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Moran, Lewis &
Bockius LLP
ATTORNEYS AT LAW
SAN FRANCISCO
MORTIMER H. HARTWELL, State Bar No. 154556
AMY TALARICO, State Bar No. 259650
MERIDITH MILLER, State Bar No. 259650 ELECTRONICALLY
MORGAN, LEWIS & BOCKIUS LLP FILED
One Market, Spear Street Tower Superior Court of California,
San Francisco, CA 94105-1126 County of San Francisco
Tel: 415.442.1000 G OMAN 72009 k
. “Li, Cler
Fax: 415.442.1001 BY: WILLIAM TRUPEK
Deputy Clerk
| Attorneys for Defendant
YARWAY CORPORATION
| SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PAUL VAN DEGRIFT, Case No. CGC-09-275076
Plaintiff, DEFENDANT YARWAY
CORPORATION’S ANSWER TO
vs. PLAINTIFF’S UNVERIFIED COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
ASBESTOS DEFENDANTS, et al.
| Defendants.
DB2/21105426.1
DEF
TEE
INJURY - ASBESTOSao
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MorcAn, Lewis &
Bocktus LLP
ATTORNEYS AT LAW
San Francisco
Yarway Corporation (“Defendant” or “Yarway”), answers Plaintiff's unverified
Complaint for Personal injury — Asbestos (“Complaint”) as follows:
Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant
denies each and every allegation of Plaintiff's Complaint and the whole thereof, and denies that
Plaintiff has been damaged in any sum or amount whatsoever, or at all.
FIRST AFFIRMATIVE DEFENSE
The Complaint and each of its purported causes of action fails to state facts sufficient to
constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Plaintiff's Complaint, and each alleged cause of action, is barred by the applicable statute
of limitations, including, but not limited to, Code of Civil Procedure, Sections 337.15, 340.2 and
343, and California Commercial Code, Section 2725.
THIRD AFFIRMATIVE DEFENSE
Plaintiff is barred from recovery herein by virtue of the application of the Doctrine of
Laches (inexcusable delay and prejudice to Defendant).
FOURTH AFFIRMATIVE DEFENSE
The court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against Defendant is barred by the
provisions of California Labor Code, Sections 3600, et seq.
FLETH AFFIRMATIVE DEFENSE
No conduct by or attributable to Defendant was the cause in fact or the proximate cause of
the damages, if any, sustained by Plaintiff, nor a substantial factor in bringing about said
damages.
SIXTH AFFIRMATIVE DEFENSE
That any and all events and happenings in connection with the allegations contained in
Plaintiff's complaint and the resulting injuries and damages, if any, referred to therein, were
proximately caused and contributed to by the negligence of the Plaintiff thereby barring or
reducing Plaintiff's recovery herein.
DB2/21105426.1 i
DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL |
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MORGAN, LEWIS &
Bockius LLP
ATTORNEYS AT LAW
SAN FRANCISCO
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the
Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if
any, complained of by Plaintiff and Plaintiff is thereby barred from recovery herein.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of this Defendant, thus barring Plaintiff from any relief as prayed for herein.
NINTH AFFIRMATIVE DEFENSE
Any loss, injury or damage to Plaintiff was proximately caused or contributed to by the
negligent or other tortious acts, omissions, conduct or products of persons, entities or patties other
than Defendant, and that each, any, and all damages recoverable by Plaintiff must be diminished
in proportion to the amount of fault attributable to said other persons, entities or parties, and there
must be apportioned among all such persons, entities and parties the amount of damages
attributed to them as an offset against damages, if any, awarded against Defendant.
TENTH AFFIRMATIVE DEFENSE
Any loss, injury, or damage, if any, incurred by Plaintiff was the result of superseding or
intervening causes arising from the negligent or willful acts or omissions of other parties which
Defendant neither controlled nor had the right to control, and that said loss, injury or damage was
not proximately or legally caused by any act, omission, or other conduct of Defendant.
