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SF/1607370v1
SEDGWICK, DETERT, MORAN & ARNOLD LLP
CHARLES SHELDON (Bar No, 155598)
MARC BRAINICH (Bar No. 191034)
One Market Plaza ELECTRONICALLY
Steuart Tower, 8th Floor FILED
San Francisco, California 94105 Superior Court of California,
Telephone: (415) 781-7900 County of San Francisco
Facsimile: (415) 781-2635 JUN 26 2009
Attorneys for Defendant Soo axa Clerk
GENERAL ELECTRIC COMPANY Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH, et al., CASE NO, 275212
Plaintiffs, GENERAL ELECTRIC COMPANY'S
ANSWER TO COMPLAINT FOR
vs. DAMAGES AND JURY DEMAND
ASBESTOS DEFENDANTS (B*P), (ASBESTOS)
Defendants.
Defendant GENERAL ELECTRIC COMPANY (“Defendant”) answers the unverified
complaint for personal injury and loss of consortium as follows:
Under the provisions of Code of Civil Procedure § 431.30, Defendant denies each and
every and all of the allegations of said complaint and denies that plaintiffs JOYCE JUELCH and
NORMAN JUELCH, SR. (“Plaintiffs”) sustained damages in the sum or sums alleged, or in any
other sum, or at all.
FIRST AFFIRMATIVE DEFENSE
Defendant alleges that said complaint and each cause of action therein fails to state facts
sufficient to constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
said complaint are barred by the applicable statutes of limitations, including, but not limited to,
the provisions of Code of Civil Procedure §§ 335.1, 338, 340.2 and 361.
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GE'S ANSWER TO COMPLAINTSEDGWICK
FG, MORAN & ARNEL
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THIRD AFFIRMATIVE DEFENSE
Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and
laches.
FOURTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs and others were negligent or otherwise at fault in and
about the matters referred to in said complaint, and that such negligence and/or other fault bars or
diminishes Plaintiffs’ recovery against Defendant.
RIFTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs were solely negligent in and about the matters alleged in
said complaint and that such negligence on the part of Plaintiffs were the sole legal cause of the
injuries and damages complained of by Plaintiffs, if any there were.
SIXTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs assumed the risk of the matters referred to in said
complaint, that Plaintiffs knew and appreciated the nature of the risk, and that Plaintiffs
voluntarily accepted the risk.
SEVENTH AFFIRMATIVE DEFENSE
Defendant is informed and believes and thereon alleges that Plaintiffs misused and
abused the products referred to in said complaint, and failed to follow instructions, and that such
misuse, abuse and failure to follow instructions on the part of Plaintiffs proximately caused and
contributed to the injuries and damages complained of in said complaint, if any there were.
EIGHTH AFFIRMATIVE DEFENSE
Defendant alleges that if Plaintiffs sustained injuries attributable to the use of any product
manufactured, supplied, or distributed by this answering Defendant, which allegations
are expressly denied, the injuries were solely caused by and attributable to the unreasonable,
unforeseeable, and inappropriate purpose and improper use which was made of the product.
NINTH AFFIRMATIVE DEFENSE
Defendant alleges that if there was any negligence proximately causing the injuries or
2.
GE'S ANSWER TO COMPLAINT27
DGWICK . «
SF/1607370VE
damages sustained by Plaintiffs, if any, such negligence, if any, was solely that of defendants,
firms, persons, or entities other than Defendant.
TENTH AFFIRMATIVE DEFENSE
Defendant alleges that there is no privity between Plaintiffs and Defendant.
ELEVENTH AFFIRMATIVE DEFENSE
Defendant alleges that it gave no warranties, either express or implied, to Plaintiffs and
that neither Plaintiffs nor others ever notified Defendant of any claims of breach of warranty, if
any there were.
TWELFTH AFFIRMATIVE DEFENSE
Defendant alleges that said complaint and each cause of action therein is barred with
respect to Defendant by the provisions of the Workers Compensation Act, including but not
limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of California.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that if there was any negligence proximately causing the injuries or
damages, if any, sustained by Plaintiffs, such negligence, if any, is collateral negligence, as that
term is used and defined in Restatement 2d Torts, Section 426 and derivative authority,
FOURTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at the time of the matters referred to in the complaint, plaintiff
JOYCE JUELCH was employed by an employer other than this answering Defendant and was
entitled to and received workers’ compensation benefits from her employers; and that if there
was any negligence proximately causing the injuries and damages sustained by Plaintiffs, if any,
such negligence, if any, was that of plaintiff JOYCE JUELCH’s employers.
FIFTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs’ claims, and each of them, and this action, are preempted
by federal statutes and regulations governing work place exposure to asbestos.
SIXTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that the products referred to in said complaint, if manufactured by
Defendant at all, were manufactured in strict compliance with reasonably precise United States
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GE'S ANSWER TO COMPLAINT27
SEDGWICK
SF/1607370v1
government specifications, and that the hazards associated with use of the products, if any, were
known equally to the federal government and Defendant. Boyle v. United Technologies Corp.
487 U.S. 500 (1988).
SEVENTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that to the extent said complaint purports to state a cause of action or
basis for recovery under Sindeil v. Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by
Plaintiffs’ failure to join as Defendants the manufacturers of a substantial share of the asbestos
products market, to which asbestos products plaintiff JOYCE JUELCH was allegedly exposed,
thereby causing the damages alleged; and, should it prove impossible to identify the
manufacturers of the products that allegedly injured plaintiff JOYCE JUELCH, said purported
claim or cause of action is barred by the fault of Plaintiffs and their agents in making
identification of the manufacturer impossible.
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that, to the extent said complaint purports to state a cause of action or
basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing
product, it fails to state facts sufficient to constitute a cause of action in that Plaintiffs have
asserted claims for relief which, if allowed, would contravene this Defendant’s constitutional
rights to substantive due process of law, as preserved by the Fourteenth Amendment to the
Constitution of the United States and by Article 1, Section 7 of the Constitution of the State of
California.
NINETEENTH AFFIRMATIVE DEFENSE
Defendant alleges that said complaint, fo the extent that it seeks exemplary or punitive
damages pursuant to California Civil Code § 3294, violates Defendant’s right to procedural due
process under the Fourteenth Amendment of the United States Constitution, and Article 1,
Section 7 of the Constitution of the State of California, and therefore fails to state a cause of
action upon which either punitive or exemplary damages can be awarded.
TWENTIETH AFFIRMATIVE DEFENSE
Defendant alleges that said complaint, to the extent that it seeks punitive or exemplary
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damages pursuant to California Civil Code § 3294, violates Defendant’s right to protection from
“excessive fines” as provided in the Eighth Amendment of the United States Constitution and
Article I, Section 17 of the Constitution of the State of California, and violates Defendant ’s right
to substantive due process as provided in the Fifth and Fourteenth Amendments of the United
States Constitution and the Constitution of the State of California, and therefore fails to state a
cause of action supporting the punitive or exemplary damages claimed.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Defendant alleges that said complaint, and each cause of action therein, fails to state facts
sufficient to warrant an award of punitive or exemplary damages against this Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Defendant alleges that at all relevant times, plaintiff JOYCE JUELCH’s employers were
sophisticated users of asbestos-containing products, and that said employers were aware of the
dangers, if any, of asbestos-containing products, and that said employers’ negligence in providing
the products to their employees in a negligent, careless and reckless manner was a superseding
intervening cause of Plaintiffs’ injuries, if any.
TWENTY-THIRD AFFIRMATIVE DEFEN SE
Defendant alleges that at all relevant times plaintiff JOYCE JUELCH was a sophisticated
user of asbestos-containing products, that plaintiff JOYCE JUELCH was aware, or should have
been aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated
user doctrine is a complete bar to Plaintiffs’ claims against Defendant as a matter of law.
Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action
attempted to be stated and set forth against Defendant, because the injuries and damages
complained of in the complaint, if any, arose in the course and scope of plaintiff JOYCE
JUELCH’s employment by an independent contractor.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs are barred from recovery in that all products produced by
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this Defendant were in conformity with the existing state-of-the-art, and as a result, these
products were not defective in any manner.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
said complaint for negligence per se are barred by California Labor Code § 6304.5, and
derivative authority.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiffs failed to exercise due diligence to mitigate their losses,
injuries or damages, if any, and, accordingly, the amount of damages to which Plaintiffs are
entitled, if any, should be reduced by the amount of damages which otherwise would have been
mitigated.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Defendant alleges that it had no knowledge, either actual or constructive, and by the
application of reasonable, developed human skills and foresight had no reason to know of the
propensities, if any, of any product allegedly manufactured, supplied, applied and/or sold by this
Defendant to cause or contribute to the creation of medical conditions or circumstances involving
alleged injuries to the lungs, respiratory and cardiovascular systems, including cancer,
mesothelioma, or any other illness of any type whatsoever.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Defendant alleges that the provisions of California Civil Code § 1431.2 are applicable to
the Complaint-and each cause of action therein.
THIRTIETH AFFIRMATIVE DEFENSE
Defendant alleges that unforeseen and unforeseeable acts and orhissions by others
constitute a superseding, intervening cause of Plaintiffs’ injuries, if any.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant alleges that each of Plaintiffs’ claims, and this entire action, are preempted by
all applicable federal law relating to railroads, their equipment, and/or alleged injuries and
Mt ~
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damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49
US.C. §§ 20701, et seq.
THIRTY-SECOND AFFIRMATIVE DEFENSE
The matters alleged in said complaint are encompassed within and barred by a settlement
and release agreement reached by the parties, which operates as a merger and bar against any
further litigation on matters raised or potentially raised in connection with the settlement and
release.
THIRTY-THIRD AFFIRMATIVE DEFENSE
To the extent that Plaintiffs have reached an accord with Defendant regarding this
litigation and this accord was then properly satisfied, the claims, causes of action, theories of
liability and matters alleged in said complaint are barred by the doctrine of accord and
satisfaction.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs have released, settled, entered into an accord and satisfaction, or otherwise
compromised their claims herein, and accordingly, said claims are barred.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
The claims asserted in said complaint have been settled, compromised or otherwise
discharged and Defendant is due a set off.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
To the extent that Plaintiffs have previously filed a dismissal in court dismissing with
prejudice all of their asserted claims, causes of action, and other theories of liability against
Defendant, the matters alleged in said complaint are barred by retraxit.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims herein are barred based on the primary right and res judicata doctrines _
which prohibit splitting a single cause of action into successive suits, and seeking new recovery
for injuries for which the plaintiff was previously compensated by alleged joint tortfeasors,
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Defendant alleges that the causes of action, if any, attempted to be stated and set forth in
7.
GE'S ANSWER TO COMPLAINT27
QERGWICK
SF/1607370V1
said complaint are barred by applicable statutes of repose, including statutes of repose in other
states that are applicable to this action pursuant to California Code of Civil Procedure
section 361.
PRAYER
WHEREFORE, Defendant prays:
1. That Plaintiffs take nothing by reason of said complaint;
2. That Defendant be awarded costs of suit herein and such other and further relief as
the court deems just;
3. That if Defendant is found liable, the degree of the responsibility and liability for
the resulting damages be determined, and that Defendant be held liable only for that portion of
the total damages in proportion to its liability for the same.
JURY DEMAND
GE hereby demands a trial by jury in the above-entitled action and estimates that the
length of trial will be six to eight weeks in duration.
DATED: June 24, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP
By: :
Marc Brainich
Attorneys for Defendant
GENERAL ELECTRIC COMPANY
8.
GE'S ANSWER TO COMPLAINT27
PERGWICK 35
PROOF OF SERVICE
Jam a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is Sedgwick, Detert, Moran & Armold LLP, One Market
Plaza, Steuart Tower, Sth Floor, San Francisco, California 94105. On the date executed below, I
electronically served the document(s) via LexisNexis File & Serve described as:
DEFENDANT GENERAL ELECTRIC COMPANY’S ANSWER TO COMPLAINT FOR
DAMAGES AND JURY DEMAND (ASBESTOS)
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on June 26, 2009, at San Francisco, California.
