Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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William M. Hake, Esq. (State Bar No. 110956)
Melissa E. Macfarlane, Esq. (State Bar No, 239811)

Anne K. Brauer, Esq. (State Bar No. 191318) ELECTRONICALLY

Rachael Buckman, Esq. (State Bar No. 263224)

COOLEY MANION JONES HAKE FILED.

KUROWSKILLP “Geunty of Son Francoco

201 Spear Street, Suite 1800 ‘oun

San Francisco, CA 94105 AUG 12 2010

Tel: (415) 512-4381 Clerk of the Court

Fax: (415) 512-6791 BY: WILLIAM TRUPEK
Deputy Clerk

Attorneys for Defendant

TEMPORARY PLANT CLEANERS, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

LAURANCE HAGEN, Case No.: CCG-10-275582
Plaintiff, DEFENDANT TEMPORARY PLANT
v. CLEANERS, INC.’S ANSWER TO
COMPLAINT FOR PERSONAL INJURY-
ASSOCIATED INSULATION OF ASBESTOS

CALIFORNIA et. al.,

Defendants.

COMES NOW, Defendant, TEMPORARY PLANT CLEANERS, INC., formerly known
as Plant Maintenance Inc. of California (hereinafter referred to as “answering defendant”), and for
itself alone, and in answer to the unverified Complaint of Plaintiff herein and as amended in the
future, allege as follows.

“Plaintiff” or “Plaintiffs”, as used in this Answer, means each Plaintiff individually as
well as collectively and, by definition, incorporates the words “and each of them.”

GENERAL DENIAL

Pursuant to the provisions of California Code of Civil Procedure § 431.30, this answering
defendant denies each, every and all of the allegations of the unverified Complaint and each and
every cause of action contained therein, and the whole thereof, and denies that Plaintiff has
sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at all.
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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSFIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)

Answering defendant alleges that the Complaint and each and every cause of action
alleged therein, fails to state facts sufficient to constitute a cause of action against this answering
defendant, and fails to state a claim upon which relief may granted.

SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)

AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges the Complaint, and every cause of action alleged therein, is
barred by California Code of Civil Procedure §§ 335, 338(1), 338(4), 339(1), 340(3), 340.2, 343,
353 by Commercial Code § 2725, and by all other applicable statute of limitations provisions, and
Plaintiff is thereby precluded from recovering the damages and other relief sought in the
Complaint.

THIRD AFFIRMATIVE DEFENSE
(Statutes of Limitations/Repose of Other States)

AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
the applicable laws, rules, statutes or regulations, including but no limited to, California Code of
Civil Procedure §§ 340(3) and 340.2 and sister state statutes of limitations and statutes of repose
borrowed by California Code of Civil Pracedure § 361, requiring the institution of suit within a
certain period of time following its accrual, were not complied with, and, therefore, Plaintiff's
claims are barred as a matter of law and equity.

FOURTH AFFIRMATIVE DEFENSE
(Doctrine of Laches)

AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiff unreasonably delayed in bringing this action,
without good cause, and has thereby prejudiced the rights of this answering defendant. The
Complaint and all claims alleged therein are therefore barred by the Doctrine of Laches.

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSFIFTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel)

AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that Plaintiff has waived any and all claims which they seek to assert
in this action, and/or estopped by their conduct from asserting or recovering on such claims.

SIXTH AFFIRMATIVE DEFENSE
(Compromise and Settlement)

AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that prior to the filing of this action; Plaintiff fully, completely
and unequivocally settled and compromised their claims for relief against this answering
defendant.

SEVENTH AFFIRMATIVE DEFENSE
(Action for Relief)

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, 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 states of the State of California, including without limitation Code of
Civil Procedure § 338(d).

EIGHTH AFFIRMATIVE DEFENSE
(Uncertainty)

AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiffs Complaint, now and as amended in the future, and
each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

NINTH AFFIRMATIVE DEFENSE
(Lack of Jurisdiction)

AS AND FOR AN NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,

this answering defendant alleges, with respect to some or all of Plaintiffs alleged claims and

causes of action, this Court lacks jurisdiction.