ELEVENTH AFFIRMATIVE DEFENSE
If Plaintiff sustained any injury or illness attributable to the use of any product
manufactured by Defendant, which allegations are expressly denied, the injuries were solely
caused by and attributable to the unreasonable and improper use which was made of said
products, and each of them.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff was advised, informed, and warned of any potential hazards and/or dangers, if
any there were, associated with the normal or foreseeable use, handling, and storage of the
products, substances, and equipment described in the Complaint.
1DB2/21105426.1 2
DEFENDANT YARWAY CORP.’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOS27
Morcan, Lewis &
BockIUs LLP
ArrORNeYS AT LAI
SAN FRANCISCO
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable
diligence in caring for their injuries and reasonable means to prevent their aggravation or to
accomplish their healing.
FOURTEENTH AFFIRMATIVE DEFENSE
The Complaint, and cach cause of action thereof, which is admittedly based upon a lack of
identification of the manufacturer of 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 to the United States
Constitution and by Article I, Section 7, of the Constitution of the State of California.
FIFTEENTH AFFIRMATIVE DEFENSE
The product involved was materially altered or changed by a party or parties other than,
and without the permission of, Defendant, its employees, servants, or other agents, and such
alteration or change created the alleged defect, if any, which was the proximate or legal cause of
Plaintiffs injuries, or damages, if any.
SIXTEENTH AFFIRMATIVE DEFENSE
The asbestos-containing products, if any, for which Defendant had legal responsibility
were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged,
distributed, marketed and/or sold in accordance with contract specifications imposed by its co-
defendants, by the U.S. Government, by Plaintiff's employers and by third parties yet to be
identified.
SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiff's Complaint and each purported cause of action therein are barred under the
government contractor defense.
EIGHTEENTH AFFIRMATIVE DEFENSE
The products, substances, and equipment referred to in the Complaint were properly
designed and manufactured, and safe for the purpose intended. Said products, substances, and
DB2/21105426.1 3
DEFENDANT YARWAY CORP."S ANSWER TO PLAINTIFF § UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOS27
MorGan, Lewis &
Bockius LLP
ATTORNEYS AT LAt
SAN FRANCISCO,
equipment were modified, altered, misused, abused and/or improperly maintained by Plaintiff or
others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or
contributed to the injuries, losses, and damages complained of, if any there were, thus barring
Plaintiff's recovery herein.
NINETEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to give Defendant reasonably prompt notice of the breaches of warranty, if
any, alleged in the Complaint.
TWENTIETH AFFIRMATIVE DEFENSE
Plaintiff was not in privity of contract with Defendant and said lack of privity bars
Plaintiff's recovery herein upon any theory of warranty.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Any exposure of Plaintiff to Defendant’s products 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.
TWENTY-SECOND AFFIRMATIVE DEFENSE
‘This Defendant’s products were not a substantial factor in bringing about the injuries and
damages complained of by Plaintiff, and, therefore, Defendant may not be held liable to Plaintiffs
as alleged.
TWENTY-THIRD AFFIRMATIVE DEFENSE
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 their product(s) presented a foreseeable risk of harm to Plaintiff in the
normal and expected use of such product(s).
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Any products, substances, or equipment manufactured, formulated, sold or distributed by
Defendant were made consistent with the state of the art applicable to said products, substances,
or equipment at the time of their manufacture, sale, formulation, or distribution.
1DBY/21105426. 4
DEFENDANT YARWAY CORP. S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOS27
Morcan, Lewis &
Bocxivs LLP
ATTORNEYS AT LAW
SAN FRANCISCO
TWENTY-FIFTH AFFIRMATIVE DEFENSE
If Defendant is responsible to Plaintiff, which responsibility is expressly denied,
Defendant shall be liable to Plaintiff only for the amount of non-economic damages allocated to
each defendant in direct proportion to each defendant’s percentage of fault, if any. (California
Civil Code, Sections 1431, et seg.)
