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

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CYRIAN B. TABUENA, State Bar No. 108754
ctabuena@wibm.com

ALEXANDRA NASSOPOULOS, State Bar No, 238597
anassopoulos@wfbm.com ELECTRONICALLY
WALSWORTH FRANKLIN BEVINS & McCALL, LLP FILED
601 Montgomery Street, Ninth Floor Superior Court of California,

4 | San Francisco, California 94111-2612 County of San Francisco

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Walsworth,
Franidin,
Bevins &

‘McCall, LLP

ATTORNEYS ATLA

Telephone: (415) 781-7072 011
Facsimile: (415) 391-6258 FEB 07 2011

BY: RAYMOND K. WONG
Attorneys for Defendant Deputy Clerk
THE W. W. HENRY COMPANY

SUPERIOR COURT OF CALIFORNIA.
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

Plaintiffs, ANSWER OF DEFENDANT THE W. W.
HENRY COMPANY TO PLAINTIFFS'
vs. COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM -
C.C. MOORE & CO. ENGINEERS; et al., ASBESTOS

Defendants.

Defendant THE W. W. HENRY COMPANY (hereafter "Defendant"), in answering the
Plaintiffs’ unverified complaint, for itself alone, and severing itself from all others, admits, denies
and alleges as follows:

1 Pursuant to California Code of Civil Procedure section 431.30, Defendant denies,
both generally and specifically, each, every, and all allegations of each and every purported cause
of action or count of Plaintiffs' complaint, denying specifically that Plaintiffs have been, are or will
be injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and
further denying that Defendant was negligent in any manner, that the alleged product was defective
in any way, or that the alleged defect was the proximate cause of the Plaintiffs’ claimed damages or
injuries,

DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY

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HAMILTON MATERIALS, INC.'S ANSWER TO PLAINTIFFS’ COMPLAINT

1130199,1
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Walsworth,
Franklin,
Bevins &

‘McCall, LLP

APrOnSENSAT LAW

CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH PLEADED
SEPARATELY TO EACH AND EVERY CAUSE OF ACTION:
FIRST AFFIRMATIVE DEFENSE
2. The complaint and each and every purported cause of action or count thereof fail to
state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
3. Defendant is informed and believes and thereon alleges that the acts, injuries and/or
damages alleged in Plaintiffs' complaint occurred and were proximately caused by either the sole
negligence or fault of Plaintiff, which sole negligence or fault bars Plaintiffs’ recovery, or were
contributed to by Plaintiff's negligence or fault. Plaintiffs' recovery, if any, should be reduced by
an amount proportionate to the amount by which Plaintiff's negligence or fault contributed to the
happening of the alleged incident and/or alleged injury.
THIRD AFFIRMATIVE DEFENSE

4. Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiffs'
injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other
Defendants in this lawsuit, and other persons and entities not parties to this lawsuit, account for one
hundred percent (100%) of the causal or contributing factors relating to Plaintiffs' injuries and
damages, if any, and/or constitute the supervening and/or intervening causes of the injuries and
damages, if any, alleged by Plaintiffs.

FOURTH AFFIRMATIVE DEFENSE

5. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged by Plaintiffs occurred and were proximately caused by either the sole negligence
of Plaintiffs employers or co-employees, which sole negligence bars Plaintiffs' recovery, or were
contributed to by the negligence of Plaintiff's employers or co-employees. Plaintiffs' recovery, if
any, must be reduced by an amount proportionate to the amount by which the negligence of
Plaintiff's employers and/or the negligence of Plaintiff's co-employees contributed to the happening

2.
THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT

1130199,1
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Walsworth,
Frankdin,
Bevins &

‘McCall, LLP

of the alleged accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE

6. Defendant alleges that while at all times denying any liability whatsoever to
Plaintiffs, any alleged liability or responsibility of Defendant is small in proportion to the alleged
liability and responsibility of other persons or entities, including other persons and entities who are
parties herein, and Plaintiffs should be limited to seeking recovery from Defendant for the
proportion in which Defendant is allegedly liable or responsible, all such alleged liability and
responsibility being expressly denied.

SIXTH AFFIRMATIVE DEFENSE

7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment and was entitled to receive, did receive and will continue to receive workers'
compensation benefits. Plaintiff's employers failed to provide the Plaintiff with a safe place in
which to work and Plaintiff's employers’ negligence, carelessness and other acts and omissions
proximately caused the injuries and damages claimed. Therefore, said employers and their
workers' compensation carriers are barred from any recovery by lien or otherwise herein and
Defendant is entitled to set off any such benefits Plaintiffs have received against any judgment
rendered in favor of Plaintiffs.

