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1
& CORDERY, LLP
Law
IMAL, TADLOCK, K.
Theodore T. Cordery, Esq. (Bar No. 114730)
IMAL, TADLOCK, KEENEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300 ELECTRONICALLY
SAN FRANCISCO, CA 94104
Telephone: (415) 675-7000 s F ILED |
imile: superior Court of California,
Faesnmile: (415) 675-7008 County of San Francisco
Attorneys for Defendant MAY 15
2009
ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY COGQRDON PARK-LI, Clerk
BY: ANNIE PASCUAL
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PAUL VAN DEGRIFT, CASE NO.: CGC-09-275076
(ASBESTOS)
Plaintiffs,
ELLIOTT COMPANY FKA “ELLIOTT
v. TURBOMACHINERY CO., INC.” ’S
ANSWER TO COMPLAINT FOR
PERSONAL INJURY - ASBESTOS
ASBESTOS DEFENDANTS (B*P), et al,
Complaint Filed: February 18, 2009
Defendants,
COMES NOW defendant ELLIOTT COMPANY FKA “ELLIOTT
TURBOMACHINERY CO., INC.” , for itself alone, and in answer to Plaintiff’s unverified
complaint on file herein, and to each and every cause of action thereof, and by virtue of the
provisions of CCP § 431.30, now files its general denial to said complaint and to each and every
cause of action thereof, and in answer to all the allegations thereof, denies that the Plaintiff has
been damaged in any sum or sums whatsoever, or at all, by any act or omission of this answering
defendant.
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Complaint and each cause of action therein, fails to state
facts sufficient to constitute a cause of action.
AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiff is barred from recovery by the applicable statute of
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO,, INC.” ’S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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54104
limitations, including but not limited to California Code of Civil Procedure Sections 319, 320,
337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and California Commercial Code Sections
2725(1) and 2725(2).
AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiff was himself negligent and careless in and about
the matters and events alleged in the Complaint, and said negligence proximately contributed to
the alleged damages, if any there were, and as a result thereof, the principles of equitable
comparative negligence must be applied to bar Plaintiff's action.
AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint
by Plaintiff, if any there were, were caused by the carelessness and negligence on the part of the
remaining defendants in that said carelessness and negligence on the part of said remaining
defendants proximately contributed to the happening of the subject event and the injuries, loss or
damages alleged by the Plaintiff herein, and that any judgment rendered against this answering
defendant be reduced or nullified to the extent of such negligence and carelessness on the part of
the remaining defendants as aforesaid.
AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Plaintiffs injuries and damages which may have been
sustained as a result of events mentioned in the Complaint, if any there were, were proximately
caused by the carelessness and negligence of Plaintiff and the remaining defendants, and that the
respective negligence of each said party to this suit ought to be equitably apportioned among the
parties hereto.
AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at the time of the occurrence of the matters mentioned in the
Plaintiff's Complaint, the Plaintiff himself had knowledge of those matters alleged in the
Complaint and Plaintiff did, with said knowledge, voluntarily and of their free will and act, place
himself in an unsafe and dangerous position and by reason thereof, Plaintiff did assume the risk
and all risks ordinarily incident thereto.
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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ity
AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products referred to in the Complaint were
not used in a safe and normal manner or in the manner in which they were intended to be used,
and that such misuse proximately contributed to the injuries to Plaintiff and the damages and.
losses resulting therefrom, if any there were, and bars Plaintiff's recovery herein.
AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that prior to and at the time referred to in Plaintiff's Complaint,
the products referred to in the Complaint were abused, altered, modified, or changed in a manner
that was not reasonably foreseeable, that such abuse, modification, alteration, or change
proximately contributed to the injuries to Plaintiff and the damages and losses resulting
therefrom, if any there were, and bars Plaintiff's recovery herein.
AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times herein mentioned, Plaintiff was in the course and
scope of their employment and that the injuries sustained by Plaintiff, if any there were, were
caused or contributed to by the carelessness and negligence of Plaintiffs employers, entitling this
answering defendant to a set-off in an amount equal to the extent of payments made by said
employers' workers’ compensation carrier.
AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiff's employers were negligent and careless in and
about the matters alleged in the Complaint and proximately contributed to the injuries and
damages, if any there were, sustained by Plaintiff; that by reason of the premises said employers
and their workers' compensation carrier are barred from recovery of any payments heretofore or
hereafter made to Plaintiff pursuant to the workers' compensation laws of the State of California
under the doctrine of Witt v. Jackson, 57 Cal.2d 57.
AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by Labor
Code §3600, et seq.
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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ity
AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by the
Doctrine of Laches.
AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant
which are alleged to have caused injury to Plaintiff was manufactured in compliance with and
supplied pursuant to mandatory government specifications which required the use of asbestos.
Accordingly, defendant is immune from liability for any damages suffered by Plaintiff as a
consequence of exposure to asbestos contained in such products.
AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Answering Defendant alleges that its compliance with all governmental standards
is a complete defense to Plaintiff’s action.
AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff failed and neglected to use reasonable
care to protect himself and to minimize the losses and damages complained of, if any there were.
AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any claim
based on breach of warranty by reason of their failure to fulfill the conditions of warranties
alleged in the Complaint in the event such alleged warranties are proved at trial.
AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff within a reasonable time failed to give
notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file
herein in the manner and form prescribed by law.
AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that there was no privity or other legal relationship
between this answering defendant and Plaintiff herein sufficient to entitle Plaintiff to any legal
relief by said defendant.
4.
ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is
prohibited because it would deprive defendant of its property without due process of law under
the 14th Amendment of the United States Constitution and under the California Constitution. See
U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art. I, §7(a).
AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is barred
by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VII;
California Constitution, Art. I, §17.
AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is barred
by the Constitutional Prohibition against impairing the obligation of contracts. See U.S.
Constitution, Art. 1, §X, C1.1, See California Constitution, Art. 1, §9.
AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages
pursuant to California law herein constitutes a violation of equal protection prohibited by the
United States Constitution and the Constitution of the State of California and therefore fails to
make a claim upon which relief can be granted.
AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the complaint on file herein fails to state facts
sufficient to constitute a cause of action for punitive damages.
AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages must
consider the degree of reprehensibility of defendant's conduct, the disparity between the
compensatory damages and punitive damages and the difference between punitive damages, the
ratio of actual harm suffered by the Plaintiff to the amount of punitive damages and the civil
sanctions that could or would be imposed for comparable conduct. These considerations were
outlined by the U.S. Supreme Court in BMW of North America v. Gore (1996) 517 U.S. 559, and
5.
ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO,, INC.” °S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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Cooper Industries Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, and State Farm Mut.
Auto, Ins. Co. v. Campbell (2003) 538 U.S. 408.
AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, to the extent Plaintiff may be able to prove
their allegations concerning liability, injuries and damages, which are specifically denied, they
were the result of intervening acts of superseding negligence on the part of a person or persons
over whom this defendant had neither control nor the right of control.
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any causes of
action by the Doctrine of Waiver.
AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is estopped from asserting any causes
of action by their conduct.
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff has failed to join necessary and
indispensable parties.
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff has improperly joined or misjoined it
and other parties to this action.
AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe
or defective in any manner are preempted by federal law.
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any injuries and damages, if any there be,
alleged by Plaintiff in the Complaint, were proximately caused by an unforeseeable allergic
reaction to the product or products and/or one or more of its, or their, components.
AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the product in question was used after
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” ’S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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knowledge of the defect, if any, that existed therein.
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if Plaintiffs claims were already litigated and
resolved in any prior action, 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.
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claims are barred by the primary
right doctrine as there is another action pending between the same parties on the same cause of
action.
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs claims are barred by the principles of
res judicata.
AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the substantive law of Plaintiffs domicile or a
jurisdiction other than California, is applicable.
AND AS FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, at all times herein pertinent, Plaintiff and/or
Plaintiff's employer was a sophisticated user of the subject product and that defendant had no
duty to warn about dangers, risk, or harm. of which the sophisticated user was already aware or of
which the sophisticated user should have been aware.
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, to the extent the Complaint asserts Defendant’s alleged “market share” liability, or
“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiff failed to exercise due diligence to mitigate their loss, injury or damages;
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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54104
accordingly, the amount of damages to which Plaintiff is entitled, should be reduced by the
amount of damages which would have otherwise been mitigated.
AS AND FOR A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiff is barred from recovery in that all products installed, removed, distributed,
sold and/or supplied by Defendant, if any, were in conformity with the existing state-of-the-art,
and as a result, these products were not defective in any manner.
AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, the 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 this Defendant’s alleged percentage share of the
applicable market.
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiff's claims are or may be barred in whole or in part by collateral estoppel, issue
preclusion and/or release.
AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that it is immune from liability for any alleged failure to warn
Plaintiff of material risks associated with Defendant’s products, if any, because such risks were or
should have been obvious to a reasonably prudent product user in Plaintiff's position, or were
otherwise a matter of common knowledge to persons in the same or similar position to Plaintiff.
AS AND FOR A FORTY-FORTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff
was employed and was entitled to receive Workers’ Compensation benefits from his employer’s
workers’ compensation carrier; that Defendant did not control Plaintiff's work activities at his
worksites; that all of Plaintiffs employers, other than Defendant , were negligent in and about the
matters refereed to in said Complaint, that other parties over whom Defendant had no control
were negligent in and about the matters referred to in said Complaint, and that such negligence on
the part of said employers and other parties proximately and concurrently contributed to the
happening of the accident and to the loss or damage complained of by Plaintiff, if any there was;
and as a result thereof, Defendant bears no liability for Plaintiff's alleged damages.
8.
ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
1 WHEREFORE, this answering defendant prays for judgment as follows:
2 1. That Plaintiff take nothing by way of their Complaint or any cause of action
3 || thereof against this answering defendant;
4 2. That the Court award judgment in favor of this answering defendant;
5 3. For reasonable attorneys’ fees;
6 4. For costs of suit and disbursements; and
7 5. For such other and further relief as the Court may deem proper.
8 || Dated: May 6, 2009 IMAI, TADLOCK, KEENEY & CORDERY, LLP
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a I By: /S/ Theodore T. Cordery
z Theodore T. Cordery
3 2 Attorneys for Defendant
Bs ELLIOTT COMPANY FKA “ELLIOTT
c x 3 TURBOMACHINERY CO., INC.”
2 4
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a
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO.,, INC.” ’S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
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PROOF OF SERVICE USING LEXISNEXIS
1, Heather Cherry, declare:
1am a resident of the State of California and over the age of cighteen years, and nota
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco,
California 94104.
On the date of execution below, | electronically served the document via LexisNexis File
& Serve described as:
ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” ’°S ANSWER
TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
Web site.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on May 15, 2009, at San Francisco, California
/s/ Heather Cherry.
Heather Cherry
Van Degrift, Paul v. Asbestos Defendants (B*P).
SAN FRANCISCO SUPERIOR COURT NO. CGC-09-275076
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ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
Preview
1 & CORDERY, LLP Law IMAL, TADLOCK, K. Theodore T. Cordery, Esq. (Bar No. 114730) IMAL, TADLOCK, KEENEY & CORDERY, LLP 100 BUSH STREET, SUITE 1300 ELECTRONICALLY SAN FRANCISCO, CA 94104 Telephone: (415) 675-7000 s F ILED | imile: superior Court of California, Faesnmile: (415) 675-7008 County of San Francisco Attorneys for Defendant MAY 15 2009 ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY COGQRDON PARK-LI, Clerk BY: ANNIE PASCUAL Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PAUL VAN DEGRIFT, CASE NO.: CGC-09-275076 (ASBESTOS) Plaintiffs, ELLIOTT COMPANY FKA “ELLIOTT v. TURBOMACHINERY CO., INC.” ’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS ASBESTOS DEFENDANTS (B*P), et al, Complaint Filed: February 18, 2009 Defendants, COMES NOW defendant ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” , for itself alone, and in answer to Plaintiff’s unverified complaint on file herein, and to each and every cause of action thereof, and by virtue of the provisions of CCP § 431.30, now files its general denial to said complaint and to each and every cause of action thereof, and in answer to all the allegations thereof, denies that the Plaintiff has been damaged in any sum or sums whatsoever, or at all, by any act or omission of this answering defendant. AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the Complaint and each cause of action therein, fails to state facts sufficient to constitute a cause of action. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery by the applicable statute of ae ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO,, INC.” ’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 limitations, including but not limited to California Code of Civil Procedure Sections 319, 320, 337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and California Commercial Code Sections 2725(1) and 2725(2). AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the Plaintiff was himself negligent and careless in and about the matters and events alleged in the Complaint, and said negligence proximately contributed to the alleged damages, if any there were, and as a result thereof, the principles of equitable comparative negligence must be applied to bar Plaintiff's action. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint by Plaintiff, if any there were, were caused by the carelessness and negligence on the part of the remaining defendants in that said carelessness and negligence on the part of said remaining defendants proximately contributed to the happening of the subject event and the injuries, loss or damages alleged by the Plaintiff herein, and that any judgment rendered against this answering defendant be reduced or nullified to the extent of such negligence and carelessness on the part of the remaining defendants as aforesaid. AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the Plaintiffs injuries and damages which may have been sustained as a result of events mentioned in the Complaint, if any there were, were proximately caused by the carelessness and negligence of Plaintiff and the remaining defendants, and that the respective negligence of each said party to this suit ought to be equitably apportioned among the parties hereto. AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that at the time of the occurrence of the matters mentioned in the Plaintiff's Complaint, the Plaintiff himself had knowledge of those matters alleged in the Complaint and Plaintiff did, with said knowledge, voluntarily and of their free will and act, place himself in an unsafe and dangerous position and by reason thereof, Plaintiff did assume the risk and all risks ordinarily incident thereto. 