DEFENDANT TEMPORARY PLANT CLEANERS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSTENTH AFFIRMATIVE DEFENSE
(Forum Non Conveniens)

AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges, with respect to some or all of Plaintiffs alleged claims and
causes of action, in the interest of substantial justice, the action should be heard in a forum
outside this state.

ELEVENTH AFFIRMATIVE DEFENSE
(Improper Venue)

AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs Complaint has been filed in an
improper venue.

TWELFTH AFFIRMATIVE DEFENSE
(Choice of Law)

AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that some or all of Plaintiffs alleged claims, causes
of action and/or legal issues raised in the Complaint are governed by the substantive laws of a
state other than California.

THIRTEENTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Alternative Entity of Answering Defendant)

AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, to the extent the Complaint asserts an “alternative entity theory,” the Complaint fails
to state sufficient facts to constitute a cause of action against answering defendant.

FOURTEENTH AFFIRMATIVE DEFENSE
(Due Care and Diligence)

AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that it exercised due care and diligence in ali the matters
alleged in the Complaint, and no act or omission by answering defendant was the proximate cause

of any damage, injury or loss to Plaintiff.

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSFIFTEENTH AFFIRMATIVE DEFENSE
{Comparative Fault)

AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that the damages, if any, complained of by Plaintiff, was
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
answering defendant, and that said negligence, fault, breach of contract and/or strict liability
comparatively reduces the percentage of any negligence, fault, breach of contract and/or strict
liability for which answering defendant is legally responsible, which liability answering
defendant expressly denies.

SIXTEENTH AFFIRMATIVE DEFENSE
(Other Parties’ Liability and Negligence)

AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, 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 answering defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE
(ndependent, Intervening or Superseding Cause)

AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that if Plaintiff, suffered any injuries attributable to the
use of any product containing asbestos which was used, disturbed or sold by answering
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 answering defendant. Answering defendant’s actions, if any, were
superseded by the negligence and wrongful conduct of others.
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EIGHTEENTH AFFIRMATIVE DEFENSE
(Contributory Negligence)

AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times and places mentioned in the
Complaint, now and as amended in the future, Plaintiff, was negligent and careless and failed to
exercise that degree of care and caution for their own safety which a reasonable prudent person
would have used under the same or similar circumstances, in that, among other things, said
Plaintiff, so negligently and carelessly stationed, conducted and maintained themselves, failed to
utilize safety devices and other equipment or facilities supplied to them and/or existing as part of
their environment, and failed to observe open obvious conditions, so as to directly and
proximately cause and contribute to their injuries and damages, if any. Plaintiff is therefore
precluded from obtaining any recovery against this answering defendant. Alternatively, any
negligence or other legal fault attributable to Plaintiff thereby comparatively reduces the
percentage of negligence or fault, if any, attributable to this answering defendant, which this
answering defendant expressly denies.

NINETEENTH AFFIRMATIVE DEFENSE
(Apportionment and Offset)

AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that no act, omission, conduct or product attributable
to it caused or contributed to any injuries or damages sustained by Plaintiff, if any, and that if
such injuries and damages, if any, were not solely caused by Plaintiffs own acts, omissions and
{| other conduct, then said injuries and damages were proximately caused and contributed to by the
negligence and/or other tortious acts, omissions, conduct and products of persons or entities other
than this answering defendant, and that said negligence and/or other legal fault was an intervening
and superseding cause of Plaintiffs injuries and damages, if any. Any damages recoverable by
Plaintiff must therefore be diminished in proportion to the amount of fault attributable to these
other persons and entities, and there should be an apportionment of the harm and damage claimed

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TWENTIETH AFFIRMATIVE DEFENSE
{Assumption of Risk)

AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times and places referred to in the
Complaint, as amended, now or in the future, Plaintiff was, or in the exercise of reasonable care
should have been, aware of all circumstances and conditions then and there existing and
prevailing, but nonetheless knowingly, voluntarily, and in full appreciation of the potential
consequences thereof, exposed themselves to whatever risks and dangers may have been
attendant to such circumstances and conditions, thereby freely and voluntarily assuming any and
all risks incident thereto, and thereby barring Plaintiffs from recovery herein.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Assumption of Risk - Secondary)

AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that at all times and places referred to in the Complaint,
as amended, now or in the future, Plaintiff was made aware, or in the exercise of reasonable case
should have been made aware, of the hazards of asbestos, and of all circumstances and conditions
then and there prevailing, by the persons whom Plaintiffs claim brought asbestos into the
household from workplaces, but nonetheless knowingly, voluntarily and in full appreciation of
the potential consequences thereof, exposed themselves to whatever risks and dangers may have
been attendant to such circumstances and conditions, thereby freely and voluntarily assuming any
and all risks incident thereto, and thereby barring Plaintiffs from recovery herein.

