Answer: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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William M. Hake, Esq. (State Bar No, 110956)
Melissa E. Macfarlane. 7 (State Bar No. 239811)

Rachael A. Buckman, Esq. (State Bar No. 263224} ELECTRONICALLY

COOLEY MANION JONES HAKE KUROWSKI CTRONIC

LLP FILED

201 Spear Street, 18th Floor ‘Superior Court of California,

San Francisco, CA 94105 County of San Francisco

Tel: 41S) $12-4381 APR 15 2011

Fax: (415) 512-6791 Clerk of the Court
BY: ALISON AGBAY

Attorneys for Defendant Deputy Clerk

EMIL J. WEBER ELECTRIC CO.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, Case No, CGC-10-275731

DEFENDANT EMIL J. WEBER ELECTRIC
CO.’S ANSWER TO FIRST AMENDED

COMPLAINT FOR PERSONAL INJURY AND |
v LOSS OF CONSORTIUM- ASBESTOS

C.C. MOORE & CO. ENGINGEERS;
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint herein;
and DOES 1-8500.

Plaintiffs,

Defendants.

COMES NOW, Defendant, EMIL J WEBER ELECTRIC CO., (hereinafter referred to as
“answering defendant”), and for itself alone, and in answer to the unverified First Amended
Complaint of Plaintiff herein and as amended in the future, allege as follows.

“Plaintiff” or “Plaintiffs”, as used in this Answer, means cach Plaintiff individually as
weil as collectively and, by definition, incorporates the words “and each.ofthem.”

GENERAL DENIAL

Pursuant to the provisions of California Code of Civil Procedure § 431.30, this answering
defendant denies each, every and all of the allegations of the unverified First Amended Complaint
and each and every cause of action contained therein, and the. whole thereof, and denies that

Plaintiff has sustained. damages in the sum or:sums alleged, in any other sum or sums whatsoever,

DEFENDANT

FOR PERS!

a WEBER | ENJURY AND‘or at ail.

- FIRST AFFIRMATIVE DEFENSE

/ (Failure to Siatea Cause-of Action). ~
Answering defendant alleges that the First Amended Complaint and each-and every cause
of action alleged therein, fails to.state facts sufficient to constitute a cause of action against this
answering defendant, and fails to state a claim’upon which relicf may granted.
/ SECOND AFFIRMATIVE DEFENSE
- (Statute of. Limitations).

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

this answering defendant alleges.the First Amended Complaint, and every cause of action alleged

therein, is barred by California: Code of Civil Procedure §§ 335, 338(1), 338(4), 3391), 3403),
340.2; 343, 353 by Commercial Code § 2725, and by all other applicable statute of limitations —
provisions, and Plaintiff is hereby precluded from recovering the damages and other relief sought |
inthe First Amended Complaint, —

THIRD AFFIRMATIVE DEFENSE

Statutes of Limitations/Repose of Other. States)

AS AND F OR, A THIRD. SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
the applicable Jaws, rules, statutes.or regulations, including but no’ limited to, C ‘alifornia Code.of
Civil Procedure § §§ 340(3) and 340.2 and sister state statutes of limitations and statutes of repose
borrowed by California Code of Civil Procedure § 36! > » requiring the institotion of suit swithin a
certain period of time following its accrual were not complied with, and, therefore, Plaintiff's
claims are barred.as a matter of law and equity:

FOURTH AFFIRMATIVE DEFENSE
(Doctrine of Laches)

AS. AND FOR A FOURTH, SEPARA’ fE AND.DIST: INCT AF. FIRMATIVE D

this answering defendant alleges that Plaintiff unreasonably delayed in bringing this action,

without good cause, and has thereby prejudiced the rights of this answering defendant. ‘The First

Amended Complaint and all claims alleged therein are. therefore-barred by the Doctrine of
: 2

ER FIRST. AME? DED COMPLAL
LOSS OF CONSORTIUM. ASBESTOS

y FOR OR PERSONAL, ANJURY AND.tod

CS 6 WA ww

Laches.
FIFTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel)

AS AND-FOR A FIFTH, SEPARATE. AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that Plaintiff.has waived any and all claims which they-seek to assert
in this action, and/or-estopped by their conduct, from asserting or recovering on such claims.

SIXTH AFFIRMATIVE DEFENSE
(Compromise’and Settlement)

AS AND FOR A SIXTH, SEPARATE AND. DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that prior to the filing of this action; Plaintiff fully, completely
and unequivocally settled and compromised their claims-for relief against this answering
defendant.

SEVENTH AFFIRMATIVE DEFENSE
(Action for Relief)

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE. answering defendant alleges the causes of action, if any, attempted to be stated and
set forth in the First: Amended Complaint, are barred by the provisions of the Code of Civil
Procedure of the State of California and/or other states of the State of California, including
without limitation Code ef Civil Procedure § 338d).

EIGHTH AFFIRMATIVE DEFENSE
(Uncertainty)

AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiffs First Amended Complaint, now and as amended in
the future, and cach cause-of action therein, is vague, ambiguous, unintelligible and ‘uncertain.