2 ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 ity AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the products referred to in the Complaint were not used in a safe and normal manner or in the manner in which they were intended to be used, and that such misuse proximately contributed to the injuries to Plaintiff and the damages and. losses resulting therefrom, if any there were, and bars Plaintiff's recovery herein. AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that prior to and at the time referred to in Plaintiff's Complaint, the products referred to in the Complaint were abused, altered, modified, or changed in a manner that was not reasonably foreseeable, that such abuse, modification, alteration, or change proximately contributed to the injuries to Plaintiff and the damages and losses resulting therefrom, if any there were, and bars Plaintiff's recovery herein. AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that at all times herein mentioned, Plaintiff was in the course and scope of their employment and that the injuries sustained by Plaintiff, if any there were, were caused or contributed to by the carelessness and negligence of Plaintiffs employers, entitling this answering defendant to a set-off in an amount equal to the extent of payments made by said employers' workers’ compensation carrier. AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the Plaintiff's employers were negligent and careless in and about the matters alleged in the Complaint and proximately contributed to the injuries and damages, if any there were, sustained by Plaintiff; that by reason of the premises said employers and their workers' compensation carrier are barred from recovery of any payments heretofore or hereafter made to Plaintiff pursuant to the workers' compensation laws of the State of California under the doctrine of Witt v. Jackson, 57 Cal.2d 57. AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by Labor Code §3600, et seq. 3- ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 ity AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by the Doctrine of Laches. AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant which are alleged to have caused injury to Plaintiff was manufactured in compliance with and supplied pursuant to mandatory government specifications which required the use of asbestos. Accordingly, defendant is immune from liability for any damages suffered by Plaintiff as a consequence of exposure to asbestos contained in such products. AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this Answering Defendant alleges that its compliance with all governmental standards is a complete defense to Plaintiff’s action. AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff failed and neglected to use reasonable care to protect himself and to minimize the losses and damages complained of, if any there were. AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any claim based on breach of warranty by reason of their failure to fulfill the conditions of warranties alleged in the Complaint in the event such alleged warranties are proved at trial. AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff within a reasonable time failed to give notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file herein in the manner and form prescribed by law. AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that there was no privity or other legal relationship between this answering defendant and Plaintiff herein sufficient to entitle Plaintiff to any legal relief by said defendant. 4. ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is prohibited because it would deprive defendant of its property without due process of law under the 14th Amendment of the United States Constitution and under the California Constitution. See U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art. I, §7(a). AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is barred by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VII; California Constitution, Art. I, §17. AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is barred by the Constitutional Prohibition against impairing the obligation of contracts. See U.S. Constitution, Art. 1, §X, C1.1, See California Constitution, Art. 1, §9. AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages pursuant to California law herein constitutes a violation of equal protection prohibited by the United States Constitution and the Constitution of the State of California and therefore fails to make a claim upon which relief can be granted. AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the complaint on file herein fails to state facts sufficient to constitute a cause of action for punitive damages. AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages must consider the degree of reprehensibility of defendant's conduct, the disparity between the compensatory damages and punitive damages and the difference between punitive damages, the ratio of actual harm suffered by the Plaintiff to the amount of punitive damages and the civil sanctions that could or would be imposed for comparable conduct. These considerations were outlined by the U.S. Supreme Court in BMW of North America v. Gore (1996) 517 U.S. 559, and 5. ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO,, INC.” °S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 Cooper Industries Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, and State Farm Mut. Auto, Ins. Co. v. Campbell (2003) 538 U.S. 408. AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that, to the extent Plaintiff may be able to prove their allegations concerning liability, injuries and damages, which are specifically denied, they were the result of intervening acts of superseding negligence on the part of a person or persons over whom this defendant had neither control nor the right of control. AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any causes of action by the Doctrine of Waiver. AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff is estopped from asserting any causes of action by their conduct. AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff has failed to join necessary and indispensable parties. AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff has improperly joined or misjoined it and other parties to this action. AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe or defective in any manner are preempted by federal law. AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that any injuries and damages, if any there be, alleged by Plaintiff in the Complaint, were proximately caused by an unforeseeable allergic reaction to the product or products and/or one or more of its, or their, components. AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the product in question was used after 6 ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” ’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 knowledge of the defect, if any, that existed therein. AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that if Plaintiffs claims were already litigated and resolved in any prior action, 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. AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff's claims are barred by the primary right doctrine as there is another action pending between the same parties on the same cause of action. AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiffs claims are barred by the principles of res judicata. AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the substantive law of Plaintiffs domicile or a jurisdiction other than California, is applicable. AND AS FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that, at all times herein pertinent, Plaintiff and/or Plaintiff's employer was a sophisticated user of the subject product and that defendant had no duty to warn about dangers, risk, or harm. of which the sophisticated user was already aware or of which the sophisticated user should have been aware. AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, to the extent the Complaint asserts Defendant’s alleged “market share” liability, or “enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action against Defendant. AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Plaintiff failed to exercise due diligence to mitigate their loss, injury or damages; -7- ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 accordingly, the amount of damages to which Plaintiff is entitled, should be reduced by the amount of damages which would have otherwise been mitigated. AS AND FOR A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Plaintiff is barred from recovery in that all products installed, removed, distributed, sold and/or supplied by Defendant, if any, were in conformity with the existing state-of-the-art, and as a result, these products were not defective in any manner. AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, the 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 this Defendant’s alleged percentage share of the applicable market. AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Plaintiff's claims are or may be barred in whole or in part by collateral estoppel, issue preclusion and/or release. AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that it is immune from liability for any alleged failure to warn Plaintiff of material risks associated with Defendant’s products, if any, because such risks were or should have been obvious to a reasonably prudent product user in Plaintiff's position, or were otherwise a matter of common knowledge to persons in the same or similar position to Plaintiff. AS AND FOR A FORTY-FORTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was employed and was entitled to receive Workers’ Compensation benefits from his employer’s workers’ compensation carrier; that Defendant did not control Plaintiff's work activities at his worksites; that all of Plaintiffs employers, other than Defendant , were negligent in and about the matters refereed to in said Complaint, that other parties over whom Defendant had no control were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers and other parties proximately and concurrently contributed to the happening of the accident and to the loss or damage complained of by Plaintiff, if any there was; and as a result thereof, Defendant bears no liability for Plaintiff's alleged damages. 8. ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES 1 WHEREFORE, this answering defendant prays for judgment as follows: 2 1. That Plaintiff take nothing by way of their Complaint or any cause of action 3 || thereof against this answering defendant; 4 2. That the Court award judgment in favor of this answering defendant; 5 3. For reasonable attorneys’ fees; 6 4. For costs of suit and disbursements; and 7 5. For such other and further relief as the Court may deem proper. 8 || Dated: May 6, 2009 IMAI, TADLOCK, KEENEY & CORDERY, LLP 9 % 0 a I By: /S/ Theodore T. Cordery z Theodore T. Cordery 3 2 Attorneys for Defendant Bs ELLIOTT COMPANY FKA “ELLIOTT c x 3 TURBOMACHINERY CO., INC.” 2 4 x a 8 15 3 6 3 a a 7 z 18 = 9 20 21 22 23 24 25 26 27 28 9. ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO.,, INC.” ’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSLAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP 0 54104 PROOF OF SERVICE USING LEXISNEXIS 1, Heather Cherry, declare: 1am a resident of the State of California and over the age of cighteen years, and nota party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, California 94104. On the date of execution below, | electronically served the document via LexisNexis File & Serve described as: ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” ’°S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve Web site. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 15, 2009, at San Francisco, California /s/ Heather Cherry. Heather Cherry Van Degrift, Paul v. Asbestos Defendants (B*P). SAN FRANCISCO SUPERIOR COURT NO. CGC-09-275076 -10- ELLIOTT COMPANY FKA “ELLIOTT TURBOMACHINERY CO., INC.” "S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS