Answer: PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al

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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 MAY 13 2009
GORDON PARK-LI, Clerk

Attorneys for Defendant BY: EDNALEEN JAVIER

GENERAL ELECTRIC COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

PAUL VAN DEGRIFT, CASE NO. 275076
Plaintiff, GENERAL ELECTRIC COMPANY'S
ANSWER TO COMPLAINT FOR
vs. DAMAGES
ASBESTOS DEFENDANTS (BP), {ASBESTOS)
Defendants.

Defendant GENERAL ELECTRIC COMPANY (“Defendant”) answers the unverified
complaint (“complaint”) of plaintiff PAUL VAN DEGRIFT (“Plaintiff”) for personal injury as
follows:

Under the provisions of Code of Civil Procedure Section 431.30, Defendant denies each
and every and all of the allegations of said complaint and denies that Plaintiff 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

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said complaint are barred by the applicable statutes of limitations, including, but not limited to,
the provisions of Code of Civil Procedure sections 335.1, 338, 340.2 and 361.
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 Plaintiff 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 Plaintiff's recovery against Defendant.

FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff was solely negligent in and about the matters alleged in
said complaint and that such negligence on the part of Plaintiff was the sole legal cause of the
injuries and damages complained of by Plaintiff, if any there were,

SIXTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff assumed the risk of the matters referred to in said
complaint, that Plaintiff knew and appreciated the nature of the risk, and that Plaintiff voluntarily
accepted the risk.

SEVENTH AFFIRMATIVE DEFENSE

Defendant is informed and believes and thereon alleges that Plaintiff misused and abused
the products referred to in said complaint, and failed te follow instructions, and that such misuse,
abuse and failure to follow instructions on the part of Plaintiff 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 Plaintiff 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.

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NINTH AFFIRMATIVE DEFENSE
Defendant alleges that if there was any negligence proximately causing the injuries or
damages sustained by Plaintiff, 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 Plaintiff and Defendant.
ELEVENTH AFFIRMATIVE DEFENSE
Defendant alleges that it gave no warranties, either express or implied, to Plaintiff and
that neither Plaintiff 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 Plaintiff, 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 was
employed by an employer other than this answering Defendant and was entitled to and received
workers’ compensation benefits from his ernployers; and that if there was any negligence
proximately causing the injuries and damages sustained by Plaintiff, if any, such negligence, if
any, was that of Plaintiff's employers.

FIFTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff's claims, and each of them, and this action, are preempted

by federal statutes and regulations governing work place exposure to asbestos.

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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
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 Sindeél v. Abbott Laboratories (1990) 26 Cal.3d 588, it is barred by
Plaintiff's failure to join as Defendants the manufacturers of a substantial share of the asbestos
products market, to which asbestos products Plaintiff was allegedly exposed, thereby causing the
damages alleged; and, should it prove impossible to identify the manufacturer of the product that
allegedly injured Plaintiff, said purported claim or cause of action is barred by the fault of
Plaintiff and his 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 Plaintiff has asserted
claims for relief which, if allowed, would contravene this Defendant's constitutional rights fo
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, to the extent that it seeks exemplary or punitive
damages pursuant to California Civil Code Section 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.

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TWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that said complaint, to the extent that it seeks punitive or exemplary
damages pursuant to California Civil Code Section 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
tight 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'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 Plaintiff's injuries, if any.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that at all relevant times Plaintiff was a sophisticated user of asbestos-
containing products, that Plaintiff was aware, or should have been aware, of the dangers, if any,
of asbestos-containing products, and that the sephisticated user doctrine is a complete bar to
Plaintiffs claims against Defendant as a matter of law. JoAnson v. American Standard, lnc.
(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 Plaintiffs employment

by an independent contractor.

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TWENTY-FIFTH AFFIRMATIVE DEFENSE
Defendant alleges that Plaintiff is barred from recovery in that all products produced by
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 Section 6304.5, and
derivative authority.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant alleges that Plaintiff failed to exercise due diligence to mitigate his losses,
injuries or damages, if any, and, accordingly, the amount of damages to which Plaintiff is
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, ifany, 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 Section 1431.2 are
applicable to the Complaint and each cause of action therein.
THIRTIETH AFFIRMATIVE DEFENSE
Defendant alleges that unforeseen and unforeseeable acts and omissions by others
constitute a superseding, intervening cause of Plaintiff's injuries, if any.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant alleges that cach of Plaintiff's claims, and this entire action, are preempted by

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all applicable federal law relating to raitroads, their equipment, and/or alleged injuries and
damages arising therefrom, including but not limited to the Locomotive Boiler Inspection Act, 49
U.S.C. sections 20701 ef seg.
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 Plaintiff has 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
Defendant contends that Plaintiff has released, settled, entered into an accord and
satisfaction, or otherwise compromised his 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 oxtent that Plaintiff has previously filed a dismissal in court dismissing with
prejudice all of his 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

Plaintiff's 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.
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant alleges that tle causes of action, if any, attempted to be stated and set forth in

said complaint are barred by applicable statutes of repose, including statutes of repose in other

states that are ap

section 361.

plicable to this action pursuant to California Code of Civil Procedure

WHEREFORE, Defendant prays:

L. That Plaintiff 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.

DATED: May 11, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP

Mare Brainich
Attorneys for Defendant
GENERAL ELECTRIC COMPANY

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GE'S ANSWER TO COMPLAINTnemans.

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PROOF OF SERVICE
Tam 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 & Arnold LLP, One Market
Plaza, Steuart Tower, 8th 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 (ASBESTOS)

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website.

1 declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on May 13, 2009, at San Francisco, California.

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PROOF OF SERVICE
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