TWENTY-SIXTH AFFIRMATIVE DEFENSE
At the time and place of the happening of the occurrences and injuries alleged in the
Complaint, and all times material thereto, Plaintiff was employed by various employers, the
names of which are unknown to this Defendant, and working within the course and scope of their
employment and/or employments. Said employer and/or employers and Plaintiff was subject to
the provisions of the Workers’ Compensation Act of the State of California and Plaintiff was
entitled to receive Workers’ Compensation benefits from his employers. Certain sums have been
paid to or on behalf of Plaintiff herein under the applicable provisions of the Labor Code of the
State of California. Said employer and/or employers and each of them were negligent, careless,
and at fault in and about the matters referred to in the Complaint and such negligence,
carelessness, and fault proximately and concurrently contributed to and caused the happening of
the incidents complained of by Plaintiff, if any there were. By these premises, any judgment
rendered in favor of Plaintiff herein must be reduced by any benefits or payments made or to be
made to Plaintiff by Plaintiff's employer’s or employers’ compensation carrier under the
authority of Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360 P.2d 641).
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiff has received, or in the future may receive, Workers’ Compensation benefits from
Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the complaint, and, in the event Plaintiff is awarded damages
against Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that
Plaintiff has received or may in the future receive.
DB2/21105426.1 3
DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOShk WON
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MORGAN, LEWIS &
Bockius LLP
ATTORNEYS AT LAW
SAN FRANCISCO
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff herein have failed to join indispensable parties (California Code of Civil
Procedure, Section 389) and the Complaint is thereby defective, and Plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein.
| TWENTY-NINTH AFFIRMATIVE DEFENSE
| 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 Defendant.
| THIRTIETH AFFIRMATIVE DEFENSE
THIRTIETH AFFIRMALIVE DEMAS
The Complaint, and each cause of action thereof, fails to state facts sufficient to constitute
a cause of action against Defendant, in that Plaintiff has failed to join a substantial market share
of the producers of the product or products to which Plaintiff was allegedly exposed.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused Plaintiff's injuries. Therefore, Defendant
| may not be held liable to Plaintiff based on Defendant’s alleged percentage share of the
| applicable market.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff's alleged cause of action seeking punitive damages against Defendant does not
| state facts sufficient to constitute a cause of action against this Defendant,
| THIRTY-THIRD AFFIRMATIVE DEFENSE
Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred
by the due process clause of the Fourteenth Amendment to the United States Constitution.
| THIRTY-FOURTH AFFIRMATIVE DEFENSE
| Plaintiffs claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred
by the proscription of the Eighth Amendment to the United States Constitution, as applied to the
States through the Fourteenth Amendment, prohibiting the imposition of excessive fines.
I ppzrr105026.1 6
DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOS27
Moran, LEWIS &
Bockius LLP
ATTORNEYS AT LAW
SAN FRANCISCO
THIRTY-FIFTH AFFIRMATIVE DEFENSE
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.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiff has no standing or right to sue for fraud and conspiracy, breach of warranty,
deceit, or any cause of action under California Civil Code, Sections 1708-1710, and therefore the
Complaint and each cause of action thereof fail to state facts sufficient to constitute a cause of
action against this Defendant.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
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
Defendant, but is simply cumulative and included in general damages.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
As between Plaintiff and Defendant, the law applicable to this action is the law as it
existed during the period Defendant engaged, if at all, in the manufacture, sale, or distribution of
asbestos-containing products to which the Plaintiff claims exposure. It is unlawful, inequitable,
and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles
of law other than or in a manner different from those which existed for the period in which
Defendant manufactured, sold, or distributed products to which Plaintiff claims exposure.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Defendant denies any and all liability to the extent that Plaintiff asserts Defendant’s
alleged liability as a successor-in-interest, 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 of or member in an entity researching, studying, manufacturing, fabricating, designing,
labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
DB2/21105426.1 7
DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL,
INJURY - ASBESTOS1 | installing, contracting, or installation, repairing, marketing, warranting, re-branding,
2 | manufacturing for others, packaging and advertising a certain substance, the generic name of
3 | which is asbestos.
4 FORTIETH AFFIRMATIVE DEFENSE
5 Plaintiff's Complaint and each purported cause of action alleged therein are barred by the
6 | equitable Doctrine of Unclean Hands.