NINTH AFFIRMATIVE DEFENSE
(Lack of Jurisdiction}

AS AND FOR: AN NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,

this answering defendant alleges, with respect to some or-all of Plaintiffs alleged claims and
3causes of action, this Court lacks jurisdiction.
TENTH AFFIRMATIVE DEFENSE
(Forum Non Conveniens}

AS AND. FOR.A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges, with respect to.some or all of Plaintiffs alleged claims and
causes of action, in the interest. of substantial justice, the action should be heard in a forum
outside this state.

ELEVENTH AFFIRMATIVE DEFENSE
(Improper Venue)

AS AND FOR.A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs First Amended Complaint has been
filed in an improper venue.

TWELFTH AFFIRMATIVE DEFENSE
(Choice of Law)

AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that some or all of Plaintiffs alleged claims, causes
of action and/or legal issues raised in the First Amended Complaint are governed by-the
substantive laws ofa state.other than California.

THIRTEENTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Alternative Entity of Answering Defendant)

AS AND FOR.A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, to the extent the First Amended Complaint asserts an “alternative entity theory,” the
First Amended Complaint fails to state sufficient facts to constitute a cause of action against
answering defendant.

FOURTEENTH AFFIRMATIVE DEFENSE
(Due Care and Diligence)
AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, answering defendant alleges that it exercised due care and diligence-in-all the matters
4

LOSS OF CONSORTIUM. ASBESTOSalleged in the.First Amended Complaint, and no act.or omission by. answering defendant was the
proximate cause of any damage, injury or loss to Plaintiff.
FIFTEENTH AFFIRMATIVE DEFENSE |
(Comparative Fault}

AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that the damages, if any, complained of by Plaintiff, was
proximately caused by the negligence, fault; breach of contract and/or strict liability. of Plaintiff,
or other defendants, firms, persons, corporations, unions, employers and entities other than
answering defendant, and that said negligence, fault, breach of contract and/or strict liability
comparatively reduces the percentage of any negligence, fault, breach of contract and/or strict,

liability for which answering defendant is legally responsible, which liability answering

defendant expressly.denies.
SIXTEENTH AFFIRMATIVE DEFENSE.
(Other Parties* Liability.and Negligence)

AS AND. FOR:A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that if there was any negligence or any other form of
liability on the part of any of the parties named herein, it was the sole and exclusive negligence
and liability of the other persons or entities and not of answering defendant. i

SEVENTEENTH AFFIRMATIVE DEFENSE

Gndependent, Intervening or Superseding Cause) |

AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that if Plaintiff, suffered any injuries attributable tothe

use of any product containing asbestos which was used, disturbed or-sold by answering

defendant, which allegations are expressly denied herein, the injuries were solely caused by.an
unforeseeable, independent, intervening and/or superseding event beyond the control and
unrelated to any conduct of answering defendant. Answering defendant’s-actions, if any, were
superseded by the negligence-and wrongful conduct of others.

if

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EIGHTEENTH AFFIRMATIVE DEFENSE
(Contributory Negligence)

AS AND FORA EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this:answering defendant alleges that at all times and places mentioned in the First
Athended Complaint, now:and as-amended in the future, Plaintiff, was negligent and careless and
failed to exercise that degree of care and caution for their own safety which a reasonable prudent
person would have used under the same or similar circumstances, in that, among other things,
said Plaintiff, so negligently and carelessly stationed. conducted and maintained themselves,
failed to utilize safety devices and other equipment or facilities supplied to them and/or existing
as part of their environment, and failed to observe open obvious conditions, so as to directly and
proximately cause and contribute to their injuries and damages, if any. Plaintiff'is therefore
precluded from obtaining any recovery against this answering defendant. Alternatively, any
negligence or other legal fault attributable.to Plaintiff thereby.comparatively reduces the
percentage of negligence or fault, if any, attributable to.this answering defendant, which this
answering defendant expressly denies.

NINETEENTH AFFIRMATIVE DEFENSE
(Apportionment and Offset)

AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that no act, omission, conduct or product attributable
to it caused or contributed to.any-injuries or damages sustained by Plaintiff, if any, and that if
such injuries and damages, if any, were not solely caused by Plaintiffs own acts, omissions and
other conduct, then said injuries and damages were proximately caused and contributed toby the
negligence and/or other tortious acts, omissions, conduct and products of persons or entities other
than this answering defendant, and that said negligence and/or other legal fault was an intervening
and superseding cause of Plaintiffs injuries and damages, if'any. Any damages recoverable by
Plaintiff must therefore be diminished in proportion to the amotint of fault attributable to these
other persons and entities, and there should be an apportionment of the harm and damage claimed
by Plaintiff, ifany.

