Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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                               MECCA
                                      San Francisco Superior Courts
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                              Document Scanning Lead Sheet
                                              Dec-09-2004 4:16 pm




                                     Case Number: CGC-01-402113

                                      Filing Date: Dec-09-2004 4:14

                                   Juke Box: 001        Image: 01096593
                                                  ANSWER



                     JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)




                                              001001096593




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      JOHN R. WALLACE, ESQ. csB¢ 85709
      CHRISTINEL. ROY, ESQ. csB# 97298 n
      JACKSON & WALLACE tp
      55 Francisco Street, 6th Floor
      San Francisco, CA 94133                          C4 fce-9           Mi AV
      (415) 982-6300                                  COAL           aK     pu eZ
      Attorne s For Defendant
      KAISE        ROIGYPSUM     COMPANY, INC.         BY,
                                                                              LEAK




                    IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                            IN AND FOR THE COUNTY OF SAN FRANCISCO
 10



       ft
 i                                                           No.   402113
            Al MES JORDAN, and SHERYL
 n
            YNN JORDAN,
                                                             ANSWER OF DEFENDANT KAISER
                   Plaintiffs,                               GYPSUM COMPANY, INC. TO
 3                                                           UNVERIFIED FIRST AMENDED
             v.                                              COMPLAINT FOR PERSONAL INJURY
4

5      ASBESTOS DEFENDANTS (BP),
       etal.,
16
                   Defendants.
7

18

19                 DEFENDANT KAISER GYPSUM COMPANY,                         INC.),   (hereinafter
       Defendant") answers the unverified First Amended Complaint herein on its own
2     behalf and on behalf of no other defendant or entity as follows:
2                  Pursuant.to California Code of Civil Procedure section 431.30(d), Defendant
3     denies generally each and every allegation of the Complaint.
4                                     FIRST AFFIRMATIVE DEFENS:
                   Neither the Complaint nor any purported cause of action alleged by the
6     plaintiffs therein states facts sufficient to constitute a cause of action against

2     Defendant,

38    Mt



                         DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY.

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                                     SECOND AFFIRMATIVE DEFENSE

                  To the extent the Complaint asserts Defendant's alleged "market share"
          liability, or “enterprise liability," the Complaint fails to state facts sufficient to
          constitute a cause of action against Defendant.
                                       THIRD AFFIRMATIVE DEFENSE

                   Neither the Complaint nor any purported cause of action alleged therein states
          facts sufficient to entitle plaintiffs to an award of punitive damages against Defendant.
                                     FOURTH AFFIRMATIVE DEFENSE

                   The imposition of any punitive damages in this matter would deprive
     10   Defendant of its property without due process of law under the California
     1    Constitution and United States Constitution.
     1                                 FIFTH AFFIRMATIVE DEFENSE

     13            The imposition of any punitive damages in this matter would violate the
     iM   United States Constitution's prohibition against laws impairing the obligation of
     IS   contracts.

     16                                SIXTH AFFIRMATIVE DEFENS:|

     nv         The imposition of any punitive damages in this matter would constitute a criminal
     1B   fine or penalty and should, therefore, be remitted on the ground that the award
     9    violates the United States Constitution.
     20                              SEVE!          FFIRMATIVE DEFENSE

     2             Plaintiff's action, and each alleged cause of action, is barred by the applicable
          statute of limitations, including but not limited to California Code of Civil Procedure,

     3    sections 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California
     a4   Commercial Code, section 2725.
                                      EIGHTH AFFIRMATIVE DEFENSE

     %             Plaintiffs unreasonably delayed in bringing this action, without good cause
          therefore, and thereby has prejudiced Defendant as a direct and proximate result of
     3    such delay; accordingly, this action is barred by laches and by section 583 et. seq. of

