WN
First (Negligence} B UG Oo DO
Second (Strict abi) «=§ oO oO

Third (Palse : H mm a

Representatton} -
As to Defendants CAHILL CONSTRUCTION SERVICES, INC. CAHILL CONTRACTORS, INC,
CAHILL CONSTRUCTION CO, INC.; HANSON PERMANENTE CEMENT, INC, FORMERLY KNOWN AS KAISER CEMENT CORPORATION, only.

Fourth (Loss of o . - 5 52
Consersins) : Bea ooogo wk wBeo eo
Fifth (Premises Cwner! <7 —
Cootractor Liability)
Sixth, Seventh, Eighth oO.
(Unseaworthiness, Negligence .
. Jones Act], Maintenance and Cure)
. Ninth (Longshore and Harbor Workers G
Compensation Act (LHWCA)) +
“Tenth, Eleventh (F-E.L.AJ Oo
Twelfth, Thirteenth (Respiratory -
Safely Devices) uo

*Fourieenth, Fifteenth
{Brake Shoe Grinding)

ao

Sixteenth (Concert of Action)

Seventeenth, Eighteenth (Fraud, Deceit/Megligent
Misrepresentation/Concealment) . -

Nineteenth (Fraud/Deceit/
Intentional Misrepresentation)

Twentieth (Fraud/Deceit - Kent) , - Oo .
Twenty-First (Aiding/Abetting Battery - Met Life)

*and their alternate enlities as sel forth in the Master Complaint or on any Exhibit1

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a

3. Plaintiff's asbestos-related mjury, date of diagnosis, employment status, and
history of exposure to asbestos are as stated on Extubit A,

4, Plaintiffs were mrarsied on December 15, 1979.

5. Plaintiff hereby amends the Master Complaint on file herein, to incorporate a
new Twenty-First Cause of Action, set forth below, specially plead against the defendant listed
on Exhibit N, mamely METROPOLITAN LIFE INSURANCE COMPANY. (Plaintiffs are in
the process of amendiig ihe Master Complaint herein and will include this new Cause of
Action in said amendment.)

oe and Absiting Battery

invite apap

AS AND FOR A FURTHER, TWENTY-FIRST, SEFARATE AND DISTINCT
CAUSE OF ACTION FOR AIDING AND ABE TTING BATTERY, PLAINTIFF
COMPLAINS OF DEFENDANTS METROPOLITAN LIFE INSURANCE COMPANY,
DEFENDANTS ON EXHIBIT N, DOES 7501-7900, THEIR ALTERNATE ENTRIES AND
EACH OF THEM, AND ALLEGES AS FOLLOWS: :

225. Plaintiff'incarporates herein by reference, as though fully set forth hereat, each
and every allegation of the First through Third and Sixteenth, Seventeenth, Highteenth and
Nineteenth Causes of Action as though fully set forth herein. (As used throughout this cause of
action, ‘plaintiff refers to all nanted plaintif{s and/or all named decedents from whom the
named plaintifi's injuries may derive.)

226. This cause of action is for the aiding and abetting of battery by METROPOLITAN
LIFE INSURANCE COMPANY (“MET LIFE”), primarily through ifs assistant medical
director Anthony Lanza, MD., of a breach of duty committed by Johns-Manville Corporation
(T-M").

227. Plaintiff is informed and believes, and thefeon Alleges, that af al] {imes herein
mentioned defendant MET LIFE was and is a corporation organized and existing under and by

virtue of the Jaws of the State of New York. or the laws of some other state or forcignwe oe YA Ww B&B HN

jurisdiction, and that this defendant was and is authorized to clo and/or was and is doing

business in the State of California, and regularly conducted or conducts business in the County

of San Francisco, State of California, At times relevant to this cause of action, MET LIFE was.

an insurer of J-M.

228. Maintiif, was exposed to asbestos-confaiming dust created by the use of the
asbestos products manufactured, dislributed and/or supplied by J-M. This exposure to the
asbestos or asbestos-related products supplied by J-M caused Plaintiff's asbestos-related
disease and injuries. .

229. Starling in 1928, MET LIFE sponsored studies of asbestos dust and asbestos-
related disease: in Canadian mines and mills, including thoge of J-M. Those studies revealed
that miners and mil] workers were contracting asbestosis at relatively low levels of dust.
McGill University, which conducted the studies, sought permission from MET LIFE to publish
the results but they were never published. MET LIFE prepared its own report of these studies.

230, Between 1929 and 1931, MET LIFE stodied dust Ievels and disease at five US.
plants manufacturing asbestos-comtaining products, including aJ-M plant. Those studies
showed that workera in substantial numbers were contractizig asbestosis, at levels less than
what became the Threshold Limit Value (“TLV”) of Smppef. The MET LIFE report was never
published or disseminated except to plant owners, including J-M.

231. In 1932, MET LIFE studied dust levels and disease at the J-M plant at Manville,
New Jersey. Results were consistent with those of the Canadian and previous U.S. plant
studies, They were never published.

232. In 1934, J-M and others whose plants MET LIFE had studied agreed with MET
LIFE that it should issue a report ofits studies.

233. MET LIFE submilted 4 draft ofits report to J-M. I-M requested, for legal and
busiziess reasons, that certain critical parts of the draft be changed. MET LIFE’s official ia
charge was Lanza, MET LIFE through Lanza did make changes that J-M requested, including:

{a Deletion of MET LIFE’s conclusion that the permissible dust level for asbestos

should be less than that for silica;rom eo
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{bo} Addition of the phrase that ashestosis clinically appeared to be milder then
silicosis.