TWENTY-SECOND AFFIRMATIVE DEFENSE
(Failure to Mitigate)

AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times and places relevant to this action,
Plaintiff failed to make reasonable efforts to mitigate their injuries, loss and/or damages, if any.
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DEFENDANT TEMPORARY PLANT CLEANERS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSms

TWENTY-THIRD AFFIRMATIVE DEFENSE
(Improper Use)
AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
| DEFENSE, this answering defendant alleges that at all times material to this action, Plaintiff,
| failed to use the products alleged in the Complaint in the foreseeable, proper and safe manner
| which would have otherwise been anticipated and expected of an ordinary user. Such misuse of
the products described in the Complaint by Plaintiff were the sole, proximate and legal cause of
Plaintiffs injuries and damages, if any, thereby barring Plaintiff from recovery herein.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Advised, Informed and Warned)

AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that 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, and storage of the products, substances, equipment and at premises in which exposure is
claimed, as well as to asbestos “in-place”, all as is described in the Complaint, and Plaintiff is
therefore barred from any relief prayed for therein.

TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Defect by Product Alteration and Modification)

AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times material to this action, the products
described in the Complaint which allegedly injured Plaintiff were, without this answering
defendant’s knowledge, approval or consent, and contrary to instructions and/or the custom and
practice in the industry, altered, redesigned, modified, or subjected to other treatment which
substantially changed their character, such that they were not being used, functioning and/or
performing in a manner intended by their manufacturer, and/or were not in substantially the same
or similar condition as when they left the manufacturer’s possession. If there was a defect in said

products covered by this answering defendant, which supposition is specifically denied by this

answering defendant, such defect resulted solely from such alteration, re-design, modification,

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS:w

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treatment or other change therein and not from any act or omission by this answering defendant,
thereby barring Plaintiff from recovery herein as against this answering defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Compliance with Specifications - Military)

AS AND FOR A TWENTY-SLXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that
any and all products allegedly supplied or distributed by this answering defendant were
manufactured and/or produced in conformity with specifications established and provided by the
United States Government pursuant to its War Powers as set forth in the United States
Constitution, and that any defect in said products was caused by deficiencies in said
specifications, and not by any action or conduct on the part of this answering defendant.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Compliance with Specifications - General)

AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that
any all products, products used, or products in place at the premises at issue herein were
manufactured, packaged, distributed, sold, installed and/or maintained in accordance with
contract specifications imposed by its co-defendants, the U.S. Government, the State of
California, Plaintiff's employers, the employers of the persons whom Plaintiff allege brought
workplace asbestos to the home and household of Plaintiff, or other third parties yet to be
identified, and that any defect in said products, or alleged acts or omissions in the installation
and/or maintenance of said products, was caused by deficiencies in said specifications, and not by
any action or conduct on the part of this answering defendant.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(State of the Art)

AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein in that

all products allegedly manufactured or distributed by this answering defendant were in

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS-

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conformity with the existing state of the medical, scientific, and industrial knowledge, art, and
practices, and as a result, said products were not defective in any manner.
TWENTY-NINTH AFFIRMATIVE DEFENSE
{Compliance with Statutes)

AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that all of its conduct and activities as alleged in the
Complaint conformed to statutes, government regulations, and industry standards based upon the
state of knowledge existing at all relevant times.

THIRTIETH AFFIRMATIVE DEFENSE
{No Control of Work)

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire Complaint, and each cause of action thereof, this answering defendant
alleges that it had no control over any work performed by others, including Plaintiff, their
employers and any entities other than this answering defendant, and, therefore, has no
responsibility for the claimed damages.

THIRTY-FIRST AFFIRMATIVE DEFENSE
(No Right to Control)

AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs injuries or illness, if any, were due to
the acts or omissions of a person or persons over whom this defendant had neither control nor the
right of control.

