Answer: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                John RB. Brydon [Bar No. 083365]
135 Main Street, 20th Floor ELECTRONICALLY
San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 Superior Court of California,
Facsimile: (415) 808-0333 County of San Francisco

JUL 01 2009
Attorneys for Defendant GORDON PARK-LI, Clerk
UNION CARBIDE CORPORATION BY: CHRISTLE ARRIOLA

Deputy Clerk

SUPERIOR COURT ~ STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO ~ UNLIMITED JURISDICTION

JOYCE JUELCH and NORMAN JUELCH, | (ASBESTOS)
SR, Case No. CGC-09-275212

Plaintiff(s), : ANSWER OF UNION CARBIDE
vs. CORPORATION TO COMPLAINT FOR

PERSONAL INJURY ~ ASBESTOS
ASBESTOS DEFENDANTS (B*P),

Defendants.

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COMES NOW Defendant UNION CARBIDE CORPORATION (“Union Carbide” or

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Defendant”) denying liability for itself and any alternate entities named in the complaint,

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and answering plaintiff's Complaint for Personal Injury - Asbestos (hereinafter the

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“Complaint’), on file herein, admits, denies, and alleges as follows:

GENERAL DENIAL
Under the provisions of Section 431.30(d), California Code of Civil Procedure, this

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answering defendant denies each and every allegation of plaintiff's Complaint and the

22 ||whole thereof, and denies that plaintiff has been damaged in any sum or amount

23 || whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind in
24 |lany amount whatsoever from Union Carbide,

25 RESERVATION OF RIGHT TO TRIAL BY JURY

26 Union Carbide reserves the right to a trial by jury.
27
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HUGO & PARKER .
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BRYDON

Huco & PARKER:
1a Maen Sraeer

2h FLOR
San Francisco, CA 9105

AFFIRMATIVE DEFEN
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action

‘This answering defendant alleges that plaintiff's Complaint and each of the causes of]
action for relief alleged therein, fails to state a cause-of action against this answering
defendant.

SECOND AFFIRMATIVE DEFENSE
Contravention of Defendant's Constitutional Rights to Due Process of Law

The Complaint and each cause of action thereof, which is admittedly based upon al
lack of identification of the manufacturer of, and contractor using or distributing the
alleged injury-causing product, fails to state facts sufficient to constitute a cause of action in|
that plaintiff has asserted a claim for relief which, if granted, would contravene defendant's
constitutional rights to substantive and procedural due process of law as preserved for'
defendant by the Fourteenth Amendment of the United States Constitution and by Article
1 Section 7, of the Constitution of the State of California.

THIRD AFFIRMATIVE DEFENSE
Denial of Defendant's Constitutional Rights to Equal Protection of the Laws

The Complaint, and each cause of action thereof, fails to state facts sufficient to}
constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
would constitute a denial by this Court of defendant's constitutional right to. equal
protection of the laws as preserved by the Fourteenth Amendment. of the United States
Constitution and by Article | Section 7, of the Constitution of the State of California.

FOURTH AFFIRMATIVE DEFENSE .

Unconstitutional Taking of Private Property for Public Use Without Just Compensation
The Complaint, and each cause of action thereof, which is admittedly based upon a)

lack of identification of the manufacturer, and contractor using or distributing the alleged|

injury-causing product, fails to state facts sufficient to constitute a cause of action in that!

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BRYDON
HUGG & PARKER
TES MAME SMREEE
20° FLOOR
San Francisco, CA 94705,

plaintiff has asserted. claims for relief which, if granted, would constitute the taking of

private property for public use without just compensation in contravention of the Fifth and

Fourteenth Amendments to the United States.Constitution and by Article I, Section 7 and|

19, of the Constitution of the State of California, and the applicable California statutes.
FIFTH AFFIRMATIVE DEFENSE

Comparative Fault
This answering defendant alleges that the damages, if any, complained of by

plaintiff, were 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 Union Carbide, and that said negligence, fault, breach of contract
and/or strict liability comparatively reduces the percentage of any negligence, fault, breach
of contract or strict liability for which Union Carbide is legally responsible, if any be found,
which liability this defendant expressly denies. Further, this answering defendant alleges!

that plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents

complained of herein, and said incidents and the injuries and damages, if any, sustained by
plaintiff, were directly and proximately caused and contributed to by the carelessness and|
negligence of said plaintiff.
SIXTH AFFIRMATIVE DEFENSE
wit egligenc

This answering defendant. alleges that plaintiff did not exercise ordinary care,
caution or prudence to avoid the incidents complained of herein, and said incidents and the
injuries and damages, if any, sustained by plaintiff, were directly and proximately caused
and contributed to by the carelessness and negligence of said plaintiff.

SEVENTH AFFIRMATIVE DEFENSE
ertal

This answering defendant alleges that plaintiffs Complaint and all purported causes

of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on

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BRYON
HUGO & PARKER
105 MAIN SeneRT
20° FLGOR
San Feanaiica, CA S108

any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches

This answering defendant alleges that plaintiff unreasonably delayed in bringing
this action and that such delay substantially prejudiced defendant, and that this action is|
therefore barred by the Doctrine of Laches.

NINTH AFFIRMATIVE DEFENSE
Statute of Limitations

This answering defendant alleges that plaintiff's Complaint and the purported|
causes of action therein are barred by all statutes of limitation, including, but not limited to,
the provisions of California Code of Civil Procedure §§.338, 338.1, 339(1), 340, 340(3).and)

340.2, 343, 352, 366.1, 366.2 and California Commercial Code §.2725. Plaintiff's claims are
further barred by the statute of limitations of states other than California pursuant to
California Code of Civil Procedure § 361.

TENTH AFFIRMATIVE DEFENSE

Failure to Mitigate
This answering defendant alleges that plaintiff failed to mitigate damages which)

plaintiff contends he suffered, and plaintiff is therefore barred from any recovery!
whatsoever, or alternatively, any damages found must be reduced in proportion to such
failure to mitigate.
ELEVENTH ATEIRMATIVE DEFENSE
toppel

This answering defendant alleges that as a result of the acts, conduct and/or’
omissions of plaintiff and his agents, or any of them, and each cause of action presented|

therein, is barred under the Doctrine of Estoppel.

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BRYDON
HUGO & PARKER,
1SMamSrter
2a FLOOR
Sats Francisco, CA. 94108

TWELFTH TIVE DEFENSE
Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action

alleged therein,

THIRTEENTH AFFIRMATIVE DEFENSE
Acquiese
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of this answering defendant, thus barring plaintiff from any relief as
prayed for herein.
FOURTEENTH AFFIRMATIVE DEFENSE

Notice of Dangers
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, storage’
and in place asbestos of the products, substances, equipment and at premises in which
exposure is claimed as is described in the Complaint and is therefore barred from any relief|
prayed for.
FIFTEENTH AFFIRMATIVE DEFENSE
Compli ith 8

This answering defendant alleges that all of ites conduct and activities as alleged in
the plaintiffs Complaint conformed to statutes, government regulations, and industry
standards based upon the state of knowledge existing at all relevant.times.

SIXTEENTH AFFIRMATIVE DEFENSE

Compliance with Specifications
This answering defendant alleges that the asbestos products or asbestos used or in

place at any premises, if any, for which Union Carbide had any legal responsibility, were

manufactured, packaged, distributed or sold in accordance with contract specifications)

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HUGO & PARKER
BEMAIN STREET
200 FLOOR
Sens Sranetsco, CA 94105

imposed by its co-defendants, by the U.S. Government, by the State of California, by
plaindiff’s employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE
Conspir
This answering defendant alleges that Union Carbide has no liability for the acts,

omissions or otherwise of any other defendant or entity because Union Carbide did not
become legally responsible for the acts. of any such defendant, nor entity, by any’
communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor
is, a conspirator nor co-conspirator with any other defendant or entity.
EIGHTEENTH AFFIRMATIVE DEFENSE
State-of-the-Art
This answering deferdant alleges that all of its activities, products, materials and its

premises at issue here at all times were conducted, used, produced, marketed, and|
operated in conformity with the existing scientific, medical industrial hygiene and
consumer knowledge, art and practice and state-of-the-art.
NINETEENTH AFFIRMATIVE DEFENSE
No Foreseeable Risk to Plaintiff

The state of the medical, scientific, and industrial knowledge and practice was at all
material times such that defendant neither breached any alleged duty owed plaintiff, nor
knew, nor could have known, that its activities, materials, products, activities or premises!
presented a foreseeable risk of harm to plaintiff in the normal and expected course of such
activities and use of such materials and products.