The report, tls altered, was published in 1935. It was misl eading, and intentionally 80,
because it conveyed the isicorrect Propositions that asbestosis was a Jess serious disease process
than silicosis and that higher levels of asbestos dust could be tolerated without contracting
diseases than was the case for ailiea dust. :

234, MET LIFE had a close relationship with I-M. It invested money in J-M. It
provided group health and life insurance to TM. MET LIFE IN 1934 agreed to supply
industrial hygiene services to J-M, including dust counts, training employees to monitor dust
levels, examining employees, and recommending protective equipment. MET LIFE and Lanza
were viewed ag experts on industrial dusts.

235_ In 1933, MET LIFE through Lanza issued the following advices to J-M:

(a) Disagreeing with the recommendation of a J-M plant physician, MET LIFE
advised against waming workers of the fact that asbestos dust is hazardous to
their health, basing its advice in view of the extraordinary legal situation;

(b) ‘When the ptant physician judged the best disposition of an employee with
eebestosis Was to remove him from the dust, MET LIFE advised instead that
disposition should depend on his age, nature of work and other factors and to
leave him alone if he is oid and showing no disobility, for, MBT LIFE stated,
economic and production factors must be balanced against medical factors.

236. J-M followed the MET LIFE advices and did nol warn its workers, including
plaintiff, of the hazards of asbestos dust, and J-M also intentionally refrained from notifying
workers of their disease. ,

237. In 1936, MET LIFE, J-M and others founded the Air Hygiene Foundation
CAHF*, One of the AHF purposes was to develop standards for dust levets that would serve
as a defense in lawsuits and workers’ compensation claims.

238. MET LIFE funded partially another study that tentatively scoommendad in 1938 a
TLY for asbestos dust of Smpecf, the same as for silica dust. MET LIFE was aware of data

Hua | 9346/ pEMP-SARCHD.

AMENDED COMPLAINT FOR PERSONAL TOURED ‘LOSS OF CONSORTIOM- ASBESTOS _Sof os th ome

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from its own, published reports that showed that level was too high for asbestos dust. MET
LIFE nonetheless promoted that TLV as proper.

239. In tune 1947, the Industrial Hygiene Foundation (“IHF”) which succeeded to the
AHF, issued a report of studies by Dr. Hemeon of US. asbestos plants, including a J-M plant.
‘That report showed that workers exposed fo less than the recommended maximum levels of
dust were developing disease. MET LIFE was a member of the THF and Lanza was ov its
medical committee. The Herheon report, which was supplied to J-M and other Owners, never
was published. ,

240. Tn 19346, J-M and other asbestos companies agreed with a leading, medical research
facility, Saranac Laboratories, that Saranac would research asbestos disease, but J-M and the
others retamed contrat aver publication of the results. In 1943 Saranac’s Dr. Leroy Gardner, in
charge of the research, sent a draft fo J-M that revealed that $1.8% of mice exposed ta long
fiber asbestos contracted cancer. ,

241. Dr. Gardner died in 1946. J-M and other companies wanted parts of the Saranac
results published and enlisted the assistance of MET LIFE’s Lanza. J-M and other cormpanies
decided that Saranac’s findings of cancer caused by asbestos in rice must be deleted, as well as
Saranac’s critique of existing dust standards. Lanza divected Saranac to delete the offending
materials. Saranae did 0, and the altered report was published in 195] by Saranac’s Dr.
Vorwald, in the 444 Archives of Industrial Hygiene.

242, Lanza left MET LIFE at the end of 1948, anc took 4 position at New York
University, funded by MET LIFE. He continued to misrepresent that asbestos does not cauge
cancer into the 1950s.” :

243, The IMF (formerly AHF), of which MET LIFE was a member and MET LIFE
official was on its medical committee, through Drs. Brava and Truan conducted a study of
Canadien miners. The onginal report, ii $957, found an increased incidence of lung cancer in
persons exposed to asbestos. The sponsors, including J-M, caused those findings to be stricken,
and the reporl published in 1958 coniained the false conclusion that asbestos exposute alone

did not increase the risk of long cancer.CO PAA & ew

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244. The false and misleading reports that a link between asbestos exposure and cancer
was not proven influenced the TLV, for if a substance causes cancer the TLV must be very low
or Zero.

245. J-M not later than 1933 was inficting asbestos dust on its workers in its plants
knowing that the dust was hazardous and was causing workers to contract disease that could
and would disable and kill them, "As MET LIFE advised, J-M did not wam its workers of the
hazard, J-M committed battery on workers in iis plants, including plaintiff, by that conduct,

246. MET LIFE knew that J-M’s conduct constituted a breach of its duties fo its
workers. MET LIFE gave substantial assistance to J-M in committing batteries on its workers, .
including plaintiff, through MET LIFE’s conduct described above, including by: .

(a) —_ Affinmatively urging J-M nol to warn workers of the hazards of asbestos dual, in
view of the extraordinary legal situation, such that J-M did not warn its workers,
inchiding plaintiit:

(b) Deleting the findings of its own draft report that the allowable limits for asbestos
dust should be iess than those for silica dust, and promoting a false and unsafe
TLY which specified maximum levels of silica dust, and promoting a false and
unsafe TLV which specified maximum levels of dust for workers, including
plaintiff, which MET LIFE knew was wrong through its own studies;

(©). Advising J-M to keep certain workers continuing to work at dosty areas in the
plant even after J-M was aware that their Jungs showed asbestos-induced
changes, lest other workers including plaintiff be alerted to the dangers of
working in the dust.