THIRTY-SECOND AFFIRMATIVE DEFENSE
(No Ownership or Control of Premises)

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire Complaint, and each cause of action thereof, this answering defendant
alleges that it did not own, occupy, possess, lease, maintain, manage or control any premises upon
which Plaintiff was allegedly exposed to asbestos and, as a result, Plaintiff is barred from

maintaining any cause of action against this answering defendant under a theory of premises

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS:liability.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Borrowed Servant Doctrine)

AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that at all times and locations mentioned in the
Complaint on file herein, it is informed and believes that the Borrowed Servant Doctrine applies
to preclude any claim of liability, damages and/or injury as against answering defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Assumption of Risk - Employer)

AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that the Complaint and each cause of action alleged
therein are barred on the grounds that Plaintiff, and his employers knowingly entered into and
engaged in 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 times and places
mentioned in the Complaint.

THIRTY-FIFTH AFFIRMATIVE DEFENSE
{Contractual Indemnity)

AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if Plaintiffs claim exposure to asbestos or
asbestos-containing products at any premises for which answering defendant is allegedly liable,
which is expressly denied herein, answering defendant contracted with Plaintiff and/or Plaintiffs
employers for them to fully assume all responsibility for insuring Plaintiff's 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 answering defendant,
and to hold answering defendant harmless, for responsibility and liability arising out of said work
and/or for any injuries allegedly incurred by Plaintiff as a result of said work. Answering
defendant reserves all rights to assert these provisions of contractual indemnity.

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS,THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Contribution/Equitable Indemnity)

AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that in the event it is held liable to Plaintiff, which
liability is expressly denied herein, and any other co-defendants are likewise held liable,
answering defendant 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.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Civil Code §1431.2)

AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that the provisions of California Civil Code §1431.2
(commonly referred to as “Proposition 51”) are applicable to Plaintiffs Complaint and to each
cause of action.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(No Concert of Action)

AS AND FOR A THIRTY-EIGHTTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges there is no concert of action between answering
defendant and any other named defendants. Defendants are not joint tortfeasors and, accordingly,
answering defendant may not be held jointly and severally liable with any other named
defendants.

THIRTY-NINTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Conspiracy of Defendants)

AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that to the extent the Complaint asserts any alleged
conspiracy on the part of answering defendants, the Complaint fails to state facts sufficient to
constitute a cause of action against answering defendant.

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DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS:FORTIETH AFFIRMATIVE DEFENSE
(Sophisticated Users —~ Failure to Warn)

AS AND FOR THE THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, answering defendant alleges that it was under no legal duty to warn Plaintiff of the
hazard associated with the use of products containing asbestos. The purchasers of said products,
Plaintiff, Plaintiff's employers, his/her labor unions or other third-parties yet to be identified,
were knowledgeable and sophisticated users and were in a better position to warn Plaintiff of the
tisk 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 Plaintiffs alleged damages herein. As such, answering defendant alleges that
the Complaint, as amended now or in the future, and any and all claims and causes of action
alleged therein, is/are barred by the “sophisticated user” doctrine pursuant to Johnson v. American
Standard (2008) 43 Cal.4" 56.

FORTY-FIRST AFFIRMATIVE DEFENSE
(Sophisticated User ~ Plaintiff)

AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in the
Complaint, as amended now or in the future, Plaintiff knew or should have known of the inherent
hazards, risks or potential dangers of the products alleged to be at issue, and was therefore a
sophisticated and knowledgeable user of each such product. As such, this answering defendant is
not liable to Plaintiffs for any alleged failure to warn of such hazards, risks or dangers.

