Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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                                JOSEPH DUFFY, State Bar No. 241854
AMY J. TALARICO, State Bar No. 209112

2 | GRAHAM C. MILLS, State Bar No. 233261 ELECTRONICALLY
MORGAN, LEWIS & BOCKIUS LLP
3 || One Market, Spear Street Tower FILED
San Francisco, CA 94105-1126 Superior Court of California,
4 | Tel: 415.442.1000 County of San Francisco
Fax: 415.442.1001 AUG 04 2010
5 Clerk of the Court
Attorneys for Defendant BY: CHRISTLE ARRIOLA
6 | SCOTT TECHNOLOGIES, INC. Deputy Clerk
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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1 || LAURANCE HAGEN, Case No. CGC-10-275582
Plaintiff, DEFENDANT SCOTT TECHNOLOGIES,
INC.’S ANSWER TO PLAINTIFF'S
VS. UNVERIFIED COMPLAINT FOR

PERSONAL INJURY - ASBESTOS
CALIFORNIA, et al.

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4 || ASSOCIATED INSULATION OF
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Defendants.
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MorGAN, Lewis &
BOcKIUs LLP
Ariowvers AT Law
SAN FRANCISCO

DB1/65355996.1
DEFENDANT SCOTT TECHNOLOGIES, INC.°S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSBR WON

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MORGAN, Lewis &
Bockius LLP
ATIORNEYS AT LAW

Saw FRANCISCO

Scott Technologies, Inc. (“Defendant” or “Scott”), 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, ef seq.

FIFTH 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 Plaintiffs recovery herein.

DB1/65355996.1 1

/EFEND: INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSom IN DW

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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 Com-
plaint 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 parties 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 manu-
factured 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.
DB1/65355996.1 2

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS.1 THIRTEENTH AFFIRMATIVE DEFENSE

2 Plaintiff failed to mitigate his damages, if any, in that he failed to use reasonable diligence
3 | in caring for his injuries and reasonable means to prevent their aggravation or to accomplish their
4 | healing.

5 FOURTEENTH AFFIRMATIVE DEFENSE

6 The Complaint, and each cause of action thereof, which is admittedly based upon a lack of
7 | identification of the manufacturer of the alleged injury-causing product, fails to state facts suf-

8 || ficient 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

11 | Constitution and by Article I, Section 7, of the Constitution of the State of California.

12 FIFTEENTH AFFIRMATIVE DEFENSE

13 The product involved was materially altered or changed by a party or parties other than,
14 | and without the permission of, Defendant, its employees, servants, or other agents, and such

15 | alteration or change created the alleged defect, if any, which was the proximate or legal cause of
16 | Plaintiffs injuries, or damages, if any.

17 SIXTEENTH AFFIRMATIVE DEFENSE

18 The asbestos-containing products, if any, for which Defendant had legal responsibility
19 || were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged,

20 | distributed, marketed and/or sold in accordance with contract specifications imposed by its co-
21 | defendants, by the U-S. Government, by Plaintiff's employers and by third parties yet to be

22 |) identified.

23 SEVENTEENTH AFFIRMATIVE DEFENSE
24 Plaintiff's Complaint and each purported cause of action therein are barred under the

25 | government contractor defense.

26 EIGHTEENTH AFFIRMATIVE DEFENSE
27 The products, substances, and equipment referred to in the Complaint were properly

woxcaw, tem28 | designed and manufactured, and safe for the purpose intended. Said products, substances, and
Bockius LLP DB1/65355996.1 3

Acronis Ar baw DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFFS
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27

MORGAN, Lewis &
Bocius LLP
ATTORNEYS AT LAD
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 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

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.

DB1/65355996.1 4

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSny nw

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ATIORMEYS AT LAW
SAN FRANcrsco

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, ef seq.)
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, carele-
ssness, 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.

DB1/65355996.1 5

DEFENDANT SCOTT TECHNOLOGIES, INC,’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS27

Morcan, Lewss &
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

oe

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

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

Plaintiff's 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.

DB1/65355996.1 6

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSeo ay DR WA &

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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,
DB1/65355996.1 7

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSC0 CNY DW FB BW NH

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installing, contracting, or installation, repairing, marketing, warranting, re-branding, manu-
facturing for others, packaging and advertising a certain substance, the generic name of which is
asbestos.
FORTIETH AFFIRMATIVE DEFENSE

Plaintiff's Complaint and each purported cause of action alleged therein are barred by the
equitable Doctrine of Unclean Hands.

FORTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff's Complaint and each purported cause of action alleged therein are barred by the
equitable Doctrine of Waiver.

FORTY-SECOND AFFIRMATIVE DEFENSE

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aintiff’s Complaint and each purported cause of action alleged therein are barred by the

equitable Doctrine of Estoppel.
FORTY-THIRD AFFIRMATIVE DEFENSE
If Defendant provided the products alleged to have been defective, and without admitting
that it did so or that any product was defective, Defendant provided such products to distributors
or other intermediaries, including Plaintiffs’ employers, who were knowledgeable, informed and
sophisticated concerning the use of the products and the alleged risks to the health of ultimate
users, such as Plaintiffs, from the use of the products.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff's causes of action are barred pursuant to Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56 because Plaintiff and/or his employer are sophisticated users.
FORTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiff's causes of action are barred pursuant to Taylor v. Elliot Turbomachinery Co.,
Inc. (2009) 171 Cal.App.4th 564, because Plaintiff has not pled and cannot show that Plaintiff
was exposed to asbestos-containing products that were manufactured, sold or distributed by
Defendant or that were original to any equipment alleged to be manufactured, sold or distributed

by Defendant.

DBI/65355996.1 8

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS.Morcan, Lewis &
Bockius LLP
ATTORNEYS AT Law
SAM 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(b)(3)(4).

WHEREFORE, this Defendant prays that Plaintiff's 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: August 4, 2010 Respectfully submitted,
MORGAN, LEWIS & BOCKIUS LLP

x

Graham C. Mills

One Market, Spear Street Tower
San Francisco, CA 94105
415/442-1000

SBN 233261

By

Attorneys for Defendant
SCOTT TECHNOLOGIES, INC.

DB1/65355996.1 9

DEFENDANT SCOTT TECHNOLOGIES, INC,’S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSwa

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Saw Peancisco

PROOF OF SERVICE

Laurance Hagen vs. Associated Insulation of California, et al.
San Francisco Superior Court Case No. CGC-10-275582

Iam 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 August 4, 2010, [ served the within documents:

DEFENDANT SCOTT TECHNOLOGIES, INC.’S ANSWER TO PLAINTIFF’S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY — ASBESTOS

x] 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.

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.

Executed on August 4, 2010, at San Francisco, California.

Bridget Mullins
Morgan, Lewis & Bockius

One Market, Spear Street Tower
San Francisco, CA 94105
415-442-1000

DB1/65355996.1

PROOF OF SERVICE