7 | FORTY-FIRST AFFIRMATIVE DEFENSE
8 | Plaintiff's Complaint and cach purported cause of action alleged therein are barred by the
9 | equitable Doctrine of Waiver.
10 FORTY-SECOND AFFIRMATIVE DEFENSE
li | Plaintiff's Complaint and each purported cause of action alleged therein are barred by the
12 | equitable Doctrine of Estoppel.
13 FORTY-THIRD AFFIRMATIVE DEFENSE
14 If Defendant provided the products alleged to have been defective, and without admitting
18 | that it did so or that any product was defective, Defendant provided such products to distributors
16 | or other intermediaries, including Plaintiffs’ employers, who were knowledgeable, informed and
17 || sophisticated concerning the use of the products and the alleged risks to the health of ultimate
18 }) users, such as Plaintiffs, from the use of the products.
| FORTY-FOURTH AFFIRMATIVE DEFENSE
20
1 | Plaintiff's causes of action are barred pursuant to Johnson v. American Standard, Ine.
2 (2008) 43 Cal. 4th 56 because Plaintiff and/or his employer are sophisticated users.
3 FORTY-FIFTH AFFIRMATIVE DEFENSE
i Plaintiff's causes of action are barred pursuant to Taylor v. Elliot Turbomachinery Co., Inc., No.
A116816 and A117648 (Ca. Ist App. Dist., filed February 25, 2009) because Plaintiff have not
26 pled and cannot show that Plaintiff was exposed to asbestos-containing products that were
7 manufactured, sold or distributed by Defendant or that were original to any equipment alleged to
be manufactured, sold or distributed by Defendant.
Morcan, Lewis &
Bockius LLP | DB2/21105426.1 8
ATTORNEYS AT Lavy DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL,
INJURY - ASBESTOS,
SAN FRANCISCO27
Morcan, Lewis &
Bockiys LLP
ArronNrys AT Lat
SAN FRANCISCO
Each denial of Plaintiff's allegations, together with each of Defendant's allegations,
defenses and factual contentions, all as set forth herein, are hereby specifically identified as
denials, allegations, defenses and factual contentions subject to reasonable opportunity for further
investigation and discovery, as set forth in Code of Civil Procedure section 128.7()(3)(4).
WHEREFORE, this Defendant prays that Plaintiffs Complaint be dismissed and that
Plaintiff take nothing by virtue of this complaint on file herein, for its costs of suit herein
incurred, for appropriate credits and setoffs arising out of any payment of Workers’
Compensation benefits alleged herein, and for any other and further relief as the Court may deem
proper.
Dated: May 7, 2009 Respectfully submitted,
MORGAN, LEWIS & BOCKIUS LLP
By
Meridith A. Miller
One Market, Spear Street Tower
San Francisco, CA 94105
415/442-1000
SBN 259650
1DB2/21105426.t 9
DEFENDANT YARWAY CORP.’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL
INJURY - ASBESTOS27
MoRGAN, LEWIS &
Bocxius LLP
Artonneys AT LAW
SAN FRANCISCO
| PROOF OF SERVICE
| PAUL VAN DEGRIFT ¥. ASBESTOS DEFENDANTS, et al.
San Francisco Superior Court Case No. CGC 09-275076
1am a resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is One Market, Spear Street Tower, San
Francisco, CA 94105-1126. On May 7, 2009, | served the within documents:
DEFENDANT YARWAY CORPORATION’S ANSWER TO
PLAINTIFF'S UNVERIFIED COMPLAINT
| FOR PERSONAL INJURY - ASBESTOS
El by transmitting via E-Filed by Lexis Nexis File & Service the document(s) listed above
to the person(s) designated on the Transaction Receipt located on the LexisNexis
| File & Serve website.
Executed on May 7, 2009, at San Francisco, California.
I declare under penalty of perjury, under the laws of the State of California and the United
States of America, that the foregoing is true and correct.