SEVENTH AFFIRMATIVE DEFENSE

8. Defendant is informed and believes and thereon alleges that Plaintiff knew of the
risks and dangers inherent to Plaintiff's conduct and with full knowledge of the risks and dangers
and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the
risks, injuries and damages, if any, sustained thereby. Plaintiff's assumption of risk bars or
proportionately reduces any recovery by Plaintiffs.

EIGHTH AFFIRMATIVE DEFENSE

9. Plaintiffs have failed to make reasonable efforts to mitigate their injuries and/or

damages, if any.

fit
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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

1130199.1
9999-99.07428

Walsworth,
Franidin,
Bevins &

McCall, LLP

ATTORNEDS AT LAW

NINTH AFFIRMATIVE DEFENSE

10. Plaintiffs’ complaint and each and every cause of action are barred by the applicable
Statute of Limitations, including, but not limited to, Code of Civil Procedure sections 335.1, 338,
339, 340.2 and 343.

TENTH AFFIRMATIVE DEFENSE
11. Plaintiffs' action is barred by the provisions of Labor Code section 3600, et seg.
ELEVENTH AFFIRMATIVE DEFENSE

12. Defendant alleges that Plaintiffs have waived and are estopped from asserting any
claim against Defendant by reason of Plaintiffs' approval and consent to the risks of the matters
causing the damages, if any, and their acknowledgement of, acquiescence in and consent to the
alleged acts or omissions, if any, of Defendant.

TWELFTH AFFIRMATIVE DEFENSE

13. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of

this action and thereby prejudiced the rights of Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that Defendant manufactured and produced its products in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiff is barred as a consequence.

: FOURTEENTH AFFIRMATIVE DEFENSE

15. Defendant alleges that Plaintiffs are barred from asserting any claim based on
breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties
alleged in their complaint in the event such alleged warranties are proved at trial.

FIFTEENTH AFFIRMATIVE DEFENSE

16. Defendant alleges that Plaintiffs have waived whatever rights they might otherwise
have had for breach of warranty in that Plaintiffs failed to notify Defendant of any alleged breach
of warranty, express or implied, and/or of any alleged defect in any product manufactured or
marketed by Defendant within a reasonable time after Plaintiffs discovered, and/or should have
discovered, any defect or nonconformity, if any existed, thereby prejudicing Defendant from being

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

11301991
9999-99.07428

Walswortt,
Feantain,
Bevins &

McCall, LLP

ATTORYETS AT LAW

able to fully investigate and defend the allegations contained in Plaintiffs' complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that Plaintiffs are now estopped from claiming that any product
manufactured or marketed by Defendant was in any way defective or failed to conform to any
alleged warranties in that Plaintiffs failed to notify Defendant of any defect or nonconformity in
any product within a reasonable time after Plaintiffs discovered, or should have discovered, any
defect or nonconformity, if any existed.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. Defendant alleges that Plaintiffs were not in privity of contract with Defendant and
that such lack of privity bars Plaintiffs' recovery herein upon any theory of warranty.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Defendant alleges that Plaintiff and/or other persons, without Defendant's
knowledge and/or approval, redesigned, modified, altered and/or used Defendant's products
contrary to the instructions and warnings and the customs and practices of the industry so as to
substantially change the character of Defendant's product. Defendant further alleges that if the
products of Defendant were defective in any way, which defectiveness is specifically denied, such
defectiveness resulted solely from the redesign, modification, alteration, use or other changes
thereto and not from any act or omission of Defendant. Therefore, the defect, if any, so created by
Plaintiff and/or other persons or parties, as the case may be, was the sole and proximate cause of
the injuries and/or damages, if any, alleged by Plaintiffs.
NINETEENTH AFFIRMATIVE DEFENSE
20. Defendant is informed and believes and thereon alleges that the accident, injury
and/or damages alleged in Plaintiffs’ complaint were solely and proximately caused by Plaintiff's
misuse of the product. Defendant could not have reasonably foreseen this misuse and Plaintiff's
misuse thereof bars recovery against Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
21. Defendant is informed and believes and thereon alleges that any injuries or damages
alleged by Plaintiffs, the existence thereof being expressly denied by Defendant, are the direct and