WHEREFORE, plaintiff prays judgment as is hereinafter set for

6. Plaintiffs do not make a claim for either false representation or punitive damages

against any named defendant herein, except as against defendants HANSON PERMANENTE
CEMENT, INC, FORMERLY KNOWN AS KAISER CEMENT CORPORATION, CARILL
CONSTRUCTION SERVICES, INC., CAHILL CONTRACTORS, INC., and CAHILL
CONSTRUCTION CO., INC.

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7 Plaintiff's claims against TEMPORARY PLANT CLEANERS, INC. arise from
its employees’ removal and disturbance of existing and newly applied asbestoe-containing
thermal insulation and gaskets during installation, remodel and repair work in close proximity
to plaintiff ROBERT ROSS, fo wit: Tidewater Associated Oil, Avon, CA., 1959-1965
G weeks), 1961-1962 (Approx 1 month); Union Oil, Rodeo/Oleum, CA,, 8/1960-7/1961,
10/1961 -6/1 962, 5/1965-12/1966 (3 weeks, on and off), 1973-1977 fon and off for approx.

2 months), 1/1974-3/1974 (3 weeks, on and aff), UL9F7-2/1977 (2 months); Shell Oil, '
Martinez, (CA., 7/1961-10/1961, 7/1962-5/1965 (6 weeks, on and off), 7/196L-10/] 96 L, 7/1962-
5/1965 (2 weeks, on and off}, F/1961-10/1961, 7/1962- 12/1962 (3 weeks, on and off), 8/L960-
FAS61, 10/1961-6/1962, 5/1965-12/1968 (2 weeks, on and off}, 1973-1977: Standard Oi,
Richmond, CA, ‘1/1961-10/1961, 71962-5/1965 (3 weeks, on and off}, 10/1973-12/1973,
3/1974-3/1976, 10/1976-2/1977 (4months, ov and off}, 1974 - 1977; Phillips Petroleuns
Company/ Lion Oil Company, Avon, CA., 10/1973-12/1973, 3/1974-3/1976, 10/1976-2/1977
(1 month, on and eff; Chevron Chemical (aka Ortho Plant}, Richmond, CA., /1974-3/1974-

@Q weeks, on and off) In addition, plaintiffe’ claims arise from TEMPORARY PLANT
CLEANERS, INC. supplying asbestos-containing gaskets and asbestos-containing thermal

insulation for those same jobsites.

&. Plaintiff's claims against COLLINS BLECTRICAL COMPANY, INC.
arise from its employees’ disturbance of existing and newly applied asbestos-containing
fireproofing and thermal insulation during their installation, remodel and repair work in cloge
proximity fo plaintiff ROBERT ROSS, to wit: Mare Ietand Nayal Shipyard, Vallejo, CA., 1959
(on and off for 3 months), 10/L973-12/1973, 3/1974-3/1976, 10/1976-2/1977 (1 month, on and
off}, 1977 {3 to 4 weeks, on and off}; Veterans Administration Hospital, Palo Alte, CA, 1960 -
1962, 1965 - 1966, 1977 (approx. 2 months); San Francisco Intemational Airport, San
Francisco, CA., 81960-71961, 10/1961-6/1962, 5/1965-12/1966, 1/1967-3/1972, 1979
(2 weeks, on and off); San Francisco State University, San Francisco, CA., 8/1960-6/1962,
5/1965-12/1966, 1/1967-3/1972, 1983 (April) (2 weeks, on-and off}; Children’s Hospital,
California Street, San Francisco, CA., 1960-1962, 1965-1966, 1967 - 1972, 1977 - 1981 fonOo WA wm om Bo

10

and off); Firestone Tire & Rubber Salinas, CA., 8/1 360-7/1963, 10/1961-6/1962, 5f1965-
12/1966 (3-4 weeks); IBM, Cottle Road, San Jose, CA., 1960- 1962, 1965 - 1966, 1967-1972,
1977-1981; Lockheed, Sunnyvale, CA., 1960 « 1962, 1965 - 1966, 1967-1972, 1977-1981;
University of Califomia, Berkeley, CA., 8/1960-7/1961, 10/1 961 -6/1962, 5/1965-12/1 966,
1/1967-3/1972, 4/1977-3/1981; UC Berkeley (Central Steam Plant), Berkeley, ca. 1960 -
1962, 1965 - 1966 (1 week), Standard Oil, Richmond, CA., 7/1901-101962, 7/1962-5/1965

(3 weeks, on and off}, LO/1973-12/1973, 3/1974-3/1976, 10/1996-2/1977 (4. months, on and
off), 1974 - 1977; University of California, Rerkeley, CA. (Boiler Plant), 7/1961-10/1961,
771962-5/1 965 (3 weeks}, Sacramento Convention Center, Sacramento, CA, (16! St), 47L972-
9/1973 (3 months, on and off); Aerajet-General, Rancho Cordova, CA, 41972-1973 (18
working days); Bay View Housing Development (Hunters Point), San Francisco, CA., 1978

(2 weeks, on and off, University of California, Berkeley, CA. (Warren Halil, 1979 (2 weeks):
UC Berkeley, Berkeley, CA.,1980 - 1989,; 1990 - 1991, 1993, 1992-1993; University of
California, Berkeley, CA. (Hearst Gym), 1981 (2 weeks, on and off); University of Califomia,
Berkeley, CA, (Gilman Hall}, 1981 (1 week, on and off); University of California, Berkeley,
CA. {Life Science Building}, 1987 (114 weeks, on arid off); Mare Island Naval Shipyard,
Vallejo, CA. (Building 503); 1981 (4 weeks, on and off}; St. Francis Hospital, San Francisco,
CA., 1982 (2 weeks, on and off), 1984 (L week, on and aff); University of California (Dwight
Derby School for the Deaf), Berkeley, CA., 1983 (1 week, on aud off); University of California
(Hammon Gym), Berkeley, CA., 1983 (Oct.-Dec,)} (3 weeks, on and off); University of
Californa (Rabbins Hall}, Berkeley, CA., 1983 (Qct.-Dec,) (2 weeks, on and off); Mare Island
Naval Shipyard, Building 71, Vallejo, CA. 1984 (2 months, on and off}; and Mare Island

Naval Shipyard (Building 70}, Vallejo, CA., 1985 (2 weeks, om and off).

