Answer: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                LEWIS BRISBOIS BISGAARD & SMITH LLP
CAMILLE K. FONG, SBN# 113123

One Sansome Street, Suite 1400 ELECTRONICALLY
San Francisco, California 94104 FILED
Telephone: (415) 362-2580 Superior Court of California,
Facsimile: (415) 434-0882 County of San Francisco
Attorneys for Defendant APR 22 2009
GORDON PARK-LI, Clerk
KAISER GYPSUM COMPANY, INC. BY: RAYMOND K. WONG
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
CHARLES HUSBAND, ) CASE NO. CGC -09-275098
)
Plaintiff, ) DEFENDANT KAISER GYPSUM
) COMPANY INC.’S ANSWER TO
ve ) PLAINTIFFS’ UNVERIFIED COMPLAINT
)
ASBESTOS DEFENDANTS (B*P), et al., ) ACTION FILED: March 2, 2009
)
Defendants. )
)

Defendant KAISER GYPSUM COMPANY, INC.’s (hereinafter “Defendant”) answers to
Plaintiff CHARLES HUSBAND (hereinafter “Plaintiff’) unverified Complaint for Personal Injury
{hereinafter “Complaint”) herein on its own behalf and on behalf of no other defendant or entity as
follows:

Pursuant to California Code of Civil Procedure $43 1.30(d), Defendant denies generally
each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by Plaintiff’ ‘therein state facts
sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts Defendant’s alleged “market share” liability, or

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTeC Om YW A

“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action against
Defendants.

THIRD AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein state facts sufficient
to entitle Plaintiff to an award of punitive damages against Defendant.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive Defendant ofits property
without due process of law under the California Constitution and United States Constitution.

FIFTH AFFIRMATIVE DEFENSE

‘The imposition of any punitive damages in this matter would violate the United States
Constitution’s prohibition against laws impairing the obligation of contracts.

SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure §§ 335.1, 337, 337.1,
337.15, 338, 338.1, 339, 340, 340.2, 340.8, and 343 and California Commercial Code §2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff's unreasonably delayed in bringing this action, without good cause therefore, and

thereby has prejudiced Defendant as a direct and proximate result of such delay; accordingly,
Plaintiff's action is barred by laches and by § 583 et. seq. of the Cade of Civil Procedure.
NINTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in each alleged
cause of action; this negligence proximately caused, in whole or in part, the damages alleged in the

Complaint. In the event Plaintiff is entitled to any damages, the amount of these

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTdamages should be reduced by the comparative fault of Plaintiff and any person whose negligent acts
or omissions are imputed to Plaintiff.
TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks and
hazards, if any, referred to in the Complaint and each alleged cause of action, and this undertaking
proximately caused and contributed to any loss, injury or damages incurred by Plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by Plaintiff were proximately caused by the negligent or
willful acts or omissions of parties whom Defendant neither controlled nor had the right to control,
and was not proximately caused by any acts, omissions or other conduct of Defendant.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by Plaintiff or by
others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and proximately
caused any loss, injury or damages incurred by Plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that 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.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate their loss, injury or damages, accordingly,
the amount of damages to which Plaintiff is entitled, if any, should be reduced by the amount of
damages which would have otherwise been mitigated.

FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks personal jurisdiction over the Defendant.

SIXTEENTH 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 are barred by the
provisions of California Labor Code, § 3600, et. seq.

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTSEVENTEENTH 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 insurance carricr; that all of Plaintiffs employers, other than Defendant, were negligent
in and about the matters referred to in said Complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to the happening of the accident and to the loss
or damage complained of by Plaintiff, if any there were; and that by reason thereof Defendant is
entitled to set off and/or reduce any such workers compensation benefits received or to be received
by Plaintiff against any judgment which may be rendered in favor of Plaintiff. (See Witt v. Jackson
(1961) 57 Cal.2d 57, 366 P.2d 641.)

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's
employers were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers proximately and concurrently contributed to any loss or
damage, including non-economic damages, complained of by Plaintiff, if any there were, Defendant
is not liable for said employers’ proportionate share of non-economic damages.