PROOF OF SERVICE
SF/1607805v1
Preview
0 me RD A FF Ww VY NR NR RB NR Re A & BN = SF © we WA HR BB Bw N & DO 26 27 FREMIOK IT, WORAN A SF/1607370v1 SEDGWICK, DETERT, MORAN & ARNOLD LLP CHARLES SHELDON (Bar No, 155598) MARC BRAINICH (Bar No. 191034) One Market Plaza ELECTRONICALLY Steuart Tower, 8th Floor FILED San Francisco, California 94105 Superior Court of California, Telephone: (415) 781-7900 County of San Francisco Facsimile: (415) 781-2635 JUN 26 2009 Attorneys for Defendant Soo axa Clerk GENERAL ELECTRIC COMPANY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH, et al., CASE NO, 275212 Plaintiffs, GENERAL ELECTRIC COMPANY'S ANSWER TO COMPLAINT FOR vs. DAMAGES AND JURY DEMAND ASBESTOS DEFENDANTS (B*P), (ASBESTOS) Defendants. Defendant GENERAL ELECTRIC COMPANY (“Defendant”) answers the unverified complaint for personal injury and loss of consortium as follows: Under the provisions of Code of Civil Procedure § 431.30, Defendant denies each and every and all of the allegations of said complaint and denies that plaintiffs JOYCE JUELCH and NORMAN JUELCH, SR. (“Plaintiffs”) sustained damages in the sum or sums alleged, or in any other sum, or at all. FIRST AFFIRMATIVE DEFENSE Defendant alleges that said complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by the applicable statutes of limitations, including, but not limited to, the provisions of Code of Civil Procedure §§ 335.1, 338, 340.2 and 361. -1. GE'S ANSWER TO COMPLAINTSEDGWICK FG, MORAN & ARNEL SF/1607370v1 Oo © IW DW FF Ww VY NW NM NB YN RD Rm mm a DA Bw FF Bw NH ™ DBD OBO SB aw DA wR RP BW wR sm S 27 28 THIRD AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and laches. FOURTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs and others were negligent or otherwise at fault in and about the matters referred to in said complaint, and that such negligence and/or other fault bars or diminishes Plaintiffs’ recovery against Defendant. RIFTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs were solely negligent in and about the matters alleged in said complaint and that such negligence on the part of Plaintiffs were the sole legal cause of the injuries and damages complained of by Plaintiffs, if any there were. SIXTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs assumed the risk of the matters referred to in said complaint, that Plaintiffs knew and appreciated the nature of the risk, and that Plaintiffs voluntarily accepted the risk. SEVENTH AFFIRMATIVE DEFENSE Defendant is informed and believes and thereon alleges that Plaintiffs misused and abused the products referred to in said complaint, and failed to follow instructions, and that such misuse, abuse and failure to follow instructions on the part of Plaintiffs proximately caused and contributed to the injuries and damages complained of in said complaint, if any there were. EIGHTH AFFIRMATIVE DEFENSE Defendant alleges that if Plaintiffs sustained injuries attributable to the use of any product manufactured, supplied, or distributed by this answering Defendant, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable, unforeseeable, and inappropriate purpose and improper use which was made of the product. NINTH AFFIRMATIVE DEFENSE Defendant alleges that if there was any negligence proximately causing the injuries or 2. GE'S ANSWER TO COMPLAINT27 DGWICK . « SF/1607370VE damages sustained by Plaintiffs, if any, such negligence, if any, was solely that of defendants, firms, persons, or entities other than Defendant. TENTH AFFIRMATIVE DEFENSE Defendant alleges that there is no privity between Plaintiffs and Defendant. ELEVENTH AFFIRMATIVE DEFENSE Defendant alleges that it gave no warranties, either express or implied, to Plaintiffs and that neither Plaintiffs nor others ever notified Defendant of any claims of breach of warranty, if any there were. TWELFTH AFFIRMATIVE DEFENSE Defendant alleges that said complaint and each cause of action therein is barred with respect to Defendant by the provisions of the Workers Compensation Act, including but not limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of California. THIRTEENTH AFFIRMATIVE DEFENSE Defendant alleges that if there was any negligence proximately causing the injuries or damages, if any, sustained by Plaintiffs, such negligence, if any, is collateral negligence, as that term is used and defined in Restatement 2d Torts, Section 426 and derivative authority, FOURTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the matters referred to in the complaint, plaintiff JOYCE JUELCH was employed by an employer other than this answering Defendant and was entitled to and received workers’ compensation benefits from her employers; and that if there was any negligence proximately causing the injuries and damages sustained by Plaintiffs, if any, such negligence, if any, was that of plaintiff