7. With regard to CAHILL. CONSTRUCTION SERVICES, INC., CAHILL
CONTRACTORS, INC., CAHILL CONSTRUCTION CO., INC., hereinafter “CAHILL,”
plaintiffs allege that it acted with malice, oppression or fraud, in conscious disregard of the

tights or safety of plaintiff's and other persons similarly situated.

ff1 Even though CAHLLL was undex mandalory duties to protect workers on its job sites
and CAHILL adnuits that, at a CAMILL-mia job sife, there ts nothing more important than
safety,

. No CAHILL senior execntive, prior fo the 1980s, did anything respecting the
rights and safety of any worker with regard to asbestos;

- CABILL cannot identify ay CAHILL job superintendent in the 1970s or 1980s
that were known to have read or reviewed the California General Safety Orders or had
any idea what they say or prescribe;

- CAHILL tock no precautions at any construction site regarding asbestos, priar
ta the 1980s;

~ CAHILL has sever prepared any written communications regarding the dyngers
of asbestos,

- CAHILL never posted any notices with regard (o asbestos at any of its job sites,
il prior to the 1980s;

- CAHILL never employed any laborers wlio used any special gqetpment to clean
up asbestos-laden debris al any CAHILL-nin job site, prior to the 1980s,

- CAHILL did not supply or njake available to any of ils employees or
14 subcentractors any special sapipment fer cleaning up asbestos-laden debris; nov did it
mandate the use of such epecial equipment; :

5

- _ CAHILL took ap steps to employ any housekeeping steps to eliminate,
16 Tinimize or control workers’ exposure to ashestos at any (L-Tun job site priot to
u the 1580s;

- CAHILL never provided any change rooms, showers, baths or lavatories or
18 > similar facility(ies) to address workers’ exposure to asbestos at any CAHILL run job
site prior to the 1980s;

-° CAHILL never conducted any testing for airborne asbestos al any CAHILL-mun
20 job site prior ta the 1980s; .

|
|
|

21 - CABLLL bas never refused to allow any subcontractor to deliver to or use
asbestos-containing products at any CAHTLL-run job site; :

- CARILL lias never had policy to place any warnings regarding asbestos al.
93 buildings a policy to place any 28 regarding any

24 - CAHILL has made no attempt ta determine how many people is has exposed to

asbestos, ‘
25
26] if
27 BAN1 Accordingly, plaintiffs are entitled to recover punitive damages from CAHILL.
Dated: a BRAYTON+PURCELL LLP

By:

“David R. Donadio_
Attorneys far Plaintiffs

5

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EXHIB

LIST OF DEFENDAN

C.C, MOORE & CO. ENGINEERS.
ASSOCIATED INSULATION OF CALIFORNIA

FLUOR CORPORATION

HANSON PERMANENTE CEMENT, INC, FORMERLY KNOWN AS KAISER CEMENT CORPORATION
METROPOLITAN LIFE INSURANCE COMPANY

OAKFABCO, INC,

SLAKEY BROTHERS, INC.

BAYER CROPSCIENCE INC. .

GRAYBAR ELECTRIC COMPANY, INC.

CSK AUTO, INC.

THE GOODYEAR TIRE & RUBBER COMPANY

JOBNSON CONTROLS, INC.

PHARMACIA CORPORATION, WHICH WILL DG BUSINESS IN CALIFORNIA AS FHARMACIA PHARMACEUTICAL CORPORATION
H& CINVESTMENT ASSOCIATES, INC,

FOLEY ELECTRIC CO.

CINCINNATI VALVE COMPANY

C&R PLASTERING, INC,

TUTTLE AND BAILEY CORP

LAUB SHEET METAL WORKS

WILLARD ELECTRIC

WESTBURNE SUPPLY, INC.

COMMAIR MECHANICAL SERVICES

ACCO ENGINEERED SYSTEMS, INC
CONSOLIDATED INSULATION, INC.

WRIGHT SCHUCHART HARBOR COMPANY
ALLIED FIRE PROTECTION

PRIBUSS ENGINEERING, INC.

ADVANCE MECHANICAL CONTRACTORS, INC.
COSCO FIRB PROTECTION, INC.

CAHILL CONSTRUCTION SERVICES, INC. ”
DORN REFRIGERATION AND AIR CONDITIONING
MARINE ENGINEERING AND SUPPLY COMPANY
YAN-MULDBR SHEET METAL, INC,

IMPERIAL PLASTERING & DRYWALL

GENERAL MILLS, INC.

KENTILE FLOORS, INC,

DOMCO PRODUCTS TENAS, L.P,

FULLER FLOORS

ROBERT MAGEE

MARSHCO AUTO PARTS, INC.

EMIL J. WEBER ELECTRIC CO.

THE W.W. HENRY COMPANY

TEMPORARY PLANT CLEANERS, INC.