TH AFFIRMATIYV! EE

Defendant alleges that at the time of the injuries alleged im the Complaint, parties other than
this Defendant were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said parties proximately and concurrently contributed to any loss or damage,
including non-economic damages, complained of by Plaintiff, if any there were; and that Defendant
herein shall not be liable for said parties proportionate share of non-economic damages.

TWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of Plaintiff's
employers, other than Defendant, were sophisticated users of asbestos-containing products and said
employers negligence in providing the product to its employees in a negligent,
careless and reckless manner was a superseding cause of Plaintiff's injuries, if any.

Hf

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTTWENTY-FIRST AFFIRMATIVE DEFENSE
Defendant alleges that any exposure of Plaintiff to products manufactured, sold or distributed
by this Defendant 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

Defendant alleges that any products manufactured, sold or distributed by this Defendant were
not a substantial factor in bringing about the injuries and damages complained of by Plaintiff, and,
therefore, this Defendant may not beheld liable to Plaintiff as alleged.

TWENTY- THIRD AFFIRMATIVE DEFENSE

Defendant alleges that 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 to
Plaintiff, nor knew nor could have known that its product(s) presented a foreseeable risk of harm to
Plaintiff in the normal and expected use of such product(s).

TWENTY- FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that any products, substances, or equipment assembled, formulated, sold or
distributed by this answering Defendant were made consistent with the state of the art applicable to
said products, substances, or equipment at the time of their assembly, sale, formulation, or
distribution, and as a result, these products were not defective in any manner.

TWENTY- FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that if this Defendant is responsible to Plaintiff, which responsibility is
expressly denied, this Defendant shall be liable to Plaintiff only for the amount of non-economic
damages allocated to this Defendant in direct proportion to this Defendant s percentage of fault, ifany,
as required by Civil Code Section 1431.1 et seq.

TWENTY- SIXTH AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive, Worker's Compensation benefits from
Defendant under the Labor Code of the State of Califomia 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

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFES’ UNVERIFIED
COMPLAINTwe

a nw

rights to reimbursement for Worker s Compensation benefits Plaintiff has received or may in the
future receive.

TWENTY- SEVENTH AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive Worker’s 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, Defendant demands repayment of any such Worker’s
Compensation benefits in the event that Plaintiff recovers tort damages as a result of the industrial
injury allegedly involved here. Although Defendant denies the validity of Plaintiff's claims, in the
event those claims are held valid and not barred by the statute of limitations or otherwise, Defendant
asserts that cross-demands for money have existed between Plaintiff and Defendant and the demands
are compensated, so far as they equal each other, pursuant to California Code of Civil Procedure §
431.70.

Y-E FIRMATIVE

Atall times and places in the Complaint, 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- NINTH 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.

THIRTIETH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that Plaintiff asserts Defendant's alleged
liability as a successor, 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, installing, contracting for installation,

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTrepairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising
a certain substance, the generic name of which is asbestos.

THIRTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that as a result of the acts, conduct, and omissions of Plaintiffand his agents,

each cause of action presented in the Complaint has been waived.
THIRTY-SECOND AFFIRMATIVE DEFENSE

Defendant alleges that consumption of tobacco products is negligent per se because it is
“
Camille K. Caos

Attorneys for Defendant
KAISER GYPSUM COMPANY, INC.

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DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINTCALIFORNIA STATE COURT PROOF OF SERVICE
Charles Husband v. Asbestos Defendants, et al.
San Francisco Superior Court Case No. CGC-09-275098

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

At the time of service, | was over 18 years of age and not a party to the action. My business
address is One Sansome Street, Suite 1400, San Francisco, Califomia 94104,

On April , 2009, I served the following document(s): DEFENDANT KAISER
GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT

I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):

Attorn:

David R. Donadio, Esq.
Brayton & Purcell LLP
Attorneys at Law

222 Rush Landing Road
P.O. Box 6169

Novato, CA 94948-6169
Telephone: (415) 898-1555
Fax: (415) 898-1247

The documents were served by the following means:

[X] (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission via
Lexis/Nexis, I caused the documents to he sent to the persons at the e-mail addresses listed
above. I did not receive, within a reasonable time afier the transmission, any electronic
message or other indication that the transmission was unsuccessful.

I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.

Executed on April 2 , 2009, at San Francisco, California.

4810-7707-9555.1

DEFENDANT KAISER GYPSUM COMPANY INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED
COMPLAINT