Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]
BRYDON HUGO & PARKER

135 Main Street, 20th Floor ELECTRONICALLY
San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 Superior Court of California,
Facsimile: (415) 808-0333 County of San Francisco
Attorneys for Defendant AUG 12 2010
BAYER CROPSCIENCE, INC., successor to BY: WILLIAM TRUPEK
AMCHEM PRODUCTS, INC. Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

LAURANCE HAGEN, (ASBESTOS)
Case No. CGC-10-275582
Plaintiff(s),
v8. ANSWER OF BAYER CROPSCIENCE, INC.,
SUCCESSOR TO AMCHEM PRODUCTS,
ASSOCIATED INSULATION OF INC. TO COMPLAINT FOR PERSONAL
CALIFORNIA, et al., INJURY - ASBESTOS
Defendants.

COMES NOW Defendant BAYER CROPSCIENCE, INC., successor to AMCHEM
PRODUCTS, INC. (“AMCHEM” or “Defendant”) denying liability for itself and any
alternate entities named in the complaint, and answering plaintiff's Complaint for Personal
Injury — Asbestos (hereinafter the “Complaint’”), on file herein, admits, denies, and alleges
as follows:

GENERAL DENIAL

Under the provisions of Section 431.30(d), California Code of Civil Procedure, this
answering 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, and denies that plaintiff is entitled to recover damages of any kind in

any amount whatsoever from AMCHEM.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

RESERVATION OF RIGHT TO TRIAL BY JURY

AMCHEM teserves the right to a trial by jury.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE

Failure to State a Cause of Action

This answering defendant alleges that plaintiff's Complaint and each of the causes of
action for relief alleged therein, fails to state a cause of action against this answering}
defendant.

SECOND AFFIRMATIVE DEFENSE

Contravention of Defendant's Constitutional Rights to Due Process of Law

The Complaint and each cause of action thereof, which is admittedly based upon a
lack of identification of the manufacturer of, and contractor using or distributing 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 of the United States Constitution and by Article I,
Section 7, of the Constitution of the State of California.

THIRD AFFIRMATIVE DEFENSE

Denial of Defendant’s Constitutional Rights to Equal Protection of the Laws

The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
would constitute a denial by this Court of defendant's constitutional right to equal]
protection of the laws as preserved by the Fourteenth Amendment of the United States|
Constitution and by Article I, Section 7, of the Constitution of the State of California.

FOURTH AFFIRMATIVE DEFENSE

Unconstitutional Taking of Private Property for Public Use Without Just Compensation

The Complaint, and each cause of action thereof, which is admittedly based upon a

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

lack of identification of the manufacturer, and contractor using or distributing the alleged

injury-causing product, fails to state facts sufficient to constitute a cause of action in that|

plaintiff has asserted claims for relief which, if granted, would constitute the taking of

private property for public use without just compensation in contravention of the Fifth and|

Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and

19, of the Constitution of the State of California, and the applicable California statutes.
FIFTH AFFIRMATIVE DEFENSE

Comparative Fault

This answering defendant alleges that the damages, if any, complained of by
plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict|
liability of plaintiff or other defendants, firms, persons, corporations, unions, employers
and entities other than AMCHEM, and that said negligence, fault, breach of contract and/or|
strict liability comparatively reduces the percentage of any negligence, fault, breach of
contract or strict liability for which AMCHEM is legally responsible, if any be found, which|
liability this defendant expressly denies. Further, this answering defendant alleges that|

plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents

complained of herein, and said incidents and the injuries and damages, if any, sustained by|
plaintiff, were directly and proximately caused and contributed to by the carelessness and
negligence of said plaintiff.

SIXTH AFFIRMATIVE DEFENSE

Contributory Negligence
This answering defendant alleges that plaintiff did not exercise ordinary care,
caution or prudence to avoid the incidents complained of herein, and said incidents and the|
injuries and damages, if any, sustained by plaintiff, were directly and proximately caused|

and contributed to by the carelessness and negligence of said plaintiff.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

SEVENTH AFFIRMATIVE DEFENSE

Uncertainty

This answering defendant alleges that plaintiff's Complaint and all purported causes
of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on|
any theory.

EIGHTH AFFIRMATIVE DEFENSE

Laches
This answering defendant alleges that plaintiff unreasonably delayed in bringing this
action and that such delay substantially prejudiced defendant, and that this action is|
therefore barred by the Doctrine of Laches.