D. ZELINSEY & SONS, INC,

ALBAY CONSTRUCTION COMPANY

PACIFIC MECHANICAL CORPORATION . .

WALNUT CREEK SHER METAL, FURNACE & ALR CONDITIONING, INC,

PARKER INSULATION CONTRACTING & SUPPLY CO, INC. :
BX. FME, INC. (FEA FISCHBACH AND MOORE ELECTRIC, INC} :

GIAMPOLINI & CO

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27

WEBOOR BUILDERS, INC.

JONES PLASTERING COMPANY

LW. MCCLENABAN COMPANY, INC.

SCOTT CO, OF CALIPORNIA

BARNES CONSTRUCTION CO.

BALLIBT EROS, CONSTRLICTION CORPORATION
CLAUSEN-PATTEN, INC.

A. TEICHERT & SON, INC.

CRITCHFIELD MECHANICAL, INC.

JOSEPH BRUNG SHEET METAL CO, INC.
BELL PRODUCTS INC. .
ALLEN-SIMMONS HEATING & SHEET METAL COMPANY INC,
ROLLIE R. FRENCH, INC.

HENRY ©. ABCK COMPANY

INSULATION SPECIALTIES, INC.

TEMPER INSULATION

RED TOP ELUCTRIC TCO. EMERYVILLE, INC.
SFL,INC. .

ALLSBERRY MECHANICAL CORPORATION
MIDSTATE MECHANICAL, INC.

ROUNTREE PLUMBING & HEATING INC.
COLLINS ELECTRICAL COMPANY, INC, .
HAROLD BEASLEY PLUMBING AND HEATING, INC,
SUGDEN ENGINEERING CO.

LONE STAR INDUSTRIES, INC.

TAMES A. NELSON CO, INC.

MICHAEL BROTHERS

MACK CONSTRUCTION CO.

MATCHELL BROS. TRUCK LINES, INC.

AIR SYSTEMS MECHANICAL CONTRACTOR
A& K HEATING COMPANY, INC
ADVANCED MECHANICAL

PACIFIC FIREPROOFING

MATTOCK CONSTRUCTION COMPANY
HARRY LEE PLUMBING & HEATING

‘W.C. THOMASON

CLIMATE AUR, INC.

ALLIED SPRINKLER COMPANY, INC,
DELUCCHI SHEET METAL WORKS
MCCLURE ELECTRIC, INC.

DPR CONSTRUCTION

CIR PLASTERING

COSCO SPRINKLER

ROLLINS CONSTRUCTION

BANNER DRYWALL & PAINTING CO. JING,
ORTHO-CRAFT

DONGVAN' CONSTRUCTION

BETA MECHANICAL CONTRACTORS, LIMITED
PRIBUSS ENGINEERING

DILLAND SEDERBERG PLUMBING

ERWIN MECHANICAL ING.

CLIMATE CONTROL CO,, INC,

{Molaro Lon danghh an ream

RY ADORN REFRIGERATION

CASTRO CONSTRUC! TION, INC,

VAN MULDER SHEETMETAL

W.C. THOMPSON

CALIFORNIA DRYWALL CO.

BRAGG INVESTMENT COMPANY, INC,
FAIRMONT HOTEL COMPANY :
TEXACO, INC. :
D.W. NICHOLSON CORPORATION ;
SWINERTON BUILDERS

ANDERSON, ROWE & BUCKLEY, INC.

CABILL CONTRACTORS, INC.

CUPBRTING ELECTRIC, INC.

J.T. THORPE & SON, INC.

MALM METAL PRODUCTS, iNC.

PERINT CORPORATION

RAYMOND INTERIOR SYSTEMS-NORTH

SJ. AMGRO&S0 CONSTRUCTION CG, INC. (formerly saed as DOES 14 and 1014)
DURO DYNE CORPORATION (formerly sued as DOE 13 and 1013) .
CAHILL QUHSTRUCTION CO, 2NIC. (formerly soed as DOES 12 and 1012) . :
and DOES 1-8500, :

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OSS OF CONSORTIUM - ASBESTOS”EXHIBIT ADo oe Ww aA wm Rw Mm

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EXHIBIT A

Plaintiffs exposure to asbestos and asbestos-containing products occurred at various

locations both inside and outside the State of California, inciuding but not limited to:

Employer

Philip Car
Cincinnati, OH

Coast Insulating Products
Los Angeles, CA.

Univerga} Insulation
520 6 Avenue
Menlo Park, CA

Universal Insulation
520 6" Aveme
Menlo Park, CA

ACES
Lancaster, PA.

Western Asbestos

Western Asbestos
3150 3” Street
San Francisca, CA.

Western Asbestos
3150 3" Street :
San Franeiseo, CA

Heat, Frost & Asbestos
Workers Union
Local 16

Western Asbestos

3150 3" Street
San Francisco, CA

AY

Location of
Exposure
Warehouse

101 Willams

$an Franciseo, CA

Jack Tar Hotel

(aka Cathedral Hill Hotel)

L1H Van Wess
_ San Francisco, CA

Fertilizer Plant
Helin, CA

Mare Island Naval
Shipyard
Vallejo, CA

Hewlett Packard
Menlo Park, CA

UC Berkeley (Central
Steam Plant, :
Berkeley, CA,

Tidewater Associated Oil
Avon, CA

PG&E Powerhouse
Pittsburg, CA

Queen of the Valley
Hospital

Napa, CA
Marilime Unicon
Mission Street

San Francisco, CA

Job Title
Warehouseman

Insulator
{Apprentice}

Insulator |
(Apprentice) «

Insulator
{Apprentice}

Insulator

“Insulator

Insulator

Insulator

‘Tnsulator

McKinleyville High Sehoot Insulator

Mekinleyville, €.