TWENTIETH AFFIRMATIVE DEFENSE
No Right to Control

This answering defendant. alleges that any loss, injury, or damage incurred by
Plaintiff was proximately and legally caused. by the negligent or willful acts or omissions of

parties which Union Carbide neither controlled, nor had the right to control, and was.not

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HuGo & PARKER,
135 Main’ Sincere
2 FLOOR
San Frameisca, CA 96108

proximately caused by any acts, omissions, or other conduct of Union Carbide.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated|

and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure!
of the State of California and/or other statutes of the State of California, including without]
limitation C.C.P. § 338(d).

TWENTY-SECOND AFFIRMATIVE DEFENSE

Misuse and Improper Use of Products

This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which Union Carbide had any)
legal responsibility, which allegations are expressly herein denied, the injuxies were solely!
caused by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose
and improper use and abuse which was made of said product by persons or entities other
than Union Carbide,

TWENTY-THIRD APFIRMATIVE DEFENSE
Due Care and Diligence

This answering defendant alleges that Union Carbide exercised due care and

diligence in all of the matters alleged in the Complaint, and no act or omission by Union
Carbide was the proximate cause of any damage, injury or loss to plaintiff.
TWENTY-FOURTH AFFIRMATIVE DEFENSE.
Alteration and Misuse of Product

This answering defendant alleges that an insubstantial amount, if any at all, of the

products containing asbestos distributed, used, supplied by defendant or used or in place!
at any premises owned or controlled by defendant, were not disturbed or used in the
presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered

by others and/or used in a manner inconsistent with the labeled directions.

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Huo & Parker
125 Main Sager
20" Fook
San Pransisco, CA 98105

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Equal or Greater Knowledge of Hazards
This answering defendant alleges that any and all products containing asbestos|

used, distributed or supplied by defendant were distributed or supplied to, or for, persons|
or entities who had knowledge with respect to the hazards, if any, resulting from exposure!
to products containing asbestos, which knowledge is equal to or greater than thel
knowledge of Union Carbide.
TWENTY-SIXTH APFIRMATIVE DEFENSE
Other Parties’ Liability and Negligence

This 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 Union Carbide.
TWENTY-SEVENTH AFFIRMATIVE DEPENSE
Apportionment and Offset

This answering defendant is informed and believes and thereon alleges that

plaintiff's acts and omissions, including plaintiff's agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court!
apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset against
any damages awarded to plaintiff.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Contribution/Equitable Indemnity
This answering defendant alleges, in the event it is held liable to Plaintiff, any such

ability is expressly herein denied, and any other co-defendants are likewise held lable,
Union Carbide is entitled to a percentage contribution of the total liability from said. co-

defendants in accordance with the principles of equitable indemnity and comparative|

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HUGO & PaRKER.
135 Main sreeey
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San Fravieisco, CA 96105

contribution.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Assumption of Risk by Plaintiff's Emplover(s)

This answering defendant alleges that the Complaint and each cause of action!
alleged therein are barred on the grounds that plaintiff's employer or employers knowingly
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and
voluntarily and knowingly assumed all of the risks incident to.said operations, acts and
conduct at the time and place mentioned in the Complaint.

THIRTIETH APPIRMATIVE DEPENSE

Assumption of Risk
This answering defendant alleges plaintiff assumed the risk of the matters referred)
to in his Complaint and that plaintiff knew and appreciated the nature of the risk and al
the plaintiff voluntarily accepted this risk. .
THIRTY-FIRST AFFIRMATIVE DEFENSE

No Market Share

This answering defendant alleges that Union Carbide did not have an appreciable
share of the market for the asbestos-containing products which allegedly caused plaintiffs!
injuries, which occurrence Union Carbide expressly denies. Accordingly, Union Carbide
may not be held liable to plaintiff based on its alleged share of the applicable product!
market.