NINTH AFFIRMATIVE DEFENSE

Statute of Limitations

This answering defendant alleges that plaintiff's Complaint and the purported
causes of action therein are barred by all statutes of limitation, including, but not limited to,
the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and
340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff’s claims are
further barred by the statute of limitations of states other than California pursuant to
California Code of Civil Procedure § 361.

TENTH AFFIRMATIVE DEFENSE

Failure to Mitigate

This answering defendant alleges that plaintiff failed to mitigate damages which
plaintiff contends he suffered, and plaintiff is therefore barred from any recovery
whatsoever, or alternatively, any damages found must be reduced in proportion to such
failure to mitigate.

ELEVENTH AFFIRMATIVE DEFENSE

Estoppel

This answering defendant alleges that as a result of the acts, conduct and/or

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

omissions of plaintiff and his agents, or any of them, and each cause of action presented|
therein, is barred under the Doctrine of Estoppel.

TWELFTH AFFIRMATIVE DEFENSE

Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action|
alleged therein.
THIRTEENTH AFFIRMATIVE DEFENSE

Acquiescence

Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of this answering defendant, thus barring plaintiff from any relief as|
prayed for herein.

FOURTEENTH AFFIRMATIVE DEFENSE

Notice of Dangers

Plaintiff was advised, informed, and warned of any potential hazards and/or
dangers, if there were any, associated with the normal or foreseeable use, handling, storage}
and in place asbestos of the products, substances, equipment and at premises in which|
exposure is claimed as is described in the Complaint and is therefore barred from any relief|
prayed for.

FIFTEENTH AFFIRMATIVE DEFENSE

Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in
the plaintiff's Complaint conformed to statutes, government regulations, and industry
standards based upon the state of knowledge existing at all relevant times.

SIXTEENTH AFFIRMATIVE DEFENSE

Compliance with Specifications

This answering defendant alleges that the asbestos products or asbestos used or in

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

place at any premises, if any, for which AMCHEM had any legal responsibility, were|
manufactured, packaged, distributed or sold in accordance with contract specifications|
imposed by its co-defendants, by the U.S. Government, by the State of California, by|
plaintiff's employers, or by third parties yet to be identified.

SEVENTEENTH AFFIRMATIVE DEFENSE

No Conspiracy
This answering defendant alleges that AMCHEM has no liability for the acts,
omissions or otherwise of any other defendant or entity because AMCHEM did not become}
legally responsible for the acts of any such defendant, nor entity, by any communication,
alleged, implied, or actual, nor act, action, or activity, and never was, nor is, a conspirator]
nor co-conspirator with any other defendant or entity.

EIGHTEENTH AFFIRMATIVE DEFENSE

State-of-the-Art
This answering defendant alleges that all of its activities, products, materials and its
premises at issue here at all times were conducted, used, produced, marketed, and operated
in conformity with the existing scientific, medical industrial hygiene and consumer
knowledge, art and practice and state-of-the-art.

NINETEENTH AFFIRMATIVE DEFENSE

No Foreseeable Risk to Plaintiff

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 its activities, materials, products, activities or premises|
presented a foreseeable risk of harm to plaintiff in the normal and expected course of such
activities and use of such materials and products.

TWENTIETH AFFIRMATIVE DEFENSE

No Right to Control

This answering defendant alleges that any loss, injury, or damage incurred by

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

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BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

Plaintiff was proximately and legally caused by the negligent or willful acts or omissions of
parties which AMCHEM neither controlled, nor had the right to control, and was not
proximately caused by any acts, omissions, or other conduct of AMCHEM.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated
and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure}
of the State of California and/or other statutes of the State of California, including without|
limitation C.C.P. § 338(d).
TWENTY-SECOND AFFIRMATIVE DEFENSE

Misuse and Improper Use of Products

This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which AMCHEM had any legal]
responsibility, which allegations are expressly herein denied, the injuries were solely caused
by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose and|
improper use and abuse which was made of said product by persons or entities other than
AMCHEM.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Due Care and Diligence

This answering defendant alleges that AMCHEM exercised due care and diligence in
all of the matters alleged in the Complaint, and no act or omission by AMCHEM was the|
proximate cause of any damage, injury or loss to plaintiff.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

Alteration and Misuse of Product

This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos distributed, used, supplied by defendant or used or in place at

any premises owned or controlled by defendant, were not disturbed or used in the presence}