Ww

Exposure
Dates

2/1 959-8/1959;

12/1959-1/1960
(2 week)

$/1959-9/1959
(approx. 5 wks)

1959 (on and off
fer 3 months)

1959 (1-2 weeks)

1960-1962;
1965-1966
(1 week)

1959-1965
(3 weeks)

1/1960-7/1966

F/1960 (3 weeks)

Approx. 1960
(Tday}

7/1961 -10/1961;
71962-51965
(3% weeks, o
and off} .

EXHIBIT A

TiRD AMENDED COMPLAINT FOR PERSONAL INJURY AND LOS OF CONSORTIUM — ASBESTOS —Emplover

Westem Asbeslas
3150 3" Street
San Francisco, CA

Westem Asbestos
3150 3" Street
San Francisca, CA

Western Asbestos
3150 3" Street
San Francisoa, CA

Westem Asbestos
3150 3" Street
San Francisco, CA

Wesiem Asbestos
3150 3" Street
San Francisco, CA

Westera Asbestos
3150 3" Street
San Francisco, CA

Westem Asbestos
3150 3” Street
San Francisco, CA

Wesatem Asbestos
3150 3" Street
San Francisco, CA

Westem Asbestos
3150 3” Street
San Francisco, CA

Westem Asbestas
3150 3" Street
San Francisco, CA

Westem Asbestos
3150 3” Street
San Francisco, CA

af

EXAIBIT A (cont'd,

Location of
Exposure

Calaveras Cement Flant
Redding, CA

Tidewater Oil Company
Avon, CA

Monsanto Chemical
Avorn, CA

PG&E Powerhouse
Pittsburg, CA

Colgate Palmolive
Berkeley, CA

Gerber Foods
Oakland, CA

Ampex Systems Corp-
and City, CA

Pacific Bell Telephone
San Francisco, CA

PG&E
Antioch, CA

Hercules Powder
Hereules, CA

Georgia Pacific
Arcata, CA

Job Title

Insulator
Insulator
Insulator
Insulator

Insulator
Tnsnlator

Ynsulator
Insulator
Insulator

Insulator

Insulator

Expose
Dates

1961-1965
(] month}

196] -1962
(Approx 1 month)

1961-65 (Approx
1 month)

196)-1965
(3 months)

7/1961-10/1961;
TH962-541 965
(5 weeks, on and
off}

F1961-10/1961;
TA962-5/1 968
G weeks, on and
oC.

1961-1962 (2-3
weeks, on and off)

1941-1965
(3 months}

1961-1965
(5-6 months)

F1961-10/1961;
H/1962-5/1965
(1 month, on and
off)

71961 -10/1961;
W982 -5/1965
(2-3 months, on
and off)

EXHIBIT A

EESONAL TARRY AND LOSS OF CONSORTIUM - ASHESTOS

THIRD AMENDED Col
TH ED COMPLAINT FOR PEmployer

Pe

Westen Asbestos
3150 3" Street
San Francisco, CA

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EXHIBIT A (cont'd)

Location of

Exposure

Bethlehem Steel
Shipbuilding

San Francisco, CA.
Triple A Machine Shop
(Pier 64)

San Francisco, CA

Willamette Shipyard
Richmond, CA

Pacific Ship Repair
ier 36) ?
an Francisco, CA

Todd Shipyard
Oakland, CA

Matson Navigation
(Pier 30) "
San Francisco, CA

aval Air Station
“Alameda, CA,

{QSEEH P. KENNELS
{EL-850)

HEVENNE
(T-AG-174

HAWAIIAN P: R

TWINING
(DD-540}

GENERAL W.A MANN
(AP-112

Job Title

Insulator

Exposure
Dates

H961-L0/1961;
TOG 2-S/1 965

{on avid off for
‘approx. | week
each time)

EXHIBIT Awoo Wm mh eB WN

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Employer

Westem Asbestos
3150 3° Street
San Francisca, CA (cont’d.)

Westem Ashestas
3150 3" Street
San Francisco, CA

Westem Asbestos
3150 3" Street
San Francisco, CA

Westem Ashostos
3150 3° Street
San Francisco, CA

Westem Asbestas
3150 3° Street
San Francisco, CA

‘Westem Asbestos
3150 3" Street

| San Francisca, CA

HY

EXHIBIT A (cont'd.)

Location al”
Exposure

Bethlehem Steel
Shipbuilding
San Francisco, CA

MONTEREY,
(9sz)

BLAND
(APA-134)

PONTCHARTRAIN
(WEG-70)

CALIFORNIAN
(1946)

AMERICAN ROBIN
(1843) -

ROSE KNOT
(1945)

HAWAIIAN
(1946)

Grace Cathedral
San Francisco, CA

Westorn Asbestos Pad
Shop, 3% Avenue and
Amny, San Francisco, CA

PG&E Nuclear
Powerhouse.
Humboldt County
Eureka, CA,

PG&E
San Francisco, CA
{Potrero Station)

Dow Chemical
Pittsburg, CA

Job ‘Title

Insulator

Tnsulator

Insulator

Yosulator

Insulator

Insulator

Exposure.
Dates

7/1961-10/1 962;
W1962-5/1965

1963-1965

7/1961-10/1961;
7/1962-5/1965
(2 weeks, on and
off}

71 961-10/1961;
7#1962-5/1965
{2-3 days, on and
off)