FORTY-SECONDAFFIRMATIVE DEFENSE
(Sophisticated User — Employer Negligence)

AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times relevant to the matters alleged in the
Complaint, as amended now or in the future, Plaintiff and cach of his employers, other than this
answering defendant, were sophisticated and knowledgeable users of asbestos products and said

employers’ negligence in providing said products. to their employees in a negligent, careless and

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS,1 } reckless manner was a superseding cause of Plaintiffs’ injuries, if any.
2 FORTY-THIRD AFFIRMATIVE DEFENSE
3 (Work Hazard Precautions)
4 AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
5 || DEFENSE, answering defendant alleges that Plaintiff and each of his employer(s) were advised
6 || and wamed of any potential hazards and/or dangers associated with the normal and foreseeable
7 | contact with, or storage and disposal of, the products referred to in the Complaint, in a manner
8 | which was adequate notice to an industrial user of such products to enable it to inform its
9 | employees to take appropriate work precautions to prevent injurious exposure.
10 FORTY-FOURTH AFFIRMATIVE DEFENSE
11 (Consent)
12 AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
13 | DEFENSE, Answering defendant alleges that at all times mentioned, Plaintiff consented to the
14 | alleged acts or omissions of answering defendant.
15 FORTY-FIFTH AFFIRMATIVE DEFENSE
16 | (Insufficient Exposure)
17 AS AND FOR A FORTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
18 | DEFENSE, answering defendant alleges that any exposure of Plaintiff to answering defendant’s
19 | activities, or exposure to asbestos or asbestos-containing products, was so minimal as to be
20 |} insufficient to establish by a reasonable degree of probability that any such activity or product
21 | caused any alleged injury, damages, or loss to Plaintiff. :
22 FORTY-SIXTH AFFIRMATIVE DEFENSE
23 (Unusual Susceptibility)
24 AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
25 | DEFENSE, answering defendant alleges that Plaintiff's injuries and damages, if any, were
26 || proximately caused or contributed to by Plaintiff's unforeseeable idiosyncratic condition, unusual
27 | susceptibility, or hypersensitivity reactions for which answering defendant is not liable.
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DEFENDANT TEMPORARY PLANT CLEANERS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSbe

FORTY-SEVENTH AFFIRMATIVE DEFENSE
(Observable Defect — Reasonable Care)

AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire Complaint, and each cause of action thereof, this answering defendant
alleges that any danger or defect in or about the premises was obvious or could have been
observed by Plaintiff in this exercise of reasonable care.

FORTY-EIGHTH AFFIRMATIVE DEFENSE
(Trivial Defect)

AS AND FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE to the entire Complaint, and each cause of action thereof, this answering defendant
alleges that any defect of danger in or about the premises was trivial.

FORTY-NINTH AFFIRMATIVE DEFENSE
(No Successor, Predecessor or Alter Ego Liability)

AS AND FOR A FORTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant denies that it was 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 any entity owning property, maintaining
premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing,
contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for
others, packaging, and advertising any asbestos/silica products. This answering defendant is
therefore not liable for any acts, whether they are active or passive, or omissions of any entities to
which this answering defendant is or may be alleged to be a successor-in-interest, predecessor-in-
interest, alter ego, or the like.

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FIFTIETH AFFIRMATIVE DEFENSE
(Lack of Privity)

AS AND FOR A FIFTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times and places mentioned in the Complaint, as
amended, now or in the future, Plaintiff was not in privity of contract with this answering
defendant, and said lack of privity bars Plaintiffs recovery herein upon any theory of warranty.

FIFTY-FIRST AFFIRMATIVE DEFENSE
(Breach of Contract — Timely Notice)

AS AND FOR A FIFTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff failed to give this answering defendant
timely and reasonable notice of any alleged breach of contract or warranty, thereby barring
Plaintiff from recovery herein.

FIFTY-SECOND AFFIRMATIVE DEFENSE
(Breach of Warranty - Waiver)

AS AND FOR A FIFTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges at all times and places relevant to this action,
Plaintiff waived whatever right he might otherwise have had to claim a breach of warranty, in that
Plaintiff failed to notify this answering defendant of any alleged breach of warranty, express or
implied, and if any alleged defects existed in any products manufactured or distributed by this
answering defendant. Plaintiff discovered or should have discovered said defect or non-
conformity, if any existed, and failure to do so within a reasonable period of time prejudices this
answering defendant from being able to fully investigate and defend the allegations made against
it in the Complaint, now and as amended in the future.