0
Kristin Olson
Morgan, Lewis & Bockius
| One Market, Spear Street Tower
San Francisco, CA 94105
415-442-1605
DB2/21105426.5 1
PROOF OF SERVICE
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27 Moran, Lewis & Bockius LLP ATTORNEYS AT LAW SAN FRANCISCO MORTIMER H. HARTWELL, State Bar No. 154556 AMY TALARICO, State Bar No. 259650 MERIDITH MILLER, State Bar No. 259650 ELECTRONICALLY MORGAN, LEWIS & BOCKIUS LLP FILED One Market, Spear Street Tower Superior Court of California, San Francisco, CA 94105-1126 County of San Francisco Tel: 415.442.1000 G OMAN 72009 k . “Li, Cler Fax: 415.442.1001 BY: WILLIAM TRUPEK Deputy Clerk | Attorneys for Defendant YARWAY CORPORATION | SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PAUL VAN DEGRIFT, Case No. CGC-09-275076 Plaintiff, DEFENDANT YARWAY CORPORATION’S ANSWER TO vs. PLAINTIFF’S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ASBESTOS DEFENDANTS, et al. | Defendants. DB2/21105426.1 DEF TEE INJURY - ASBESTOSao 27 MorcAn, Lewis & Bocktus LLP ATTORNEYS AT LAW San Francisco Yarway Corporation (“Defendant” or “Yarway”), answers Plaintiff's unverified Complaint for Personal injury — Asbestos (“Complaint”) as follows: Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant denies each and every allegation of Plaintiff's Complaint and the whole thereof, and denies that Plaintiff has been damaged in any sum or amount whatsoever, or at all. FIRST AFFIRMATIVE DEFENSE The Complaint and each of its purported causes of action fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE Plaintiff's Complaint, and each alleged cause of action, is barred by the applicable statute of limitations, including, but not limited to, Code of Civil Procedure, Sections 337.15, 340.2 and 343, and California Commercial Code, Section 2725. THIRD AFFIRMATIVE DEFENSE Plaintiff is barred from recovery herein by virtue of the application of the Doctrine of Laches (inexcusable delay and prejudice to Defendant). FOURTH AFFIRMATIVE DEFENSE The court lacks subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and each alleged cause of action against Defendant is barred by the provisions of California Labor Code, Sections 3600, et seq. FLETH AFFIRMATIVE DEFENSE No conduct by or attributable to Defendant was the cause in fact or the proximate cause of the damages, if any, sustained by Plaintiff, nor a substantial factor in bringing about said damages. SIXTH AFFIRMATIVE DEFENSE That any and all events and happenings in connection with the allegations contained in Plaintiff's complaint and the resulting injuries and damages, if any, referred to therein, were proximately caused and contributed to by the negligence of the Plaintiff thereby barring or reducing Plaintiff's recovery herein. DB2/21105426.1 i DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL | INJURY - ASBESTOS.me NR A 9 10 W 12 13 14 18 16 17 18 19 20 21 22 23 24 25 26 27 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW SAN FRANCISCO SEVENTH AFFIRMATIVE DEFENSE Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if any, complained of by Plaintiff and Plaintiff is thereby barred from recovery herein. EIGHTH AFFIRMATIVE DEFENSE Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or omissions, if any, of this Defendant, thus barring Plaintiff from any relief as prayed for herein. NINTH AFFIRMATIVE DEFENSE Any loss, injury or damage to Plaintiff was proximately caused or contributed to by the negligent or other tortious acts, omissions, conduct or products of persons, entities or patties other than Defendant, and that each, any, and all damages recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to said other persons, entities or parties, and there must be apportioned among all such persons, entities and parties the amount of damages attributed to them as an offset against damages, if any, awarded against Defendant. TENTH AFFIRMATIVE DEFENSE Any loss, injury, or damage, if any, incurred by Plaintiff was the result of superseding or intervening causes arising from the negligent or willful acts or omissions of other parties which Defendant neither controlled nor had the right to control, and that said loss, injury or damage was not proximately or legally caused by any act, omission, or other conduct of Defendant. ELEVENTH AFFIRMATIVE DEFENSE If Plaintiff sustained any injury or illness attributable to the use of any product manufactured by Defendant, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable and improper use which was made of said products, and each of them. TWELFTH AFFIRMATIVE DEFENSE Plaintiff was advised, informed, and warned of any potential hazards and/or dangers, if any there were, associated with the normal or foreseeable use, handling, and storage of the products, substances, and equipment described in the Complaint. 