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

11301991
9999-99.07428

Walsworth,
Fronidin,
Bevins &

MeCat, LLP

proximate result of Plaintiff's particular, idiosyncratic, peculiar or unforeseeable susceptibility to
the alleged product manufactured by Defendant, which reaction was not the result of any conduct
or omission of Defendant, nor the result of any defect in any product manufactured by Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. Defendant alleges that in light of all relevant factors, on balance with the benefits of
the design of any product alleged to have caused injuries to Plaintiffs, if any, the benefits outweigh
the risks and danger, if any, inherent in the design of any such product.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23, Defendant alleges that if Plaintiff was injured by any product manufactured or
distributed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs and is not
liable for those injuries or for Plaintiffs' claimed damages as the products when manufactured and
distributed conformed to the then current state-of-the-art specifications and because the then
current state-of-the-art medical, scientific and industrial knowledge, art and practice were such that
Defendant did not and could not know that the products might pose a risk of harm in normal and
foreseeable use.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. Defendant alleges that if Plaintiff was injured by any product manufactured by
Defendant, such products were intended and sold in bulk to a knowledgeable and sophisticated
distributor or user over whom Defendant had no control who was fully informed as to the risks and
dangers, if any, associated with the products and the precautions, if any, required to avoid the risks
and dangers, if any.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Defendant is informed and believes and thereon alleges that Plaintiff is a member of
a sophisticated group of users of Defendant's services, products, materials and/or equipment.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Defendant is informed and believes and thereon alleges that Plaintiff possessed the
level of knowledge and skill based upon Plaintiff's training, education and/or experience such that
Plaintiff should be categorized as a sophisticated user of Defendant's services, products, materials

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT

1130199,1

9999-99.0741 | and/or equipment.

2 TWENTY-SIXTH AFFIRMATIVE DEFENSE

3 27. Defendant is informed and believes and thereon alleges that Plaintiff was trained to
4 | perform the tasks Plaintiffs claim caused Plaintiff to contact with Defendant's services, products,

5 | materials and/or equipment.

6 TWENTY-SEVENTH AFFIRMATIVE DEFENSE

7 28. Defendant is informed and believes and thereon alleges that Plaintiff would

8 | reasonably be expected to know of the hazards of working with and/or around Defendant's services,
9 | products, materials and/or equipment.

0 TWENTY-EIGHTH AFFIRMATIVE DEFENSE

11 29. Defendant is informed and believes and thereon alleges that Plaintiff was employed
2 | by and trained by a company who is a member of a sophisticated group of users of Defendant's

3 | services, products, materials and/or equipment.

14 TWENTY-NINTH AFFIRMATIVE DEFENSE
5 30. Defendant alleges that if Plaintiff was injured by any product manufactured by

16 | Defendant, the products were accompanied by good and sufficient labeling when they left the

17 | custody, possession and control of Defendant which gave conspectus, reasonable and adequate

8 | warnings and directions to the users of the products concerning the purpose for which, and manner
19 | in which, the products were to be used and concerning the risks and dangers, if any, attendant to
20 || said use. Defendant alleges that as a result of the warnings and directions, Defendant fulfilled

21 | whatever duty, if any, that was owed to Plaintiffs. If Plaintiff was injured by any such product, the
22 || injuries were proximately caused by the use of the product in disregard of the wamings and

23 || directions, which was not reasonably foreseeable to Defendant.

24 THIRTIETH AFFIRMATIVE DEFENSE
25 31. Defendant alleges that Plaintiffs did not reasonably rely upon any act, omission or

26 | representation of Defendant.

27 THIRTY-FIRST AFFIRMATIVE DEFENSE

28 32. Defendant denies any and all liability to the extent that Plaintiffs may assert
Walsworth, -7-
evi THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

‘MeCall, LLP
ATTONNENS ATL

1130199.1
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Walsworth,
Franidin,
Bevine &

McCall, LLP

APraRSEYS AT LAW

Defendant's alleged liability as a successor, successor in business, successor in product line or a
portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a
portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
owner or member in an entity in which there has been research, study, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising of a certain substance, the generic name of
which is asbestos.
THIRTY-SECOND AFFIRMATIVE DEFENSE

33. Defendant alleges that Plaintiffs herein lack legal capacity and standing to sue, are
not real parties in interest or persons with superior right to make the claims contained in their
complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent
that Plaintiffs lack standing or proper appointment to bring the claims they are asserting, any action
taken in this matter with regard to their claims is voidable. Defendant further contends that any
declaration filed by any person asserting a survival claim contains expert opinions and conclusions
that are not supported and that the declarant is not qualified to make.