FIFTY-THIRD AFFIRMATIVE DEFENSE
(Breach of Warranty - Disclaimer)

AS AND FOR A FIFTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiffs breach of warranty claims are barred

by written disclaimers and/or exclusions contained on or in the labels or packaging of the

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSproducts at issue in this action.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
(Punitive Damages -~ Failure to State Cause Of Action)

AS AND FOR A FIFTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now and as amended in the
future, and each and every cause of action contained therein, fails to state facts sufficient to
constitute “fraud,” “oppression,” or “malice,” as these terms are used in California Civil Code §
3294, and therefore fails to a cause of action for punitive damages.

FIFTY-FIFTH AFFIRMATIVE DEFENSE
(Punitive Damages —Good Faith)

AS AND FOR A FIFTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs claim for punitive damages is barred
because answering defendant at all times and places referenced or mentioned in the Complaint
acted reasonably and in good faith, and without malice or oppression towards the Plaintiff,

FIFTY-SIXTH AFFIRMATIVE DEFENSE
(Punitive Damages - Predecessor)

AS AND FOR A FIFTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the imposition of punitive/exemplary damages
against this corporate defendant for acts of a former and/or predecessor corporate entity would be
a violation of due process of law, and against public policy, under the various laws of the State of
California and the United States.

FIFTY SEVENTH AFFIRMATIVE DEFENSE
(Punitive Damages — gh Amendment)

AS AND FOR A FIFTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that California Civil Code § 3294 violates the Due
Process and/or Equal Protection clauses of the California and/or United States Constitutions, is
void because it is vague and ambiguous, constitutes and undue burden on interstate commerce,

and violates the Eighth Amendment to the United, States Constitution. Accordingly, Plaintiff is

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSw

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barred from any recovery thereunder.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
{Punitive Damages — Remitted)

AS AND FOR A FIFTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that 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.

FIFTY-NINTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act)

AS AND FOR A FIFTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the liability of this answering defendant, if any,
shall be apportioned in accordance with the provisions of California Civil Code §§ 1431, et seq.,
commonly known as the Fair Responsibility Act of 1986.

SIXTIETH AFFIRMATIVE DEFENSE
(Workers’ Compensation - Offset)

AS AND FOR A SIXTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges on information and belief that at all times and places relevant to
this action, Plaintiff was an employee of any employer or employers whose names are presently
unknown, and that any injuries or damages alleged in the Complaint, as amended now or in the
future, occurred while Plaintiffs were acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that Plaintiff's employers
provided Plaintiff, with certain benefits in compliance with the terms and provisions of the
Workers’ Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefits that may have been provided is unknown, but when said benefits are
determined, leave to amend this answer and to set forth the details of said benefits will be sought.
It is further alleged that any and all injuries or damages complained of by Plaintiff were solely
and proximately caused by, or resulted from, the negligence and carelessness of Plaintiff's,

employers, his co-workers and/or his employer's geents, servants or employees. Therefore, this

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSoO 0 we IN KH

answering defendant is entitled to an offset of any such benefits received or to be received by
Plaintiffs against any judgment which may be rendered in favor of said Plaintiff, pursuant to the
doctrine of Witt v. Jackson (1961) 57 Cal.2d 57.

SIXTY-FIRST AFFIRMATIVE DEFENSE

(Workers’ Compensation — Exclusive Remedy)

AS AND FOR A SIXTY-FIRST, SEPARATE AND DISINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from recovery herein if at any
time, past or present, Plaintiff was or is an employee of this answering defendant, including any
of this answering defendant’s divisions or subsidiaries, thereby creating conditions of
compensation. The right to recover Workers’ Compensation benefits is Plaintiffs sole and
exclusive remedy as against this answering defendant, pursuant to the provisions of California
Labor Cade §§ 3300, et seq., and/or §§ 3600, et seq. This answering defendant is entitled to a
judicial determination of any such employer-employee relationship establishing such exclusive
remedy and bar to recovery prior to any hearing or trial on the merits in this matter.

SIXTY-SECOND AFFIRMATIVE DEFENSE
(Not a Substantial Factor)

AS AND FOR A SIXTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that even if Plaintiff was exposed to any asbestos-
containing products manufactured or distributed by this answering defendant, which supposition
is expressly denied, Plaintiffs’ exposure to said products would have been so minimal as to be
insufficient to constitute a “substantial contributing factor” in the causation of Plaintiffs alleged
injuries or disease, if any.