                                                              2

                         DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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           the Code of Civil Procedure.
                                         Mn        FFIRMATIVE DEFENSE
                    Plaintiffs were negligent in and about the matters alleged in the Complaint and
           in each alleged cause of action; this negligence proximately caused, in whole or in
           part, the damages alleged in the Complaint. In the event plaintiffs are entitled to any:
           damages, the amount of these damages should be reduced by the comparative fault of
           plaintiffs and any person whose negligent acts or omissions are imputed to plaintiffs.
                                        TENTH AFFIRMATIVE DEFENSE

                 ~ Plaintiffs knowingly, voluntarily and unreasonably undertook to encounter
      10   each of the risks and hazards, if any, referred to in the Complaint and each alleged
      It   cause of action, and this undertaking proximately caused and contributed to any loss,
      2    injury or damages incurred by plaintiffs.
      3                              ELEVENTH AFFIRMATIVE DEFENSE
      4             Any loss, injury or damage incurred by plaintiffs was proximately caused by
      1S   the negligent or willful acts or omissions of parties whom Defendant neither
      16   controlled nor had the right to control, and was not proximately caused by any acts,
      7    omissions or other conduct of Defendant.
      18                              TWELFTH AFFIRMATIVE DEFENSE
      19            The products referred to in the Complaint were misused, abused or altered by
      2    plaintiffs or by others; the misuse, abuse or alteration was not reasonably foreseeable
      a    to Defendant, and proximately caused any loss, injury or damages incurred by
      2    plaintiffs.
      23                            THIRTEENTH AFFIRMATIVE DEFENSE
      aw            Plaintiffs failed to exercise due diligence to mitigate their loss, injury or
           damages; accordingly, the amount of damages to which plaintiffs are entitled, if any,
      %    should be reduced by the amount of damages which would have otherwise been
      2    mitigated.
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                          DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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                           FOURTEENTH AFFIRMATIVE DEFENSE

            The Court lacks subject matter jurisdiction over the matters alleged in the
     Complaint because the Complaint and each alleged cause’of action against Defendant
     are barred by the provisions of California Labor Code, section 3600, et seq.
                             FI    El       FFIRMA TIVE DEFENSE
            Defendant alleges that at the time of the injuries alleged in the Complaint,
     plaintiffs were employed and was entitled to receive Workers’ Compensation benefits
     from his employer's workers' compensation insurance carrier; that all of plaintiff's
     employers, other than Defendant, were negligent in and about the matters referred to
10   in said Complaint, and that such negligence on the part of said employers proximately
W    and concurrently contributed to the happening of the accident and to the loss or
2    damage complained of by plaintiffs, if any there were; and that by reason thereof
13   Defendant is entitled to set off and/or reduce any such workers' compensation
M4   benefits received or to be received by plaintiffs against any judgment which may be
15   rendered in favor of plaintiffs. (Wittv. Jackson, 57 Cal.2d 57, 366 P.2d 641)
16                           SIXTEENTH AFFIRMATIVE DEFENSE
17          Defendant alleges that at the time of the injuries alleged in the Complaint,
18   plaintiff's employers were negligent in and about the matters referred to in said
19   Complaint, and that such negligence on the part of said employers proximately and
20   concurrently contributed to any loss or damage, including non-economic damages,
21   complained of by plaintiffs, if any there were; and that Defendant is not liable for said
2    employers’ proportionate share of non-economic damages.
3                          SEVENTEENTH AFFIRMATIVE DEFENSE
4           Defendant alleges that at the time of the injuries alleged in the Complaint,
35   parties other than this Defendant were negligent in and about the matters referred to
26   in said Complaint, and that such negligence on the part of said parties proximately
2    and concurrently contributed to any loss or damage, including non-economic
3B   damages, complained of by plaintiffs, if any there were; and that Defendant herein

                                                    4

                    DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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         shall not be liable for said parties’ proportionate share of non-economic damages.
                                  - EIGHTEENTH AFFIRMATIVE DEFENSE

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

         of plaintiff's injuries, if any.
                                   NINETEENTH AFFIRMATIVE DEFENSE