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

of plaintiff and not supplied to the plaintiff, and if so, were substantially altered by others
and/or used in a manner inconsistent with the labeled directions.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Equal or Greater Knowledge of Hazards

This answering defendant alleges that any and all products containing asbestos used,

distributed or supplied by defendant were distributed or supplied to, or for, persons or|

entities who had knowledge with respect to the hazards, if any, resulting from exposure to|
products containing asbestos, which knowledge is equal to or greater than the knowledge}
of AMCHEM.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Other Parties’ Liability and Negligence

This answering defendant alleges that if there was any negligence or any other form
of liability on the part of any of the parties named herein, it was the sole and exclusive}
negligence and liability of the other persons or entities and not of AMCHEM.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Apportionment and Offset

This answering defendant is informed and believes and thereon alleges that
plaintiff's acts and omissions, including plaintiff's agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged|
damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court}
apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset against]
any damages awarded to plaintiff.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Contribution/Equitable Indemnity

This answering defendant alleges, in the event it is held liable to Plaintiff, any such

liability is expressly herein denied, and any other co-defendants are likewise held liable,

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

AMCHEM is entitled to a percentage contribution of the total liability from said co-
defendants in accordance with the principles of equitable indemnity and comparative}
contribution.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Assumption of Risk by Plaintiff's Employer(s)

This answering defendant alleges that the Complaint and each cause of action
alleged therein are barred on the grounds that plaintiff's employer or employers knowingly|
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and
voluntarily and knowingly assumed all of the risks incident to said operations, acts and
conduct at the time and place mentioned in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE

Assumption of Risk
This answering defendant alleges plaintiff assumed the risk of the matters referred to
in his Complaint and that plaintiff knew and appreciated the nature of the risk and that the|

plaintiff voluntarily accepted this risk.

THIRTY-FIRST AFFIRMATIVE DEFENSE

No Market Share
This answering defendant alleges that AMCHEM did not have an appreciable share
of the market for the asbestos-containing products which allegedly caused plaintiff’s|
injuries, which occurrence AMCHEM expressly denies. Accordingly, AMCHEM may not
be held liable to plaintiff based on its alleged share of the applicable product market.
THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff Fails to Join a Substantial Market Share

The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action against this answering defendant, in that defendant has failed to}
join a substantial market share of the producers or products to which plaintiff was allegedly

exposed.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

THIRTY-THIRD AFFIRMATIVE DEFENSE

Insufficient Facts to Show Substantial Market Share of this Defendant

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To the extent the Complaint asserts defendant’s alleged “alternative,” “market
share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute al
cause of action against this defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Independent, Intervening or Superseding Cause

This answering defendant alleges that if plaintiff suffered any injuries attributable to
the use of any product containing asbestos which was used, distributed or sold by
defendant, which allegations are expressly denied herein, the injuries were solely caused by|
an unforeseeable, independent intervening and/or superseding event beyond the control
and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded
by the negligence and wrongful conduct of others.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Not a Substantial Factor
This answering defendant alleges that the Complaint and each cause of action
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial
factor in bringing about the injuries and damages complained of by plaintiff and did not
increase the risk that plaintiff would suffer the injuries and damages complained of.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Insufficient Exposure

Any exposure of plaintiff to defendant's activities, products or exposure to asbestos
or asbestos-containing products at AMCHEM’s premises 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.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

No Successor Liability
This answering defendant alleges that AMCHEM has no liability for the acts,

omissions or otherwise of any other defendant or any other entity because AMCHEM did|
not become legally responsible for the acts of any such defendant or entity given the facts|
and circumstances of the pertinent transactions and never was, nor is, a successor-in-|
interest, a successor-in-liability or an alternate entity for any other user, manufacturer,
supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing|
products.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

Lack of Privity
This answering defendant alleges that plaintiff has failed to state a cause of action in
that the Complaint fails to allege that there was privity between defendant on the one hand,
and plaintiff on the other, and furthermore, such privity did not exist between defendant on|
the one hand, and plaintiff on the other.

THIRTY-NINTH AFFIRMATIVE DEFENSE

Secondary Assumption of Risk

This answering defendant alleges that any and all products containing asbestos used,
distributed or supplied by defendant were used, distributed or supplied to, or for, persons|
or entities who had knowledge with respect to the hazards, if any, resulting from exposure}
to products containing asbestos, which is equal to or greater than, the knowledge of|
AMCHEM, i.e. AMCHEM's liability should be reduced in proportion to the knowledge of|
plaintiff.