JOYCE JUELCH’s employers. FIFTEENTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs’ claims, and each of them, and this action, are preempted by federal statutes and regulations governing work place exposure to asbestos. SIXTEENTH AFFIRMATIVE DEFENSE Defendant alleges that the products referred to in said complaint, if manufactured by Defendant at all, were manufactured in strict compliance with reasonably precise United States -3- GE'S ANSWER TO COMPLAINT27 SEDGWICK SF/1607370v1 government specifications, and that the hazards associated with use of the products, if any, were known equally to the federal government and Defendant. Boyle v. United Technologies Corp. 487 U.S. 500 (1988). SEVENTEENTH AFFIRMATIVE DEFENSE Defendant alleges that to the extent said complaint purports to state a cause of action or basis for recovery under Sindeil v. Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by Plaintiffs’ failure to join as Defendants the manufacturers of a substantial share of the asbestos products market, to which asbestos products plaintiff JOYCE JUELCH was allegedly exposed, thereby causing the damages alleged; and, should it prove impossible to identify the manufacturers of the products that allegedly injured plaintiff JOYCE JUELCH, said purported claim or cause of action is barred by the fault of Plaintiffs and their agents in making identification of the manufacturer impossible. EIGHTEENTH AFFIRMATIVE DEFENSE Defendant alleges that, to the extent said complaint purports to state a cause of action or basis for recovery upon lack of identification of the manufacturer of the alleged injury-causing product, it fails to state facts sufficient to constitute a cause of action in that Plaintiffs have asserted claims for relief which, if allowed, would contravene this Defendant’s constitutional rights to substantive due process of law, as preserved by the Fourteenth Amendment to the Constitution of the United States and by Article 1, Section 7 of the Constitution of the State of California. NINETEENTH AFFIRMATIVE DEFENSE Defendant alleges that said complaint, fo the extent that it seeks exemplary or punitive damages pursuant to California Civil Code § 3294, violates Defendant’s right to procedural due process under the Fourteenth Amendment of the United States Constitution, and Article 1, Section 7 of the Constitution of the State of California, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. TWENTIETH AFFIRMATIVE DEFENSE Defendant alleges that said complaint, to the extent that it seeks punitive or exemplary 4 GE'S ANSWER TO COMPLAINTre OOO eS OK moo Oo mw ND A Be Nn NY NN WY YY Rw BB NHN | Ss 26 27 RERGWICK . 5 SF/1607370v1 damages pursuant to California Civil Code § 3294, violates Defendant’s right to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and Article I, Section 17 of the Constitution of the State of California, and violates Defendant ’s right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of California, and therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. TWENTY-FIRST AFFIRMATIVE DEFENSE Defendant alleges that said complaint, and each cause of action therein, fails to state facts sufficient to warrant an award of punitive or exemplary damages against this Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE Defendant alleges that at all relevant times, plaintiff JOYCE JUELCH’s employers were sophisticated users of asbestos-containing products, and that said employers were aware of the dangers, if any, of asbestos-containing products, and that said employers’ negligence in providing the products to their employees in a negligent, careless and reckless manner was a superseding intervening cause of Plaintiffs’ injuries, if any. TWENTY-THIRD AFFIRMATIVE DEFEN SE Defendant alleges that at all relevant times plaintiff JOYCE JUELCH was a sophisticated user of asbestos-containing products, that plaintiff JOYCE JUELCH was aware, or should have been aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a complete bar to Plaintiffs’ claims against Defendant as a matter of law. Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56. TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action attempted to be stated and set forth against Defendant, because the injuries and damages complained of in the complaint, if any, arose in the course and scope of plaintiff JOYCE JUELCH’s employment by an independent contractor. TWENTY-FIFTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs are barred from recovery in that all products produced by 5. GE'S ANSWER TO COMPLAINTRERGNICK 95 | SE/1607370v1 oO OD wm NAR RF WN 27 | this Defendant were in conformity with the existing state-of-the-art, and as a result, these products were not defective in any manner. TWENTY-SIXTH AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint for negligence per se are barred by California Labor Code § 6304.5, and derivative authority. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs failed to exercise due diligence to mitigate their losses, injuries or damages, if any, and, accordingly, the amount of damages to which Plaintiffs are entitled, if any, should be reduced by the amount of damages which otherwise would have been mitigated. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Defendant alleges that it had no knowledge, either actual or constructive, and by the application of reasonable, developed human skills and foresight had no reason to know of the propensities, if any, of any product allegedly manufactured, supplied, applied and/or sold by this Defendant to cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lungs, respiratory and cardiovascular systems, including cancer, mesothelioma, or any other illness of any type whatsoever. TWENTY-NINTH AFFIRMATIVE DEFENSE Defendant alleges that the provisions of California Civil Code § 1431.2 are applicable to the Complaint-and each cause of action therein. THIRTIETH AFFIRMATIVE DEFENSE Defendant alleges that unforeseen and unforeseeable acts and orhissions by others constitute a superseding, intervening cause of Plaintiffs’ injuries, if any. THIRTY-FIRST AFFIRMATIVE DEFENSE Defendant alleges that each of Plaintiffs’ claims, and this entire action, are preempted by all applicable federal law relating to railroads, their equipment, and/or alleged injuries and Mt ~ -6- GE'S ANSWER TO COMPLAINT27 SE/1607370v1 damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49 US.C. §§ 20701, et seq. THIRTY-SECOND AFFIRMATIVE DEFENSE The matters alleged in said complaint are encompassed within and barred by a settlement and release agreement reached by the parties, which operates as a merger and bar against any further litigation on matters raised or potentially raised in connection with the settlement and release. THIRTY-THIRD AFFIRMATIVE DEFENSE To the extent that Plaintiffs have reached an accord with Defendant regarding this litigation and this accord was then properly satisfied, the claims, causes of action, theories of liability and matters alleged in said complaint are barred by the doctrine of accord and satisfaction. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs have released, settled, entered into an accord and satisfaction, or otherwise compromised their claims herein, and accordingly, said claims are barred. THIRTY-FIFTH AFFIRMATIVE DEFENSE The claims asserted in said complaint have been settled, compromised or otherwise discharged and Defendant is due a set off. THIRTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiffs have previously filed a dismissal in court dismissing with prejudice all of their asserted claims, causes of action, and other theories of liability against Defendant, the matters alleged in said complaint are barred by retraxit. THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims herein are barred based on the primary right and res judicata doctrines _ which prohibit splitting a single cause of action into successive suits, and seeking new recovery for injuries for which the plaintiff was previously compensated by alleged joint tortfeasors, THIRTY-EIGHTH AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in 7. GE'S ANSWER TO COMPLAINT27 QERGWICK SF/1607370V1 said complaint are barred by applicable statutes of repose, including statutes of repose in other states that are applicable to this action pursuant to California Code of Civil Procedure section 361. PRAYER WHEREFORE, Defendant prays: 1. That Plaintiffs take nothing by reason of said complaint; 2. That Defendant be awarded costs of suit herein and such other and further relief as the court deems just; 3. That if Defendant is found liable, the degree of the responsibility and liability for the resulting damages be determined, and that Defendant be held liable only for that portion of the total damages in proportion to its liability for the same. JURY DEMAND GE hereby demands a trial by jury in the above-entitled action and estimates that the length of trial will be six to eight weeks in duration. DATED: June 24, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP By: : Marc Brainich Attorneys for Defendant GENERAL ELECTRIC COMPANY 8. GE'S ANSWER TO COMPLAINT27 PERGWICK 35 PROOF OF SERVICE Jam a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Sedgwick, Detert, Moran & Armold LLP, One Market Plaza, Steuart Tower, Sth Floor, San Francisco, California 94105. On the date executed below, I electronically served the document(s) via LexisNexis File & Serve described as: DEFENDANT GENERAL ELECTRIC COMPANY’S ANSWER TO COMPLAINT FOR DAMAGES AND JURY DEMAND (ASBESTOS) on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 26, 2009, at San Francisco, California. PROOF OF SERVICE SF/1607805v1