THIRTY SECOND AFFIRMATIVE DEFENSE
Plaintiff Fails to Join a Substantial Market Share

The Complaint, and each cause-of action thereof, fails to state facts sufficient to
constitute a cause of action against this answering defendant, in that defendant has failed to
join a substantial market share of the producers or products to which plaintiff was

allegedly exposed.

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BRYDON

Hua & PARKER
T3SMAIN STREET
20" BLOOR.

Gan Fravcises, CA $4105

THIRTY-THIRD AFFIRMATIVE DEFENSE
Insufficient Facts to Show Substantial Market Share of this Defendant

To the extent the Complaint asserts defendant’s alleged “alternative,” “market
share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a
cause of action against this defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
Independent, Intervent iperseding Cai

This answering defendant alleges that if plaintiff suffered any injuries attributable to
the use of any product containing. asbestos which was used, distributed or sold by
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 defendant, Defendant's. actions, if any, were superseded|
by the negligence and wrongful conduct of others,

THIRTY-FIFTH AFFIRMATIVE DEFENSE
Not tantial Factor

This answering defendant alleges that the Complaint and each cause of action)
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiffs Complaint, if any, were not a substantial]
factor in. bringing about the injuries and damages complained of by plaintiff and-did not!
increase the risk that plaintiff would suffer the injuries and damages complained of.

THIRTY-SIXTH AFFIRMATIVE DEFENSE
Insufficient Exposure

Any exposure of plaintiff to defendant's activities, products or exposure to asbestos)

or asbestos-containing products at Union Carbide’s premises was so minimal as to be
insufficient to. establish by ‘a reasonable degree of probability that any such product caused

any alleged injury, damage, or loss to plaintiff.

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Huco & PARKER
5 MAIN STREET
APIROOR
Son Francisca, CA 94105

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

No Successor Liability
This answering defendant alleges that Union Carbide has no liability for the acts,

omissions or otherwise of any other defendant or any other entity because Union Carbide

did nat become legally responsible for the acts of any such defendant or entity given the
facts and circumstances of the pertinent transactions and never was, nor is, a successor-in-|
interest, a successor-in-liability or an allernate entity for any other user, manufacturer,
supplier, seller, distributor or premises holder. relating to asbestos or asbestos-containing)
products.

THIRTY-EIGHTHL AFFIRMATIVE DEFENSE

La Privi

This answering defendant alleges that plaintiff has failed to state a cause of action in|
that the Complaint fails to allege that there was privity between defendant on the one
hand, and plaintiff on the other, and furthermore, such privity did-not exist between!
defendant on the one hand, and plaintiff on the other.

THURTY-NINTH AFFIRMATIVE DEFENSE

Secondary Assumption of Risk

This answering defendant alleges that. any and all products containing asbestos
used, distributed or supplied by defendant were used, distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from)

exposure to products containing asbestos, which is equal to or greater than, the knowledge

of Union Carbide, ie. Union Carbide’s liability should be reduced in proportion to the
knowledge of plaintiff.
FORTIETH AFFIRMATIVE DEFENSE
Civil Code Section 1431,

This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) ave applicable to plaintiff's Complaint

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HUGO & Parker
135. Mou Steet
20 KR
San Frasedsco, CA 94905

and to each cause of action therein,

FORTY-FIRST AFFIRMATIVE DEFENSE

Workers’ Compensation Exclusive Remedy

This answering defendant alleges that the Complaint is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,
California Labor Code §§ 3600, et seq.

FORTY-SECOND AFFIRMATIVE DEFENSE
Offset for Workers’ Compensation Benefits

This answering defendant alleges that to the-extent plaintiff herein recovered, or in|
the future may recover, amy monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by
defendant for a credit or offset.