1DB2/21105426.1 2 DEFENDANT YARWAY CORP.’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27 Morcan, Lewis & BockIUs LLP ArrORNeYS AT LAI SAN FRANCISCO THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable diligence in caring for their injuries and reasonable means to prevent their aggravation or to accomplish their healing. FOURTEENTH AFFIRMATIVE DEFENSE The Complaint, and cach cause of action thereof, which is admittedly based upon a lack of identification of the manufacturer of 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 to the United States Constitution and by Article I, Section 7, of the Constitution of the State of California. FIFTEENTH AFFIRMATIVE DEFENSE The product involved was materially altered or changed by a party or parties other than, and without the permission of, Defendant, its employees, servants, or other agents, and such alteration or change created the alleged defect, if any, which was the proximate or legal cause of Plaintiffs injuries, or damages, if any. SIXTEENTH AFFIRMATIVE DEFENSE The asbestos-containing products, if any, for which Defendant had legal responsibility were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged, distributed, marketed and/or sold in accordance with contract specifications imposed by its co- defendants, by the U.S. Government, by Plaintiff's employers and by third parties yet to be identified. SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint and each purported cause of action therein are barred under the government contractor defense. EIGHTEENTH AFFIRMATIVE DEFENSE The products, substances, and equipment referred to in the Complaint were properly designed and manufactured, and safe for the purpose intended. Said products, substances, and DB2/21105426.1 3 DEFENDANT YARWAY CORP."S ANSWER TO PLAINTIFF § UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27 MorGan, Lewis & Bockius LLP ATTORNEYS AT LAt SAN FRANCISCO, equipment were modified, altered, misused, abused and/or improperly maintained by Plaintiff or others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or contributed to the injuries, losses, and damages complained of, if any there were, thus barring Plaintiff's recovery herein. NINETEENTH AFFIRMATIVE DEFENSE Plaintiff failed to give Defendant reasonably prompt notice of the breaches of warranty, if any, alleged in the Complaint. TWENTIETH AFFIRMATIVE DEFENSE Plaintiff was not in privity of contract with Defendant and said lack of privity bars Plaintiff's recovery herein upon any theory of warranty. TWENTY-FIRST AFFIRMATIVE DEFENSE Any exposure of Plaintiff to Defendant’s products 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. TWENTY-SECOND AFFIRMATIVE DEFENSE ‘This Defendant’s products were not a substantial factor in bringing about the injuries and damages complained of by Plaintiff, and, therefore, Defendant may not be held liable to Plaintiffs as alleged. TWENTY-THIRD AFFIRMATIVE DEFENSE 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 their product(s) presented a foreseeable risk of harm to Plaintiff in the normal and expected use of such product(s). TWENTY-FOURTH AFFIRMATIVE DEFENSE Any products, substances, or equipment manufactured, formulated, sold or distributed by Defendant were made consistent with the state of the art applicable to said products, substances, or equipment at the time of their manufacture, sale, formulation, or distribution. 1DBY/21105426. 4 DEFENDANT YARWAY CORP. S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27 Morcan, Lewis & Bocxivs LLP ATTORNEYS AT LAW SAN FRANCISCO TWENTY-FIFTH AFFIRMATIVE DEFENSE If Defendant is responsible to Plaintiff, which responsibility is expressly denied, Defendant shall be liable to Plaintiff only for the amount of non-economic damages allocated to each defendant in direct proportion to each defendant’s percentage of fault, if any. (California Civil Code, Sections 1431, et seg.) TWENTY-SIXTH AFFIRMATIVE DEFENSE At the time and place of the happening of the occurrences and injuries alleged in the Complaint, and all times material thereto, Plaintiff was employed by various employers, the names of which are unknown to this Defendant, and