THIRTY-THIRD AFFIRMATIVE DEFENSE

34. Defendant alleges that Plaintiffs' complaint and each and every cause of action fail
to state facts sufficient to constitute a cause or causes of action for punitive damages against
Defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

35. Defendant alleges that Defendant did not have the requisite mental state necessary to
i allow Plaintiffs to succeed on a claim for civil battery against Defendant. Defendant did not intend
that asbestos-containing products allegedly distributed or installed by Defendant would cause harm
to the Plaintiff. Defendant did not intend that asbestos fibers allegedly released from such products
would be released in Plaintiff’s presence, or come into contact with Plaintiff's person, if such fibers
were released and such contact was made. As Defendant did not intend to harm Plaintiff or make
contact with Plaintiff's person, a necessary element of Plaintiffs’ claim for civil battery is absent

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS’ COMPLAINT

11301991
9999-99.07428

Walsworth,
Franklin,
Bevis &

McCall, LL?

Arras arta

|

and the entire claim must fail as a matter of law.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
36. Defendant alleges that Defendant did not have the requisite mental state necessary to
allow Plaintiffs to succeed on a claim for civil battery against Defendant. Defendant did not know,
nor should have known, that asbestos-containing products allegedly distributed or installed by
Defendant would be handled and utilized by others outside of Defendant’s control in a way that
would result in the release of asbestos fibers. Furthermore, it was not foreseeable that such use
could cause asbestos fibers to make contact with Plaintiff's person. Moreover, when the alleged
products were installed and/or distributed, they conformed to the then current state-of-the-art
specifications, and because the then current state-of-the-art medical, scientific and industrial
knowledge, art and practice were such that Defendant did not know that the products might pose a
risk of harm in normal and foreseeable use. Therefore, through the installation and/or distribution
of products that allegedly contained asbestos, Defendant did not act in a way evidencing wanton
disregard for the Plaintiff's rights sufficing recklessness. Plaintiffs’ claim for civil battery must
fail, as Plaintiffs have not alleged an element necessary to allow this claim to proceed.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
37. Defendant alleges that insofar as the instant complaint is an attempt to recover
punitive or exemplary damages from Defendant, it violates the following United States
Constitutional and California State Constitutional principles:

a. Excessive fines clause of the United States Constitution, Eighth
Amendment and Fourteenth Amendment;

b. The contract clause, Article I, Section 10, clause 1, and the Fourteenth
Amendment of the United States Constitution;

c The due process clause of the United States Constitution, Fourteenth
Amendment;
d. The equal protection clause of the United States Constitution;

e. The California Constitution due process and equal protection clauses,
Article 1, Section 7(a);

f The California Constitution excessive fines clause, Article 1, Section 17.

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS COMPLAINT

11301991
9999-99,074WHEREFORE, Defendant THE W. W. HENRY COMPANY prays for judgment as

2 | follows:

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7 | Dated:
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Walsworth,

1. That Plaintiffs take nothing from Defendant by virtue of the complaint herein;
2. That Defendant be awarded costs of suit and attorneys’ fees herein; and

3. That Defendant be granted such other and further relief as the Court may deem just

and proper.

February 4, 2011 WALSWORTH FRANKLIN BEVINS & McCALL, LLP

Sar
CYRIAN B. TABUENA

ALEXANDRA NASSOPOULOS
Attorneys for Defendant
THE W. W. HENRY COMPANY

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Franklin,
Bevins &
McCall, LLP

Arronssrs ares | 11301991

THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

9999-99.074Waleworth,
Fraoktin,
Bevins &

MeCall, LLP

APruayess ar ate

PROOF OF SERVICE

Tam employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.

On February 4, 2011, I served the within document(s) described as:

ANSWER OF DEFENDANT THE W. W. HENRY COMPANY TO PLAINTIFFS'
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS

on the interested parties in this action as stated below:

Brayton Purcell LLP
222 Rush Landing Road
P.O. Box 6169

Novato, CA 94948

X| (BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.

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

Executed on February 4, 2011, at San Francisco, Calif

Hiromi Nagayama
(Type or print name)

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THE W. W. HENRY COMPANY'S ANSWER TO PLAINTIFFS' COMPLAINT

| 1130199.1
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