FORTY-THIRD AFFIRMATIVE DEBENSE

‘ess Co! al Indemni

This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a Union Carbide premises, Union Carbide contracted with
plaintiff and/or plaintiff's 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 Union Carbide, and to hold Union Carbide harmless, for all
responsibility and liability arising out of said work, and/or any injuries allegedly incurred)
by plaintiff as.a result of any of said work. Union Carbide reserves all rights to assert these]
provisions of contractual indemnity,

FORTY-FOURTH AFFIRMATIVE DEFENSE

Consent

This answering defendant alleges that at all times.mentioned, plaintiff consented to

the alleged acts or omissions of Union Carbide.

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BRYDON

Hugo & PARKER
155 Matwsineer
20M BLOG
Sian rancisen, CA 96105,

FORTY-FIFTH AFFIRMATIVE DEFENSE.
Unusual Susceptibility

This answering defendant alleges that each of plaintiff's injuries and damages, i

any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which Union Carbide is'
not liable.
EFORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith

This answering defendant alleges that plaintiff's claim for punitive damages is|

barred because Union Carbide. at all times and places mentioned in the Complaint acted
reasonably and in good faith, and without malice or oppression towards the plaintiff.
FORTY-S) TH AFF TIVE DEFENSE
Sophisticated User
This answering Defendant alleges that, as the California Supreme Court ruled in.
Johnson vu. American Standard (2008) 43 Cal. 56, UNION CARBIDE. was under no legal
duty to warn plaintiff of the hazard associated with the use of products containing asbestos
or their existence at any premises owned, operated, controlled or otherwise by UNION
CARBIDE, as purchasers of said products, the plaintiff, plaintiff's employers, his unions,
and/or certain 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 plaintiff's damages, if any. :
FORTY-EIGHTH AFFIRMATIVE DEFENSE
Work Pr jon

This answering defendant alleges that plaintiffs employer(s) was/were advised and

warned of any potential hazards and/or dangers associated with the normal and

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BRYDON

HUGO & PARKER
135 Main Stacey
oe FLOOR
San Francisco, CA S105

foreseeable conduct with, or storage and disposal of the products referred to in the
Complaint, in a manner which was adequate notice to an industrial user of such product to
enable it to inform its employees to take appropriate work precautions to prevent injurious)
exposure.
FORTY-NINTH AFFIRMATIVE DEFENSE
Failure to Join Indispensable Parties
Plaintiff herein has. failed to join indispensable parties (California Code of Civil

Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein,
FIFTIETH AFFIRMATIVE DEFENSE
No Standing Under California Civil Code §§ 1708-1710

Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of
warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and]
therefore the Complaint and each cause of action. thereof fails to state facts sufficient to
constitute a cause of action against this answering defendant.

FIPTY-FIRST ARFIRMA’ DEFENSE

Plaintiff is not a Real Party in Interest
Plaintiff, and each of them, herein lacks legal capacity to sue and is nota real party,
in interest and is thereby precluded from any recovery whatsoever as prayed for herein.
FIFTY-SECOND AFFIRMATIVE DEFENSE
Eraud and Conspiracy are Not Separate Forms of Damages

Fraud and conspiracy do not constitute a separate and distinct form of damages

from general damages, and, therefore, the prayer for fraud and conspiracy in addition to
general. damages does not sufficiently support or constitute.a separate claim for damages:
against this answering defendant, but is simply cumulative. and included in general

damages.

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BRYDON
HuGo & PARKER
LB MaInsreeer
BO" RLCOR
San Francisca, CA 94105

EIETY-THIRD AFFIRMATIVE DEFENSE
Failure to Allege with Particularity

This answering defendant alleges that plaintiff's Complaint fails to-set out its claims!
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims
becomes known,

FIFTY-FOURTH AFFIRMATIVE DEFENSE
itive Damage Prohibited

This answering defendant alleges that plaintiff's Complaint fails to state facts
sufficient to support an award of punitive or exemplary damages against Union Carbide.
‘The Complaint, to the extent that it seeks exemplary or punitive damages, violates Unio:
Carbide's right to procedural due process under the Fourteenth Amendment of the United
States Constitution, and the Constitution of the State of California, and fails to state a cause|
of action upon which either punitive or exemplary. damages can be awarded.