SIXTY-THIRD AFFIRMATIVE DEFENSE
(Duty to Warn - Employer)

AS AND FOR A SIXTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly

distributed, soid, supplied or delivered to Plaintiff or each of his employers, because said

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSemployers had as great, if not greater, knowledge about the nature of any risks, dangers or
hazards than did this answering defendant, and unlike this answering defendant, said employers

were in a position to warn person exposed to such products any such risks, dangers or hazards.
SIXTY-FOURTH AFFIRMATIVE DEFENSE

(Strict Liability - Barred}
| AS AND FOR A SIXTY FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that to the extent the Complaint, or any cause of
action alleged therein, is based upon an allegation of strict products liability as against this
answering defendant, said cause of action cannot be maintained as this answering defendant was
not a “seller” within the meaning of § 402A of the Restatement (Second) of Torts, and
consequently any claim of strict liability against this answering defendant is barred pursuant to
Monte Vista Development Corporation vs. Superior Court (1991) 226 Cal App.3d 1681.
SIXTY-FIFTH AFFIRMATIVE DEFENSE
(Not Liable for Market-Share or Enterprise)

AS AND FOR A SIXTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, his answering defendant did not and does not have a substantial percentage of the
| market for any asbestos-containing products which allegedly caused the injuries and damages
claimed by Plaintiff. Furthermore, the asbestos-containing products which allegedly caused the
| injuries and damages claimed by Plaintiff are not “fungible” in nature. As such, this answering
defendant may not be held liable to Plaintiff based upon any “market-share” or “enterprise”
theories of liability.

SIXTY-SIXTH AFFIRMATIVE DEFENSE
(No Sindeli v. Abbot Labs Liability)

AS AND FOR A SIXTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the future,
and each purported cause of action set forth therein, to the extent it purports to state a cause of
action under Sindefl v. Abbot Laboratories, (1980) 26 C. rd 588, cert. denied, 449 U.S. 912

| (1980), is barred by the Plaintiffs failure to join 3s defendants the manufacturer of a substantial

| DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSom ND wm

share of the alleged market which Plaintiff allege Defendant herein is a member, and should it
prove impossible to identify the manufacturer of the product which comprises said alleged
market, said purported causes of action are barred by the fault of the Plaintiff and his agents in
making the identification of the manufacturer impossible.
SIXTY-SEVENTH AFFIRMATIVE DEFENSE
(Failure to State Sufficient Facts — Market-Share and Enterprise Liability)

AS AND FOR A SIXTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges 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.

SIXTY-EIGHTH AFFIRMATIVE DEFENSE
(Relevant Market Apportionment)

AS AND FOR A SIXTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that its liability, if any, to the extent Plaintiffs action
is pursued or found to be a market share action, is several only; that is, this answering defendant
would be liable only for that portion of Plaintiffs damages, if any be found, that corresponds to
the percentage of this answering defendant’s share of relevant market for the subject product.

SIXTY-NINTH AFFIRMATIVE DEFENSE
(Locomotive Boiler Act)

AS AND FOR A SIXTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the future,
and any and all claims and causes of action alleged therein, are preempted by the Locomotive
Boiler Inspection Act 49 U.S.CS. §§ 20701, et seq., the Federal Safety Appliances Act, 49
U.S.C. § 20301, et seq., and all other applicable federal statues, laws or regulations.

SEVENTIETH AFFIRMATIVE DEFENSE
(Contravention of Constitutional Rights to Due Process)

AS AND FOR A SEVENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendantalleges that the Complaint, now or as amended in the future,

DEFENDANT TEMPORARY PLANT CLEANERS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS:and each purported cause of action set forth therein, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would contravene this answering defendant’s constitutional rights to
substantive and procedural due process of law as preserved by the Fourteenth Amendment of the
Constitution of the United States and by Article I, Section 3 of the Constitution of the state of
California.
SEVENTY-FIRST AFFIRMATIVE DEFENSE

(Denial of Constitutional Rights to Equal Protection)

AS AND FOR A SEVENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendantalleges that the Complaint, now or as amended in the future,
and each purported cause of action set forth therein, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute a denial by this Court of this answering defendant’s
tight to equal protection of the law, as preserved by the Fourteenth Amendment of the
Constitution of the United States and by Article 1, Section 3 of the Constitution of the state of
California.