T1963-10/1964;
1962-12/1 962
{5 months, on and

off}

7/1961-10/1961;
7/1962-5/1965
(2 ta 3 weeks, on
and off}

*1/1961-10/1961;
W1962-5/1965
(1 month, on and
off}

EXHIBIT AEXHIBIT C‘¥ & CORDERY, LLP

EeT

Law oFsices:

IMAI, TADLOCK, KEENE

Bruce Imai, Bsq. (Bar No. 053800)
Tina Yim, Esq. (Bar No. 232597)

IMAI, TADLOCK, KEENEY & CORDERY, LLP 1
100 BUSH STREET, SUITE 1300 , ELECTRONICALLY
SAN FRANCISCO, CA 94104-3915 FILED
Telephone: (415) 675-7000 Superior Court of California,
Facsimile: (415) 675-7008 . » County af San Francisco
A fos Def FEB 02 2011
ttomeys for Defendant Clerk of the Court
COMMAIR MECHANICAL SERVICES BY: ANNIE PASCUAL
. Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
ROBERT ROSS and JEAN ROSS, CASE NO.: CGC-10-275731
Plaintiffs, (ASBESTOS)
Vv. COMMAIR MECHANICAL SERVICES'S
ANSWER TO COMPLAINT FOR
C.C. MOORE ANP CO. ENGINEERS; PERSONAL INJURY AND LOSS OF
Defendants, as Reflected on Exhibit 1 attached | CONSORTIUM - ASBESTOS
to the Summary Complaint herein; and DOES
1-8500, Complaint Filed: Decemtber 17, 2010
Defendants.

COMES NOW defendant COMMAIR MECHANICAL SERVICES, for itself alone, and
in answer to Plaintiffs” unverified Complaint on file hetem, and to each and every cause of action
thereof, and by virtue of the provisions of CCP § 431.30, now files its general denial to said
complaint and to each and every cause of action thereof, and im answer to all the allegations
thereof, denies that the Plaintiffs have been damaged in any sum or sums whatsoever, or at all, by
any act of omission of this answering defendant.

AND AS FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Complaint and each cause of action therein, fails ta state
facts sufficient fo constitute a cause of action.

AND AS FOR A SECOND, SEPARATE ANP DISTINCT AFFIRMATIVE DEFENSE,

this answering defendant alleges that Plaintiffs are barred from recovery by the applicable state

4-
COMMAIR MBCHANICAL SERVICES S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS_

of limitations, including but not limited to California Code of Civil Procedute Sections 319, 320,
337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and Califomia Commercial Code Sections
2725(1) and 2725(2). :

AND AS FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiffs were themselves negligent and careless in and

about the matters and events alleged in the Complaint, and said negligence proximately

contributed to the alleged damages, if any there were, and as a result thereof, the principles of

equitable comparative negligence must be applied to bar Plaintiffs’ action.

oc m8 Ss A AW fF BD NW

AND AS FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,

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this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint

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by Plaintiffs, if any there were, were caused by the carelessness and negligence on the part of the :

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remaining defendants in that said carelessness and negligence on the part of said remaining

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defendants proximately contributed to the happening of the subject event and the injuries, loss or

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KEENRY 4 CORDERY,
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SAW FEANCIECG, CA p4lo4

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(418) 61547009

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damages alleged by the Plaintiffs herein, and thai any judgment rendered against this answering : |
defendant be reduced or nullified to the extent of such negligence and carelessness on the part of
|

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the remaining defendants as aforesaid.

17 AND AS POR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this

IMAI, TADLOCK,

18 || answering defendant alleges that the Plaintiffs’ injuries and damages which may have been

19}/ sustained as a result of events mentioned in the Complaint, if any there were, were proximately
20 || caused by the carelessness and negligence of Plaintiffs and the remaining defendants, and that the
21]| respective negligencé of each said party to this suit ought to be.equitably apportioned among the

22 || parties hereto.
23 » AND AS FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENS#, |
24 || this answering defendant alleges that at the time of the accurtence of the matters mentioned in the
25 || Plaintiffs’ Complaint, the Plaintiffs themselves had knowledge of those matters alleged in the

26 }| Complaint and Plaintiffs did, with said knowledge, voluntarily and of his/her free will and act,

27 || place themselves in an unsafe and dangerous position and by reason thercof, Plaintiffs did assume
28 || the risk and all xisks ordinarily incident thereto.

2:
COMMAIR MECHANICAL SERVICES 'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS

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|IMAI, TADLGCK, KEENEY & CORDERY, LLP

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(415) 695-7000

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AND AS FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products referred to in the Complaint were
not used in a safe and normal manner or in the manner in which they were intended to be used,
and that such misuse proximately contributed to the injuries to Plaintiffs and the damages and
losses resulting therefrom, if ary there were, and bar Plaintiffs’ recovery herein.

AND AS FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEfENSE,

this answering defendant alleges that prior to and at the time referred to in Plaintiffs’ Complaint,
the products referred to in the Complaint were abused, altered, modified, or changed in a manner
that was not reasonably foreseeable, that such abuse, modification, alteration, or change
proximately contributed to the injuries to Plaintiffs and the damages and losses resulting
thereftom, if any there were, and bar Plaintiffs’ recovery herein.

AND AS FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times herein mentioned, Plaintiffs weve in the course
and scope of their employment and that the injuries sustained by Plaintiffs, if any there were,
were caused or contributed to by the carelessness and negligence of Plaintiffs’ employers,
entitling this answering defendant to a set-off in an amount equal to the extent of payments made
by said employers’ workers’ compensation carrier.