FIFTY-FIFTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited

This answering defendant alleges that the Complaint, to the extent that-it seeks
punitive or exemplary damages, violates Union Carbide’s right to protection from
excessive fines as provided in the Eighth Amendment of the United States Constitution arid.
Article I, Section 17 of the Constitution of the State of California, and violates Union|
Carbide’s right to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States and California Constitutions, and thus fails to state al
cause of action supporting an award of punitive or exemplary damages.

HIETY-SDCTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited

The causes of action asserted herein by plaintiff fail to state facts sufficient. tol

constitute a cause of action in that plaintiff has asserted claims for punitive damages which,

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Brypon
Huo & PARKER
185 Mate SttieeT
ROBIE
San Francisco, CA 94105

if granted, would violate the prohibition against laws impairing the obligation of contracts
set forth in Article I, Section 10, of the United States Constitution.
PIFTY-SEVENTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited

Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is
barred by the “double jeopardy” clause of the Fifth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment.

FIPTY-EIGHTH AFFIRMATIVE DEFENSE
Negligent Hiring Claim Invalid

An employee of an independent contractor may not pursue a claim for negligent

hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal,
4th 1235 (2001).

ELETY-NINTH AFFIRMATIVE DEFENSE
, Right to Amen
This defendant will assert any and all additional defenses that arise during the
course of this litigation and reserves the right to amend its answer to assert such defenses,
SIXTIETH AFFIRMATIVE DEFENSE
Alternate Unknown Cause

The alleged injuries and damages, if any, may be in whole or in part due to injury,
disease or cause other than as alleged.

SIXTY-FIRST AFFIRMATIVE DEFENSE

No Concert of Action

There is no concert of action between defendant and any of the other named|

defendants. Defendants are. not joint tortfeasors and accordingly, defendant may not bel
held jointly and severally liable with the other named defendants.
PRAYER
WHEREFORE, this answering defendant prays for judgment as follows:

16

ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSme Vw we NN DR SS FF BS NOH

Ms

& OO N

BRYBON
HUGO & PARKER
Ta3 Main Srager
‘205 FLOR
Sart Prancisen, CA 94105

1 That Plaintiff take nothing by reason of their Complaint or any claims stated
therein;

2. That Plaintif’s Complaint and each cause of action contained therein be
dismissed with prejudice against Union Carbide;

3. For costs of suit; and

4, For such other and further relief as the Court deems just and appropriate in|

the circumstances.
Dated: July 1, 2009 BRYDON HUGO & PARKER

By: __/s/ John R. Brydon

john R. Brydon.

Robert C. Crane

Attorneys for Defendant

UNION CARBIDE CORPORATION

7

ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSoe NOR OH BW Ne

ret
ms OO

Oo eo SND WH SB WY HN

MmoOoN YN nN mM oh
BRRRRRKSRB

ouce & Ni Sr.
San Francisco County Superior Court Case No. CGC-09-275212
LexisNexis Transaction No, 25918500

PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and nota
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, Caiifarnia 94105, On the date below, I served the following:

UNION CARBIDE CORPORATION'S ANSWER TO COMPLAINT FOR
PERSONAL INJURY ~ ASBESTOS

on the following:

BRAYTON PURCELL LLP And see LexisNexis Service List
222 Rush Landing Road .

Novato, CA 949.

Fax: (415) 898-1247

x By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
muntber(s) set forth above on this date before 5:00 p.m.

° By placing the docurnent(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm's ordinary business practices. I am readily familiar with the firm's
practice of collection and | processing correspondence for mailing. Under
that practice it would be deposited with U.S, Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. I am aware that on motion. of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in

idavit.

© By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery.and depositing same with fees
thereupon prepaid, in a facility regularly maintained by Federal Express,
addressed as set forth above. *

o By causing personal delivery of the document(s) listed above to the
person(s) at the address(es) set forth above.

Tdeclare under Renal of perjury that the above is true and correct.
Executed on July 1, 2009, at San Francisco, California.

ANALISE MARCUS

1

PROOF OF SERVICE