FORTIETH AFFIRMATIVE DEFENSE

Civil Code Section 1431.2
This answering defendant alleges that the provisions of California Civil Code §

1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint

ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

and to each cause of action therein.

FORTY-FIRST AFFIRMATIVE DEFENSE

Workers’ Compensation Exclusive Remedy

This answering defendant alleges that the Complaint is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,
California Labor Code §§ 3600, et seq.

FORTY-SECOND AFFIRMATIVE DEFENSE

Offset for Workers’ Compensation Benefits

This answering defendant alleges that to the extent plaintiff herein recovered, or in
the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by|
defendant for a credit or offset.

FORTY-THIRD AFFIRMATIVE DEFENSE

Express Contractual Indemnity

This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a AMCHEM premises, AMCHEM contracted with plaintiff|
and/or plaintiff's employer(s) for them to fully assume all responsibility for insuring}
plaintiffs safety, to guarantee that no hazardous condition existed, and/or to warn and
protect against any such conditions, during the performance of plaintiff's work, and,
further, to fully indemnify AMCHEM, and to hold AMCHEM harmless, for all
responsibility and liability arising out of said work, and/or any injuries allegedly incurred
by plaintiff as a result of any of said work. AMCHEM reserves all rights to assert these}
provisions of contractual indemnity.

FORTY-FOURTH AFFIRMATIVE DEFENSE

Consent
This answering defendant alleges that at all times mentioned, plaintiff consented to

the alleged acts or omissions of AMCHEM.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

FORTY-FIFTH AFFIRMATIVE DEFENSE

Unusual Susceptibility

This answering defendant alleges that each of plaintiff's injuries and damages, if any,
were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which AMCHEM is not}
liable.

FORTY-SIXTH AFFIRMATIVE DEFENSE

Good Faith
This answering defendant alleges that plaintiff's claim for punitive damages is
barred because AMCHEM at all times and places mentioned in the Complaint acted|
reasonably and in good faith, and without malice or oppression towards the plaintiff.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

Sophisticated User

This answering Defendant alleges that, as the California Supreme Court ruled in
Johnson v. American Standard (2008) 43 Cal.4* 56, AMCHEM was under no legal duty to
warn plaintiff of the hazard associated with the use of products containing asbestos or their
existence at any premises owned, operated, controlled or otherwise by AMCHEM, as
purchasers of said products, the plaintiff, plaintiff's employers, his unions, and/or certain
third parties yet to be identified, were knowledgeable and sophisticated users and were ina
better position to warn plaintiff of the risk associated with using products containing
asbestos and, assuming a warning was required, it was the failure of such persons or
entities to give such a warning that was the proximate and superseding cause of plaintiff's
damages, if any.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

Work Hazard Precautions
This answering defendant alleges that plaintiff's employer(s) was/were advised and

warned of any potential hazards and/or dangers associated with the normal and|

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

foreseeable conduct with, or storage and disposal of the products referred to in the|
Complaint, in a manner which was adequate notice to an industrial user of such product to}
enable it to inform its employees to take appropriate work precautions to prevent injurious|
exposure.

FORTY-NINTH AFFIRMATIVE DEFENSE

Failure to Join Indispensable Parties

Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein.

FIFTIETH AFFIRMATIVE DEFENSE

No Standing Under California Civil Code §§ 1708-1710

Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of
warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and|
therefore the Complaint and each cause of action thereof fails to state facts sufficient to}
constitute a cause of action against this answering defendant.

FIFTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff is not a Real Party in Interest

Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party in
interest and is thereby precluded from any recovery whatsoever as prayed for herein.

FIFTY-SECOND AFFIRMATIVE DEFENSE

Fraud and Conspiracy are Not Separate Forms of Damages

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 answering defendant, but is simply cumulative and included in general

damages.

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

FIFTY-THIRD AFFIRMATIVE DEFENSE

Failure to Allege with Particularity

This answering defendant alleges that plaintiff's Complaint fails to set out its claims
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims|
becomes known.

FIFTY-FOURTH AFFIRMATIVE DEFENSE

Punitive Damage Prohibited

This answering defendant alleges that plaintiff's Complaint fails to state facts
sufficient to support an award of punitive or exemplary damages against AMCHEM. The|
Complaint, to the extent that it seeks exemplary or punitive damages, violates AMCHEM’s|
right to procedural due process under the Fourteenth Amendment of the United States|
Constitution, and the Constitution of the State of California, and fails to state a cause of|
action upon which either punitive or exemplary damages can be awarded.