DEFENDANT EMIL #. WEBE)SO Se MOH

TWENTIETH AFFIRMATIVE DEFENSE
(Assumption of Risk)
AS AND.FOR A TWENTIETH, SEPARATE AND-DISTINCT AFFIRMATIVE

DEPENSE, this answering defendant alleges that at all times and places referred to in the First
Amended Complaint, as amended, now or in the future, Plaintilf was, or in the exercise of
reasonable care should have been, aware of all circumstances-and conditions then and there
existing and prevailing, but nonetheless knowingly, voluntarily, and in full appreciation of the

potential consequences thereof, exposed themselves to whatever risks and dangers may have been

attendant to such circumstances and conditions, thereby freely and voluntarily assuming any and

all risks incident thereto, and thereby barring Plaintiffs from recovery herein.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Assumption of Risk - Secondary)

AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that at all times.and places referred to in the First
Amended Complaint, as amended, now or. in the-future, Plaintiff.was made aware, or in the
exercise of reasonable case should have been made-aware, of the hazards of-asbestos, and of all
circumstances and conditions then and there prevailing, by the persons whom Plaintiffs claim
brought asbestos into the household from workplaces, but nonetheless knowingly, voluntarily and
in full appreciation of the potential consequences thereof, exposed themselves to. whatever risks
and dangers may have been attendant to such circumstances and conditions, thereby freely and
voluntarily assuming any and all risks incident thereto, and thereby barring Plaintifis from
récovery herein,

TWENTY-SECOND AFFIRMATIVE DEFENSE
(Failure to. Mitigate)

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

DEFENSE, this answering defendant alleges that at all times and places relevant to this action,

Plaintiff failed to make reasonable efforts to mitigate their injuries, loss and/or damages, if any.

rFOR PERSONAL INJURY ANDoN OR

described in the First Amended Complaint which.allegedly injured Plaintiff were, without this

TWENTY-THIRD AFFIRMATIVE DEFENSE
(Improper Use)

AS AND FOR A-TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times material to this action, Plaintiff,
failed to use the products alleged in the First. Amended Complaint in the foreseeable, proper and
sale manner which would have otherwise been anticipated and expected of an ordinary user.
Such misuses of the products described in the First Amended Contplaint by Plaintiff were the
sole, proximate and legal cause-of Plaintiffs injuries and damages, if any, thereby barring Plaintiff
from recovery herein.

TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Advised, Informed and Warned)
AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT APFIRMATIVE

| DEFENSE, answering defendant alleges that Plaintiff was advised, informed, and warned of any

potential hazards and/or dangers, if there were any, associated with the normal or foreseeable use,

handling, and storage of the products, substances, equipment and at premises in which exposure is
| claimed, as well as to‘asbestos “in-place”, all as is described in the First. Amended Complaint, and

| Plaintiff is therefore barred from any relief prayed for therein.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Defect by Product Alteration and Modification)
AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE

| DEFENSE. this ariswering defendant alleges that at all times material to this action, the products

answering defendant's knowledge, approval or consent, and contrary to instructions and/or the
custom and practice in the indusiry, altered, redesigned, modified, or subjected to other treatment.

which substantially changed their character, such that they were not being used, functioning

and/or performing in a manner intended by their manufacturer, and/or were not in substantially

the same or similar condition as when they left the manufacturer's possession. If there was a

defect in said products covered by this answering defendant, which supposition is specifically
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denied by this answering defendant, such defect resulted solely from such alteration, re-design,
modification, treatment or other change therein and not from any act or omission by this
answering defendant, thereby barring Plaintiff from recovery herein as against this answering.
defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Compliance with Specifications - Military)

AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffis barred from recovery herein in that
any and all products allegedly supplied or distributed by this answering defendant were
manufactured and/or produced in conformity with specifications established and provided by the
United States Government pursuant to its War Powers as set forth inthe United States
Constitution, and that any defect in said products -was caused by deficiencies in said
specifications, and not by any action or conduct on the part of this answering defendant.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Compliance with Specifications - General)

AS. AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that
any all products, products used, or products.in place.at the premises at issue herein were
manufactured, packaged, distributed, sold, installed and/or maintained in accordance with
contract specifications imposed by its co-defendants, the U.S.-Government, the State of

California, Plaintiff's employers, the employers of the persons whom Plaintiff allege brought

workplace asbestos to the home-and household of Plaintiff, or other third parties yet to be

identified, and that any defect in said products, or alleged acts or omissions in the installation

and/or maintenance of said products, was caused by deficiencies in said specifications, and not by

any action or conduct on the part of this answering defendant.
‘TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(State of the Art)
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE

MENDED COMPLAINT FOR PERSE
LOSS OF CONSORTIUM. ESTOS:

|
|DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that
all products allegedly manufactured or distributed by this answering defendant were in
conformity with the existing state of the medical, scientific, and industrial knowledge, art, and
practices, and as a result, said products were not defective in any manner.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Compliance with Statutes)

AS AND.FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE. this. answering defendant alleges that all of its conduct and activities as alleged in the
First Amended Complaint conformed to statutes, government regulations, and industry standards
based upon the state of knowledge existing at-all relevant times.

THIRTIETH AFFIRMATIVE DEFENSE.
(No Control of Work}

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to.the-entire First Amended Complaint, and each cause of action thereof, this
answering defendant alleges that it had no control over any work performed. by others, including
Plaintiff, their employers and any entities other than this answering defendant, and, therefore, has
no responsibility for the claimed damages.

THIRTY-FIRST AFFIRMATIVE DEFENSE
(No Right to. Control)

AS-AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs injuries or illness, if any,.were due to
the-acts or omissions of a person orpersons over whom this defendant had neither contro! nor the
right of control.