AND AS FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiffs’ employers were negligent and careless in and
about the matters alleged in the Complaint and proximately contributed to the injuries and
damages, if any there were, sustained by Plaintiffs; that by reason of the premises said employers
and their workers’ compensation cartiers are barred from recovery of any paynients heretofore or
hereafter made to Plaintiffs pursuant to the workers’ compensation laws of the State of California
under the doctrine of Witty. Jackson, 57 Cal. 2d 57.

AND AS FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ Complaint herein is barred by Labor
Code §3600, etseg,

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3.

COMMAIR MECHANICAL SERVICES'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND:
LOSS OF CONSORTIUM - ASBESTOSLAW OEFICES

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AND AS FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ Complaint herein is barred by the
Doctrine of Laches.

AND.AS FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant
which are alleged to have caused injury to Plaintiffs were manufactured in compliance with and
supplied pursuant to mandatory government specifications which fequixed the use of asbestos.
Accordingly, defendant is immune ftom liability for any damages suffered by Plaintiffs as a
consequence of exposure to asbestos contained in such products.

AND AS FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Answering Defendant alleges that its compliance with all governmental standards
is a complete defense to Plaintiff's action.

AND AS FOR 4 FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs failed and neglected to use reasonable
care to protect themselves and te minimize the losses and damages complained of, if any there
were.

AND AS FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs are barred from asserting any claim
based on breach of warranty by reason of their failure to fulfill the conditions of warranties
alleged in the Complaint in the event such alleged warranties are proved at trial.

AND AS FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiffs within a reasonable time failed ta give

notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file
herein in the manner and form prescribed by law.

, AND AS FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that there was no privity or other legal telationship
between this answering defendant and Plaintiffs herein sufficient to entitle Plaintiffs to any legal
relief by said defendant.

4

COMMAIR MECHANICAL SERVICES’S ANSWER TQ COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM : ASBESTOSLAW OTEICES
IMAL, TADLOCK, KEENEY & CORDERY, LLP

‘BUIE 1300

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AND AS FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is
Prohibited because it would deprive defendant of its property without due process of law mder
the 14th Amendment of the United States Constitution and under the California Constitution,

See U.S. Constitution, Amendment XIV, §1;-Cal. Constitution, Art. I, §7(a).

AND AS FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages is barred
by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment. VI:

Califomia Constitution, Art J, §17.

AND AS FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages is barred
by the Constitutional Prohibition against impairing the obligation of contracts. See U.S.
Constitution, Art. 1, §§,C1.1, See California Constitution, Art. I, §9.

AND AS FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages
pursuant to California law herein constitutes 2 violation of equal protection prohibited by the
United States Constitution and the Constitution of the State of California and therefore fails to
mnake a claim upon which relief can be granted.

AND AS FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the complaint on file herein fails to state facts
sufficient to constitute a cause of action for punitive damages.

AND AS FOR. A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages must
consider the degree of reprehensibility of defendant's conduct, the disparity between the
compensatory damages and punitive damages and the difference between punitive damages, the
tatio of actual harm suffered by the Plaintiffs to the amount of punitive damages and tha civil
sanctions that could or would be imposed for comparable conduct. These considerations were
outlined by the U.S. Supreme Court in BMW of North America v, Gore (1996) 517 US. 559, and

5.
COMMAIR MECHANICAL SERVICES'8 ANSWER TO COMELAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW OFNICES
SUT ISab

IMAL, TADLOCK, KEBNEY & CORDERY, LLP

(415) 675-7000

Oo 29 WA mW & &B Me

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SQ aewh& GD & 2 Ss

18

Cooper Industries Inc. v. Leatherman Tool Group, Inc. (2001) 532 US. 424, and State Fatm Mut.

Auto, Ins. Co. y. Campbell (2003) 538 U.S. 408,

AND AS FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, to the extent Plaintiffs may be able to prove
their allegations conceming liability, injuries and damages, which are specifically denied, they
were the result of infervening acts of superseding negligence on the part of a person or persons
over wham this defendant had neither control nor the right of control.

AND AS FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs are barred from asserting any causes

of action by die Doctrine of Waiver.

AND AS FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE -

DEFENSE, this answering defendant alleges that Plaintiffs are estopped from asserting any
causes of action by his conduct. :

AND AS FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs have failed to join necessary and
indispensable parties,

AND AS FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE.
DEFENSE, this answering defendant alleges that Plaintiffs have improperly joined or misjoined it
and other parties to this action.

AND AS FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe
or defective in any manner are preempted by federal law.

AND AS FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products in question were used after
knowledge of the defect, if any, thal existed therein.

AND AS FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if, Plaintifis” claims were already Iitigated and
resolved in any prior action, Plaintiffs’ claims herein are barred based on the primary right and reg

-6-

COMMAIR. MECHANICAL SERVICHS'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
‘LOSS OF CONSORTIUM - ASBESTOS, LLP

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judicata doctrines which prohibit splitting a single cause of action into successive suits, and

seeking new recovery far injuries for which the Plaintiffs were previously compensated by

|| alleged joint tortfeasors,

AND AS FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claims are barred by the primary
tight doctrine as there is another action pending between the same parties on the same cause of
action.

AND AS FOR A THIRTY-FGURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claims are barted by the principles of
res judicata.

AND AS FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE:
DEFENSE, this answering defendant alleges that the substantive law of Plaintiffs domicile or a
junsdiction other than Califomia, is applicable,

AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, at all times herein pertinent, Plaintiffs and/or
Plaintiffs’ employers were sophisticated users of the subject products and that defendant had no
duty to wam about dangers, risk, or harm of which the sophisticated users were already aware o