FIFTY-FIFTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

This answering defendant alleges that the Complaint, to the extent that it seeks
punitive or exemplary damages, violates AMCHEM’s right to protection from excessive
fines as provided in the Eighth Amendment of the United States Constitution and Article I,
Section 17 of the Constitution of the State of California, and violates AMCHEM'’s right to}
substantive due process as provided in the Fifth and Fourteenth Amendments of the United|
States and California Constitutions, and thus fails to state a cause of action supporting an|
award of punitive or exemplary damages.

FIFTY-SIXTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

The causes of action asserted herein by plaintiff fail to state facts sufficient to

constitute a cause of action in that plaintiff has asserted claims for punitive damages which,

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOSul

wo emn a

BRYDKIN
Huo & PARKER
135 MAINSTREGT

20" FLOOR
San Francisco, CA 94105

if granted, would violate the prohibition against laws impairing the obligation of contracts|
set forth in Article I, Section 10, of the United States Constitution.

FIFTY-SEVENTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

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.

FIFTY-EIGHTH AFFIRMATIVE DEFENSE

Negligent Hiring Claim Invalid
An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.
4th 1235 (2001).
FIFTY-NINTH AFFIRMATIVE DEFENSE

Right to Amend
This defendant will assert any and all additional defenses that arise during the course
of this litigation and reserves the right to amend its answer to assert such defenses.

SIXTIETH AFFIRMATIVE DEFENSE

Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,
disease or cause other than as alleged.

SIXTY-FIRST AFFIRMATIVE DEFENSE

No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be|
held jointly and severally liable with the other named defendants.
SIXTY-SECOND AFFIRMATIVE DEFENSE

Plea in Abatement

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ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT
FOR PERSONAL INJURY - ASBESTOS1 Plaintiff, and each of them, lacks the legal capacity to proceed and maintain this

2 |Jaction and is thereby precluded from any recovery whatsoever as prayed from herein.
3 PRAYER
4 WHEREFORE, this answering defendant prays for judgment as follows:
5 1. That Plaintiff take nothing by reason of their Complaint or any claims stated
6 ||therein;
7 2. That Plaintiffs Complaint and each cause of action contained therein be
8 ||dismissed with prejudice against AMCHEM;
9 3. For costs of suit; and
10
11
12
13 4. For such other and further relief as the Court deems just and appropriate in|

14 || the circumstances.

15
16 ||Dated: August 12, 2010 BRYDON HUGO & PARKER
17
18 By: /s/ John R. Brydon
John R. Brydon
19 George A. Otstott
Attorneys for Defendant
20 BAYER CROPSCIENCE, INC., successor to
AMCHEM PRODUCTS, INC.
21
22
23
24
25
26
27
28
17
Bryan

AuGo & PARKER |) ANSWER OF BAYER CROPSCIENCE, INC., successor to AMCHEM PRODUCTS, INC. TO COMPLAINT

oon FOR PERSONAL INJURY - ASBESTOS

San Francisco, CA 94105Hagen, Laurance
San Francisco County Superior Court Case No. CGC-10-275582

LexisNexis Transaction No. 32645882
PROOF OF SERVICE

lam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20' Floor, San
Francisco, California 94105. On the date below, I served the following:

ANSWER OF BAYER CROPSCIENCE, INC., SUCCESSOR TO AMCHEM
PRODUCTS, INC. TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS

on the following:

BRAYTON PURCELL LLP
222 Rush Landing Road
Novato, CA 94945

Fax: (415) 898-1247

AND SEE LEXIS NEXIS SERVICE LIST

xX By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

oo By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices. I am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in the

ordinary course of business. Tam aware that on motion of party served,

service is presumed invalid if posta

cancellation date or postage meter

date is more than one day after date of deposit for mailing in affidavit.

o By placing the document(s) listed above in a sealed envelope desi
for Federal Express overnight delivery and depositing s ame with fees
thereupon prepaid, in a facility regularly maintained by
addressed as set forth above.

o By causing personal delivery of the Sheva list "above! the
person(s) at the address(es) set forth ape ave.

Executed on August 12, 2010, at San Francis¢o, aN ni
Ne

I declare under penalty of perjury that the "abave vel o and correct
ns An

nated

Federal Express,

4 Melanie Guidry i

PROOF OF SERVICE

‘
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