SEVENTY-SECOND AFFIRMATIVE DEFENSE
(Unconstitutional Taking of Private Property for Public Use Without Just Compensation)

AS AND FOR A SEVENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendantalleges that the Complaint, now or as amended in the future,
and each purported cause of action set forth therein, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute a taking of private property for public use without just
compensation, and that such taking would contravene this answering defendant’s constitutional

rights as preserved by the Fourteenth Amendment of the Constitution of the United States and by

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOS0 me ND WH BF WN

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Article I, Section 3 of the Constitution of the state of California.
SEVENTY-THIRD AFFIRMATIVE DEFENSE
(Violation of Commerce Clause of U.S. Constitution)

AS AND FOR A SEVENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ihis answering defendant alleges that the Complaint, now or as amended in the future,
and each purported cause of action set forth therein, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
relief which, if granted, would constitute an invalid burden. by the Court on interstate commerce
and a burden without resort to less burdensome alternatives, in violation of the Commerce Clause,
Article I, Section 8 of the Constitution of the United States.

SEVENTY FOURTH AFFIRMATIVE DEFENSE
(Failure to State Sufficient Facts ~ Lack of Identification of Manufacturers)

AS AND FOR A SEVENTY FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, now or as amended in the future,
and the purported cause of action alleging breach of express warranty, fraud, fraud by
concealment and/or claiming punitive damages, if based upon lack of identification of the
manufacturer of the alleged injury-causing product, fails to state facts sufficient to constitute a
cause of action against this answering defendant herein in that Plaintiff has asserted claims for
which may not be maintained in such an action pursuant to the laws of this State and the orders of
this Court.

SEVENTY-FIFTH AFFIRMATIVE DEFENSE
(Federal Preemption — Violation of Supremacy Clause)

AS AND FOR A SEVENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future,
and any and all claims and causes of action alleged therein, fails to state a cause of action against
this answering defendant because the federal government has preempted the field of law

applicable to the products alleged to have caused Plaintiffs injuries, or the claims forming the

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSbasis for relief. The granting of the relief prayed for in the Complaint would impede, impair,
frustrate and/or burden the effectiveness of federal law regulating the field and would violate the
Supremacy Clause contained in Article VA, Clause 2 of the United States Constitution.
SEVENTY-SIXTH AFFIRMATIVE DEFENSE
(Not Ultra Hazardous Under California Law)

AS AND FOR A SEVENTY-SLXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the activity alleged in the Complaint, as
amended now or in the future, and any and all claims and causes of action alleged therein, to the
extent it was engaged in by this answering defendant, if at all, was not ultra hazardous under
California Law.

SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
(No Causal Facts)

AS AND FOR A SEVENTY-SEVENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that Plaintiff cannot prove any
facts showing that the conduct of this answering defendant was the cause in fact of any injuries or
damages suffered by Plaintiff as alleged in the Complaint.

SEVENTY-EIGHTH AFFIRMATIVE DEFENSE
(No Proximate Cause)

AS AND FOR A SEVENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff cannot prove any facts showing that
the conduct of this answering defendant was the proximate cause of any injuries or damages
suffered by Plaintiff as alleged in the Complaint.

SEVENTY-NINTH AFFIRMATIVE DEFENSE
{Failure to Join Indispensable Parties)

AS AND FOR A SEVENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future,
and any and all claims and causes of action alleged therein, is/are barred by Plaintiffs failure to

timely join one or more parties that are indispensable and/or necessary to a resolution of the

DEFENDANT TEMPORARY PLANT CLEANERS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY- ASBESTOSmatter alleged in the Complaint, as required by California Code of Civil Procedure § 389.
EIGHTIETH AFFIRMATIVE DEFENSE
(Res Judicata and Collateral Estoppel)

AS AND FOR AN EIGHTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future,
and any and ali claims and causes of action alleged therein, is/are barred pursuant to the doctrines
of res judicata and/or collateral estoppel.

EIGHTY-FIRST AFFIRMATIVE DEFENSE
(Defect and Misjoinder of Parties)

AS AND FOR AN EIGHTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint, as amended now or in the future,
and any and ali claims and causes of action alleged therein, is/are barred because there