THIRTY-SECOND AFFIRMATIVE DEFENSE
(No Ownership or Control of Premises)

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE to the entire First Amended Complaint, and each cause of action thereof, this

answering defendant alleges that it did not own, oceupy, possess, lease, maintain, manage.or
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LOSS OF CONSORTIUM- ASBESTOS:control any premises upon which Plaintiff was allegedly exposed to asbestos’and, as a result,
Plaintiffis barred from maintaining any cause of action against this answering defendant under a
theory of premises liability.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Borrowed Servant.Doctrine)

AS AND FOR A-THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges.that at all times and locations mentioned in the First
Amended Complaint on file herein, it is informed and believes that the Borrowed. Servant
Doctrine applies to preclude any claim of liability, damages and/or injury as against answering
defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
{Assumption of Risk - Employer}

AS AND.FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that the First Amended Complaint and cach cause of
action alleged therein are barred on the grounds that Plaintiff, and his employers knowingly
entered into and engaged in operations, acts-and conduct-alleged in the First Amended 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 First Amended Complaint.

THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Contractual Indemnity)

AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this:answering defendant alleges that if Plaintiffs claim exposure to asbestos or
asbestos-containing products at any premises forwhich answering defendant is allegedly liable,
which is.expressly denied herein, answering defendant contracted with Plaintiff and/or Plaintiffs
employers for them to-fully assume all responsibility for insuring Plaintiff's safety, to guarantee
that no hazardous condition existed, and/or-to warn and protect against any such conditions
during the performance of Plaintiff's work and, further, to fully indemnify answering defendant,

and to.hold answering defendant harmless, for responsibility-and liability arising out.of said work

FOR PERSONAL INJURY AND
LOSS OF CONSORTE

|and/or for any injuries allegedly incurred by Plaintiff as.a result of said work. Answering
defendant reserves all rights to assert these provisions of contractual indemnity.
THIRTY-SIXTH. AFFIRMATIVE DEFENSE
(Contribution/Equitable Indemnity)

AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that. in the event it is held liable to Plaintiff, which
liability is expressly denied herein, and any other co-defendants are likewise held Hable,
answering defendant is entitled to a percentage contribution of the total liability from said co-
defendants in accordance with the principles of equitable indemnity.and comparative
contribution.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Civil Code §1431.2)
AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, answering defendant alleges that the provisions.of California Civil Code §1431.2

(commonly referred to as “Proposition 51”) are applicable to Plaintiffs First Amended Complaint
and to each cause of action.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(No Concert of Action)

AS AND FOR A THIRTY-EIGHTTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges there is no concert of action between answering
defendant and any other named defendants. Defendants are not joint tortfeasors and, accordingly,
answering defendant may not be. held jointly and severally liable with any other named
defendants.

THIRTY-NINTH AFFIRMATIVE DEFENSE,
(Insufficient Facts to Show: Conspiracy of Defendants)

AS AND POR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, answering defendant alleges that to the extent the First Amended Complaint asserts

any alleged conspiracy on the part of answering defendants, the First Amended Complaint fails.to
12

DEFENDANT EMI 4.o 2. me NA

state facts sufficient to constitute a cause of action against answering defendant.
FORTIETH AFFIRMATIVE DEFENSE
(Sophisticated Users ~ Failure to Warn)

AS AND FOR THE THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that it was under no legal duty to. warn Plaintiff.of the
hazard associated with the use of products containing asbestos. The purchasers. of said products,
Plaintiff, Plaintiff's employers, his/her labor unions or.other third-parties yet to be identified,
were knowledgeable and sophisticated users and were in a better position to warn Plaintiff of the
risk associated with using products containing asbestos and, assuming a warning was required, it
was the failure of such persons.or entities to give such.a warning that was the proximate and
superseding cause of Plaintiffs-alleged damages herein. As. such, answering-defendant alleges that
the First Amended Complaint, as amended now or in-the future, and any and all claims and causes
of action alleged therein, is/are barred-by the “sophisticated user” doctrine pursuant to Johnson v.
American Standard (2008) 43 Cal.4" 56,

FORTY-FIRST AFFIRMATIVE DEFENSE
(Sophisticated User ~ Plaintiff)

AS-AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE.
DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in the
First Amended Complaint, as amended now orin the future, Plaintiff knew or should have known
of the inherent hazards, risks or potential dangers of the products alleged to be at issue, and was
therefore-a sophisticated and knowledgeable user-of each such product. As such,-this answering
defendant is not liable to Plaintiffs for any alleged failure to warn of such hazards, risks or
dangers.

FORTY-SECONDAFFIRMATIVE DEFENSE

(Sophisticated User - Employer Negligence)
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times relevant tothe matters alleged in the

First Amended Complaint, as amended now or in the future, Plaintiff and each of his employers,

DEFENDANT EMPL J. WEBER ELECTRIC COMPLAINT FOR: ¥EIother than this answering defendant, were sophisticated and. knowledgeable users of asbestos
products and said employers’ negligence in providing said products to their employees .in a
negligent, careless and reckless manner was a superseding cause of Plaintiffs’ injuries, if any.
FORTY-THIRD AFFIRMATIVE DEFENSE
(Work Hazard Precautions)

AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that Plaintiff and each of his emplover(s) were advised
and warned of any potential hazards and/or dangers associated with the normal and foreseeable
contact with, or storage and disposal of, the products referred to in the First Amended Complaint,
in a manner which was adequate notice to an industrial user of such products to enable itto
inform its employees to take appropriate work precautions to prevent injurious exposure.