working within the course and scope of their employment and/or employments. Said employer and/or employers and Plaintiff was subject to the provisions of the Workers’ Compensation Act of the State of California and Plaintiff was entitled to receive Workers’ Compensation benefits from his employers. Certain sums have been paid to or on behalf of Plaintiff herein under the applicable provisions of the Labor Code of the State of California. Said employer and/or employers and each of them were negligent, careless, and at fault in and about the matters referred to in the Complaint and such negligence, carelessness, and fault proximately and concurrently contributed to and caused the happening of the incidents complained of by Plaintiff, if any there were. By these premises, any judgment rendered in favor of Plaintiff herein must be reduced by any benefits or payments made or to be made to Plaintiff by Plaintiff's employer’s or employers’ compensation carrier under the authority of Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360 P.2d 641). TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiff has received, or in the future may receive, Workers’ Compensation benefits from Defendant under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the complaint, and, in the event Plaintiff is awarded damages against Defendant, Defendant claims a credit against this award to the extent that Defendant is barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that Plaintiff has received or may in the future receive. DB2/21105426.1 3 DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOShk WON 27 MORGAN, LEWIS & Bockius LLP ATTORNEYS AT LAW SAN FRANCISCO TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff herein have failed to join indispensable parties (California Code of Civil Procedure, Section 389) and the Complaint is thereby defective, and Plaintiff is thereby precluded from any recovery whatsoever as prayed for herein. | TWENTY-NINTH AFFIRMATIVE DEFENSE | 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 Defendant. | THIRTIETH AFFIRMATIVE DEFENSE THIRTIETH AFFIRMALIVE DEMAS The Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against Defendant, in that Plaintiff has failed to join a substantial market share of the producers of the product or products to which Plaintiff was allegedly exposed. THIRTY-FIRST AFFIRMATIVE DEFENSE Defendant did not and does not have a substantial percentage of the market for the asbestos-containing products which allegedly caused Plaintiff's injuries. Therefore, Defendant | may not be held liable to Plaintiff based on Defendant’s alleged percentage share of the | applicable market. THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiff's alleged cause of action seeking punitive damages against Defendant does not | state facts sufficient to constitute a cause of action against this Defendant, | THIRTY-THIRD AFFIRMATIVE DEFENSE Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred by the due process clause of the Fourteenth Amendment to the United States Constitution. | THIRTY-FOURTH AFFIRMATIVE DEFENSE | Plaintiffs claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred by the proscription of the Eighth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. I ppzrr105026.1 6 DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27 Moran, LEWIS & Bockius LLP ATTORNEYS AT LAW SAN FRANCISCO THIRTY-FIFTH AFFIRMATIVE DEFENSE 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. THIRTY-SIXTH AFFIRMATIVE DEFENSE Plaintiff has no standing or right to sue for fraud and conspiracy, breach of warranty, deceit, or any cause of action under California Civil Code, Sections 1708-1710, and therefore the Complaint and each cause of action thereof fail to state facts sufficient to constitute a cause of action against this Defendant. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 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 Defendant, but is simply cumulative and included in general damages. THIRTY-EIGHTH AFFIRMATIVE DEFENSE As between Plaintiff and Defendant, the law applicable to this action is the law as it existed during the period Defendant engaged, if at all, in the manufacture, sale, or distribution of asbestos-containing products to which the Plaintiff claims exposure. It is unlawful, inequitable, and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles of law other than or in a manner different from those which existed for the period in which Defendant manufactured, sold, or distributed products to which Plaintiff claims exposure. THIRTY-NINTH AFFIRMATIVE DEFENSE Defendant denies any and all liability to the extent that Plaintiff asserts Defendant’s alleged liability as a successor-in-interest, 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 of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, DB2/21105426.1 7 DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL, INJURY - ASBESTOS1 | installing, contracting, or installation, repairing, marketing, warranting, re-branding, 2 | manufacturing for others, packaging and advertising a certain substance, the generic name of 3 | which is asbestos. 