FORTY-FOURTH AFFIRMATIVE DEFENSE
(Consent)

AS.AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, Answering defendant alleges that at all times mentioned, Plaintiff consented to the.
alleged acts or omissions of answering defendant.
FORTY-FIETH AFFIRMATIVE DEFENSE
(insufficient Exposure)

AS AND POR A FORTY-FIFTH, SEPARATE AND DISTINCT. AFFIRMATIVE
DEFENSE, answering defendant alleges that any exposure of Plaintiff to answering defendant's
activities, or exposure to asbestos or asbestos-containing products, was’so minimal as to be
insufficient to establish by'a reasonable degree ‘of probability that any such activity or product
caused any alleged injury, damages, or loss to-Plaintiff,

FORTY-SIXTH AFFIRMATIVE DEFENSE
(Unusual Susceptibility)

AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, answering defendant alleges that Plaintiff's injuries and damages, if any, were

proximately caused or contributed to by Plaintiffs unforeseeable idiosyncratic condition, unusual
14

EMIL J. WEBER ELECTRICCO.
LO!

ST
OF CONSORTIUM- ASBESFOS:susceptibility, or hypersensitivity reactions for which answering defendant is not liable.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
(Observable Defect ~ Reasonable'Care)

AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT APFIRMATIVE
DEFENSE to the entire First Amended Complaint, and each cause of action thereof, this
answering defendant alleges that any danger or defect in or about the premises was obvious or
could have been observed by Plaintiff'in this exercise of reasonable care.

FORTY-EIGHTH AFFIRMATIVE DEFENSE
(Trivial Defect)

AS AND FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire First Amended Complaint, and each cause of action thereof, this
answering defendant alleges that any defect of danger in or about the premises was trivial.

FORTY-NINTH AFFIRMATIVE DEFENSE
(No Successor, Predecessor or Alter Ego Liability)

AS AND FOR A FORTY-NINTH, SEPARATE. AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant denies that it was a successor, successor in business,
successor in product line or a portion thereof, assign, predecessor, predecessor in business,
predecessor in product line ora portion thereof, parent, alter-ego, subsidiary, wholly or partially
owned by, or the whole.or partial owner of or member in any entity owning property, maintaining

premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling.

distributing, leasing, buying, offering for sale, selling, inspecting, servicing. installing,
contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for
others, packaging, and. advertising any asbestos/silica products. This answering defendant is
therefore not liable for any acts, whether they are-active or-passive, or omissions of any entities to

which this answering defendant is or may be alleged to be.a successor-in-interest, predecessor-in-

interest, alter ego, or the like.

i

‘OMPLAINT FOR PERSONALwa

FLFTIETH AFFIRMATIVE DEFENSE
(Lack of Privity)

AS AND FOR A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times and places mentioned in the First Amended
Complaint, as amended, now or in the future, Plaintiff was not in privity of contract with this
answering defendant, and said lack of privity bars Plaintiffs recovery herein upon any theory of
warranty.

FIFTY-FIRST AFFIRMATIVE DEFENSE
(Breach of Contract ~ Timely Notice}
AS AND FOR A FIFTY-FIRST. SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiff failed to give this answering defendant

timely and reasonable notice of any alleged breach of contract or warranty, thereby barring
Plaintiff from recovery herein.
FIFTY-SECOND AFFIRMATIVE DEFENSE
(Breach of Warranty ~ Waiver)

AS AND FOR A FIFTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges at all times and places relevant to this action,
Plaintiff waived whatever fight he might otherwise have had to claim a breach of warranty, in that
Plaintiff failed to notify this answering defendant of any alleged breach of warranty; express.or
implied, and if any alleged defects existed in. any products manufactured or distributed by this
answering defendant, Plaintiff discovered or should have discovered said defect or non-
conforinity, if'any existed, and failure.to do sa within a.reagonable period of time prejudices this
answering defendant from being able-to fully investigate and defend the allegations made against
it in the First Amended Complaint, now and as amended in the future.

FIFTY-THIRD AFFIRMATIVE DEFENSE
(Breach of Warranty - Disclaimer)
AS AND FOR. A FIFTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiffs breach of warranty claims are barred
16

DED COMPLAINT FOR PERSONAL.DEFENDANT EMIL J.

by written disclaimers and/or-exclusions contained on orin the labels or packaging of the
products at issue in this action.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
(Punitive Damages ~ Failure to State Cause. Of Action}

AS. AND. FOR A PIFTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the First Amended Complaint, now and as
amended in the future, and cach and every cause of action contained therein, fails to state facts
sufficient to constitute “fraud,” “oppression.” or “malice,” as these terms are used in California
Civil Code. § 3294, and therefore fails to a.cause of action for punitive damages.

FIFTY-FIFTH AFFIRMATIVE DEFENSE
(Punitive Damages ~Good Faith)

AS AND FOR A FIFE Y-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is barred
because answering defendant at all times and places referenced or mentioned in the First
Amended Complaint acted reasonably and in good faith, and without malice or oppression
towards the Plaintiff.

FERTY-SIXTH AFFIRMATIVE DEFENSE
(Punitive Damages - Predecessor)

AS AND FOR A FIFTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the imposition of punitive/exemplary damages
against this corporate defendant for-acts of a former and/or predecessor corporate entity would be
a violation of due process of law, and against public policy, under the various laws of the State of
California and the United States.

FIFTY SEVENTH AFFIRMATIVE DEFENSE
(Punitive Damages ~- ge Amendment)

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

DEFENSE, this answering defendant alleges that California Civil. Code § 3294 violates the Due

Process and/or Equal Protection clauses of the California and/or United States Constitutions, is

COMPLAINT FOR PERSONAL
OSvoid because it is vague and ambiguous, constitutes and undue burden on interstate-commerce,
and violates the Eighth Amendment to the United States Constitution. Accordingly, Plaintiff is
barred from any recovery thereunder.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
(Punitive Damages -- Remitted)

AS AND FOR A FIFTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the imposition of any punitive damages in this
matter would constitute:a criminal fine-or penalty-and should, therefore, be remitted on the
ground that the award violates the United States Constitution.

FIFTY-NINTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act)

AS AND FOR A FIFTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that the liability of this answering defendant, if any.

shall be apportioned in accordance with the provisions of California Civil Code §§ 1431, et seg.,

commonly known as the Fair Responsibility Act of 1986.

SIXTIETH AFFIRMATIVE DEFENSE

(Workers* Compensation « Offset)

AS-AND FOR A SIXTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges on information and belief that at all times.and places relevant to
this. action, Plaintiff was.an employee of any.employer or employers. whose names are presently
unknown, and that any injuries or damages alleged in the First Amended Complaint, as amended
now or in the future, occurred while Plaintiffs were acting within the course of scape of such
employment. This answering defendant further alleges on information and belief that Plaintiff's
employers provided Plaintiff, with certain benefits in. compliance with the terms and provisions of
the Workers’ Compensation Laws of the State of California. The nature and extent of such
Workers’ Compensation benetits that may-have been provided is unknown, but when said
benefits are.déetermined, leave-to.amend this answer and to set forth the details of said benefits

will be sought. It is further alleged that any and _all injuries or damages complained of by Plaintiff
18

DEFENDANT EMIL J. WEBER ELECTRIC Cwere solely and proximately caused by, or resulted from, the negligence and carelessness of
Plaintiff's, employers, his co-workers and/or his employer’s agents, servants or employees.
Therelore, this. answering defendant is entitled to an offset of any such benefits received or to be
received by Plaintiffs against any judgment which may be rendered in favor of said Plaintiff,
pursuant to the doctrine of Wittv. Jackson (1961) 57 Cal.2d 57:

SIXTY-FIRST AFFIRMATIVE DEFENSE

(Workers’ Compensation ~ Exclusive Remedy)

AS AND FOR A-SIXTY-FIRST, SEPARATE AND DISINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein if at any
time, past or present, Plaintiff was or is. an employee of this answering defendant, including any
of this answering defendant's divisions or subsidiaries, thereby creating conditions of
compensation. The right to recover Workers’ Compensation benefits is Plaintiffs sole and
exclusive.remedy as against this answering defendant, pursuant tothe provisions of California
Labor Code §§ 3300, et. seq., and/or $3 3600. et seq. This answering defendant is entitled to a
judicial determination of any such employer-employee relationship establishing such exclusive

remedy and bar to-recovery prior to any-hearing or trial on the merits in this matter.

SEXTY-SECOND. AFFIRMATIVE DEFENSE
(Not.a Substantial Factor}

AS AND FOR A SIXTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that even if Plaintiff was exposed to any.asbestos-
containing products manufactured or distributed by this answering defendant, which supposition
is expressly denied, Plaintiffs’ exposure to said products would have been so minimal as to be I
insufficient to constitute a “substantial contributing factor” in the causation of Plaintiffs alleged
injuries or disease, if any.

SESTY-THIRD AFFIRMATIVE DEFENSE
(Duty to Warn - Employer)
AS AND FOR A SIXTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant is not liable for any alleged failure to warn of any risks,
19

DEFENDANT EMIL J. WEBER ©

LOSS OF CONSORTIUM: ASBESTOS:dangers or hazards ‘in the use of any asbestos-containing products or other goods that it allegedly
distributed, sold, supplied or delivered to Plaintiff or-cach of his employers, because said

employers had as great, if not greater, knowledge about the nature of any risks, dangets or

Bm won

hazards than did this answering defendant, and unlike this answering defendant, said employers

wa

were in a position to warn person exposed to such products any such risks, dangers.or hazards.
SIXTY-FOURTH AFFIRMATIVE DEFENSE
(Strict Liability ~ Barred)
AS AND FORA SIXTY FOURTH: SEPARATE .AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that to.the extent the First Amended Complaint, or

BP OC RB MD

any cause of action alleged therein, is based upon an allegation of strict products liability as

11 | against this answering defendant,-said cause of action cannot be maintained as this answering

12 | defendant was not a “seller” within the meaning of § 402A of the Restatement (Second) of Torts,

3 | and consequently any claim of strict liability against.this answering defendant is barred pursuant

14 | to. Monte Vista Development Corporation vs. Superior Court (1991) 226 Cal App.3d 1681.

15 SEXTY-FIFTH AFFIRMATIVE DEFENSE |

6 (Not Liable for Market-Share or Enterprise}
7 AS AND FOR A SEXTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE

18 | DEFENSE, his answering defendant did not and does not have.a substantial percentage of the

19 | market for-any asbestos-containing products which allegedly caused the injuries and damages
20 | claimed by Plaintiff. Furthermore, the asbestos-containing products which allegedly caused the
21 | injuries and-damages claimed by Plaintiff are not “fungible” in nature. As such, this answering
22. defendant may notbe held liable to Plaintiff based upon any “market-share” or.“enterprise”

23 | theories of liability.

24 SEXTY-SIXTH AFFIRMATIVE DEFENSE
25 (No Sindell v. Abbor Labs Liability)
26 AS AND. FORA SIXTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE

27 | DEFENSE, this-answering defendant alleges that the First Amended. Complaint, now or as

28 | amended in the future, and each purported cause of action set forth therein, to the extent it

MENDED ‘COMPL, RE PERSONAL INJURY AND

‘M- ASBESTOS:purports to state a cause of action under Sindell v. Abbot Laboratories, (1980) 26 C. rd 588, cert.

denied, 449 U.S. 912 (1980), is barred. by the Plaintiffs failure to join as defendants the

manufacturer of a substantial share-of the alleged market which Plaintiff allege Defendant herein

is a member, and should it prove impossible to identify the manufacturer of the product which

comprises said alleged market, said purported causes of action are barred by the fault of the

Plaintiff and his agents in making the identification of the manufacturer impossible.
SEXTY-SEVENTH AFFIRMATIVE DEFENSE

(Failure to State Sufficient Facts - Market-Share and Enterprise Liability)

AS AND FOR A SIXTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges to the-extent the First Amended. Complaint asserts
defendant's alleged “market share” liability, or “enterprise liability”, the First Amended
Complaint fails to state facts sufficient to constitute-a cause of action against defendant.

SIXTY-EIGHTH AFFIRMATIVE DEFENSE
(Relevant Market Apportionment)
AS AND FOR A SIXTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that its liability, if any, to the extent Plaintiffs action

is pursued or found to’be’a market share action, is several only; that is, this ‘answering defendant
would be liable only for that portion of Plaintiffs damages, if any be found, that corresponds to
the percentage-of this answering defendant's share of relevant market for the subject product.
SEXTY-NINTH AFFIRMATIVE DEFENSE
{Locomotive Boiler Act)

AS AND FOR A SIXTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges.that the First Amended. Complaint, now-or as
amended in the future, and any and all claims and causes of action alleged therein, are preempted
by the Locomotive Boiler Inspection Act 49.U.S.C.S. §§ 20701, ef seg., the Federal Safety
Appliances Act, 49-U.8.C. § 20301, er seq., and all other applicable federal statues, laws or
teguiations.

ieSEVENTIETH AFFIRMATIVE DEFENSE
(Contravention of Constitutional Rights to Due-Process)

AS AND FOR A SEVENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the First Amended Complaint, now or as
amended in the future, and each purported cause of action set forth therein, if based upon lack of
identification of the manufacturer of the alleged -injury-causing product, fails to state facts
sufficient to constitute a cause of action against this answering defendant herein in that Plaintiff
has asserted claims for relief which, if granted, would contravene this answering defendant's
constitutional rights to substantive and procedural due process of law as preserved by the
Fourteenth Amendment of the Constitution of the United States and by Article I, Section 3 of the
Constitution of the state of California.

SEVENTY-FIRST AFFIRMATIVE DEFENSE
(Denial of Constitutional Rights to Equal Protection)

AS_AND FOR. A SEVENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendantalleges that the First Amended Complaint, now or as
amended in the future, and each purported cause of action set forth therein, if based upon lack of
identification of the manulacturer of the alleged injury-causing product, fails to state facts
sufficient to constitute a cause of action against this answering defendant herein in that Plaintiff
has asserted claims for relief which, if granted, would constitute a denial by this Court of this
answering defendant’s right te equal protection of the law, as preserved by-the Fourteenth

Amendment of the Constitution of the United States and by Article I, Section 3 of the

Constitution. of the state of California.
SEVENTY-SECOND AFFIRMATIVE DEFENSE
(Unconstitutional Taking of Private Property-for Public Use. Without Just Compensation)
AS AND FOR A SEVENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the First Amended Complaint, now or as
amended in the future, and each purported cause of action set forth therein, if based upon lack of

identification of the manufacturer of the alleged injury-causing product, fails to state facts
22to