4 FORTIETH AFFIRMATIVE DEFENSE 5 Plaintiff's Complaint and each purported cause of action alleged therein are barred by the 6 | equitable Doctrine of Unclean Hands. 7 | FORTY-FIRST AFFIRMATIVE DEFENSE 8 | Plaintiff's Complaint and cach purported cause of action alleged therein are barred by the 9 | equitable Doctrine of Waiver. 10 FORTY-SECOND AFFIRMATIVE DEFENSE li | Plaintiff's Complaint and each purported cause of action alleged therein are barred by the 12 | equitable Doctrine of Estoppel. 13 FORTY-THIRD AFFIRMATIVE DEFENSE 14 If Defendant provided the products alleged to have been defective, and without admitting 18 | that it did so or that any product was defective, Defendant provided such products to distributors 16 | or other intermediaries, including Plaintiffs’ employers, who were knowledgeable, informed and 17 || sophisticated concerning the use of the products and the alleged risks to the health of ultimate 18 }) users, such as Plaintiffs, from the use of the products. | FORTY-FOURTH AFFIRMATIVE DEFENSE 20 1 | Plaintiff's causes of action are barred pursuant to Johnson v. American Standard, Ine. 2 (2008) 43 Cal. 4th 56 because Plaintiff and/or his employer are sophisticated users. 3 FORTY-FIFTH AFFIRMATIVE DEFENSE i Plaintiff's causes of action are barred pursuant to Taylor v. Elliot Turbomachinery Co., Inc., No. A116816 and A117648 (Ca. Ist App. Dist., filed February 25, 2009) because Plaintiff have not 26 pled and cannot show that Plaintiff was exposed to asbestos-containing products that were 7 manufactured, sold or distributed by Defendant or that were original to any equipment alleged to be manufactured, sold or distributed by Defendant. Morcan, Lewis & Bockius LLP | DB2/21105426.1 8 ATTORNEYS AT Lavy DEFENDANT YARWAY CORP.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL, INJURY - ASBESTOS, SAN FRANCISCO27 Morcan, Lewis & Bockiys LLP ArronNrys AT Lat SAN FRANCISCO Each denial of Plaintiff's allegations, together with each of Defendant's allegations, defenses and factual contentions, all as set forth herein, are hereby specifically identified as denials, allegations, defenses and factual contentions subject to reasonable opportunity for further investigation and discovery, as set forth in Code of Civil Procedure section 128.7()(3)(4). WHEREFORE, this Defendant prays that Plaintiffs Complaint be dismissed and that Plaintiff take nothing by virtue of this complaint on file herein, for its costs of suit herein incurred, for appropriate credits and setoffs arising out of any payment of Workers’ Compensation benefits alleged herein, and for any other and further relief as the Court may deem proper. Dated: May 7, 2009 Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP By Meridith A. Miller One Market, Spear Street Tower San Francisco, CA 94105 415/442-1000 SBN 259650 1DB2/21105426.t 9 DEFENDANT YARWAY CORP.’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27 MoRGAN, LEWIS & Bocxius LLP Artonneys AT LAW SAN FRANCISCO | PROOF OF SERVICE | PAUL VAN DEGRIFT ¥. ASBESTOS DEFENDANTS, et al. San Francisco Superior Court Case No. CGC 09-275076 1am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is One Market, Spear Street Tower, San Francisco, CA 94105-1126. On May 7, 2009, | served the within documents: DEFENDANT YARWAY CORPORATION’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT | FOR PERSONAL INJURY - ASBESTOS El by transmitting via E-Filed by Lexis Nexis File & Service the document(s) listed above to the person(s) designated on the Transaction Receipt located on the LexisNexis | File & Serve website. Executed on May 7, 2009, at San Francisco, California. I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct. 0 Kristin Olson Morgan, Lewis & Bockius | One Market, Spear Street Tower San Francisco, CA 94105 415-442-1605 DB2/21105426.5 1 PROOF OF SERVICE