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sufficient to. constitute a cause of action against this answering defendant herein in that Plaintiff
has asserted claims for relief which, if granted, would constitute.a taking of private property for
public.use without just. compensation, and that such taking would contravene this answering
defendant's constitutional rights as preserved. by the Fourteenth Amendment of the Constitution
of the United States and by. Article 1, Section 3 of the Constitution of the state of California.
SEVENTY-THIRD AFFIRMATIVE DEFENSE
(Violation of Commerce. Clause.of U.S. Constitution)
AS AND-FOR A SEVENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this.answering defendantalleges that the First Amended Complaint, now or as

amended in the future, and each purported cause of action set forth therein, if based upon lack of

identification of the manufacturer of the alleged injury-causing product, fails to state facts
sufficient to constitute a cause of action against this answering defendant herein in that Plaintiff
has asserted claims for relief which, if granted, would constitute an invalid burden by the Court
on interstate commerce and a-burden without resort to less burdensome alternatives, in violation
of the Commerce. Clause, Article 1, Section 8 of the Constitution of the United States.
SEVENTY FOURTH AFFIRMATIVE DEFENSE
(Failure to State Sufficient Facts ~- Lack of Identification of Manufacturers)

AS AND FOR-A SEVENTY FOURTH,-SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that the First Amended Complaint, now or as

amended in the. future, and the purported cause of action alleging breach of express watranty,

fraud, fraud by concealment and/or claiming punitive damages, if based upon lack of
identification of the manufacturer of the alleged injury-causing product, fails to state facts
sufficient to constitute a cause. of action against this answering defendant herein in that Plaintiff
has asserted claims for which may not be maintained in such an action pursuant to.the laws of this
State and the orders.of this Court.
SEVENTY-FIFTH AFFIRMATIVE DEFENSE
(Federal Preemption ~- Violation of Supremacy Clause)

AS AND FOR A SEVENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
23

DEFENDANT EMIL J. WE! AL INJURY AND| DEFENSE, this‘answering defendant alleges that the First Amended Complaint, as.amended now

or in the future, and any and all claims.and causes of action alleged therein, fails to state a cause

| of action against this answering defendant because the. federal government has preempted the

field of law applicable to the products alleged to have caused Plaintiffs injuries, or the claims
forming the basis for relief, ‘The granting of the relief prayed for in the First Aménded Complaint
would impede, impair, {rustrate and/or burden the effectiveness of federal law regulating the field
and would violate the Supremacy Clause contained in Article VA, Clause-2 of the United States
Constitution.

SEVENTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTY-SIXTH, SEPARATE AND. DISTINCT AFFIRMATIVE

| DEFENSE, this answering defendant alleges that the activity alleged in the First Amended

|
(Not Ulva Hazardous Under California Law) |
|
Complaint, as amended now or in the future, and any and all claims and. causes.of'action alleged
therein, to the extent it was engaged in by this answering defendant, if at all, was not ultra
hazardous under California Law.
SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
(No.Causal Facts)
AS AND FOR. A SEVENTY-SEVENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff cannot prove any
facts showing that the conduct. of this answering defendant was the cause in fact of any injuries or
damages suffered by Plaintiff as alleged in the First Amended Complaint.
SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
(No Proximate Cause)
AS AND FOR A SEVENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiff cannot prove any facts showing that

suffered by Plaintiff as alleged in the First Amended Complaint.

the conduct of this answering defendant-was the proximate-cause of any injuries or damages

OF CONSORTIUM. ASBESTOS:ta

Ae

SEVENTY-NINTH AFFIRMATIVE DEFENSE
(Failure to Join Indispensable Parties)

AS AND FOR A SEVENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering deféndant alleges that the First Amended Complaint, as amended now
orin the future, and any and all claims and causes of action alleged therein, is/are barred. by
Plaintiffs failure to-timely join one.or more parties that.are indispensable and/or necessary to a
resolution of the matter alleged in the First Amended Complaint, as required by California Code
of Civil Procedure § 389,

EIGHTIETH AFFIRMATIVE DEFENSE
{Res Judicata and Collateral Estoppel)

AS AND FOR AN EIGHTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the First Amended Complaint, as amended naw
orin the future, and any and_all claims and causes of action alleged therein, is/are barred pursuant
to the doctrines of res judicata and/or collateral estoppel.

EIGHTY-FIRST AFFIRMATIVE DEFENSE

efect and Misjoinder of Parties)
AS AND FOR AN EIGHTY-FIRST, SEPARATE. AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that the First Amended Complaint,.as amended now

or in the future, and any and all claims and causes.of action alleged therein, is/are barred because
there is a defect and misjoinder of parties.
ELGHTY-SECOND AFFIRMATIVE DEFENSE
(Plea in. Abatement/Other Action)

AS AND FOR AN EIGHTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff has improperly split their causes of
action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances-as.a
lawsuit previously filed.

Me
“ib
25

DEFENDANT EMIL 4. WEBER ELECTRIC CO. 3 D OOMPLAINT FOR PERSONAL [SJURY. AND
LOSS OF CONSORTIUM. ASBESTOSEIGHTY-THIRD AFFIRMATIVE DEFENSE
(Government Contractor)

AS AND FOR.AN EIGHTY-THIRD, SEPARATE AND DISTINCT AFEIRMATIVE
DEFENSE, this answering defendant alleges that to the extent it was a government contractor
with respect to any products involved in this lawsuit, Plaintiff's barred from any recovery based
on the government contractor defense.

EIGHTY-FOURTH AFFIRMATIVE DEFENSE
(Acquiescence