                 If plaintiffs have received, or in the future may receive, Worker's
    10   Compensation benefits from Defendant under the Labor Code of the State of
    iW   California as a consequence of the alleged industrial injury referred to in the
    2    Complaint, and in the event plaintiffs are awarded damages against Defendant,
    B    Defendant claims a credit against this award to the extent that Defendant is barred

    4    from enforcing his rights to reimbursement for Worker's Compensation benefits that
    15   plaintiffs have received or may in the future receive.
    16                              TWENTIETH AFFIRMATIVE DEFENSE
    17           If plaintiffs have received, or in the future may receive Worker's
    18   Compensation benefits from Defendant under the Labor Code of the State of
    19   California as a consequence of the alleged industrial injury referred to in the
         Complaint, Defendant demands repayment of any such Worker’s Compensation
    2    benefits in the event that plaintiffs recover tort damages as a result of the industrial
    2    injury allegedly involved here. Although Defendant denies the validity of plaintiff's
    2B   claims, in the event those claims are held valid and not barred by the statute of limita-
    uw   tions or otherwise, Defendant asserts that cross-demands for money have existed
    35   between plaintiffs and Defendant and the demands are compensated, so far as they
    %6   equal each other, pursuant to California Code of Civil Procedure section 431.70.
    2                              TWENTY-FIRST     AFFIRMATIVE DEFENSE

    38            Atall times and places in the Complaint, plaintiffs were not in privity of

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                           DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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                contract with Defendant and said lack of privity bars plaintiff's recovery herein upon
                any theory of warranty.
                                        TWENTY-SECOND AFFIRMATIVE DEFENSE

                          Plaintiffs were barred from recovery in that all products produced by
                Defendant were in conformity with the existing state-of-the-art, and as a result, these
                products were not defective in any manner.
                                        TWENTY-THIRD AFFIRMATIVE DEFENSE

                          The Defendant did not and does not have a substantial percentage of the
                market for the asbestos-containing products which allegedly caused plaintiff's
           10   injuries. Therefore, Defendant may not be held liable to plaintiffs based on this
           MW   Defendant's alleged percentage share of the applicable market.
           12                           TWENTY-FOURTH AFFIRMATIVE DEFENSE

           3              Defendants deny any and all liability to the extent that plaintiffs assert
           Kw   Defendant's alleged liability as a successor, successor in business, successor in product
           15   line or a portion thereof, assign, predecessor, predecessor in business, predecessor in
           16   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,
           18   studying, manufacturing, fabricating, designing, labeling, assembling, distributing,
           19   leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
           20   for installation, repairing, marketing, warranting, re-branding, manufacturing for
           a    others, packaging and advertising a certain substance, the generic name of which is
                asbestos.

           3                             TWE.      “FIFTH AFFIRMATIVE DEFENSE

           4              Defendant alleges that as a result of the acts, conduct, and omissions of

           35   plaintiffs and their agents, each cause of action presented in the Complaint has been

           %    waived,
           27                            TWENTY-SIXTH AFFIRMATIVE DEFENSE

           28             Defendant alleges that plaintiff's tobacco use is an assumption of a known risk,

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                                DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
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           and that said conduct of plaintiffs proximately caused and contributed to their injuries
           and damages, if any, and therefore the recovery of plaintiffs, if any, is barred or
           proportionately reduced.
                               TWENTY-SEVENTH AFFIRMATIVE DEFENSE
                  Defendant alleges that consumption of tobacco products is negligent perse
           because it is "inherently unsafe and consumed with the ordinary community
           knowledge of its danger," as expressed in Richards v. Owens-Illinois, Ine. (1997) 14
           Cal.4th 985, California Civil Code section 1714.45(a)(1). Thus, the said negligence of
           plaintiffs proximately caused and contributed to their injuries and damages, if any,
      0    and therefore, the recovery of plaintiffs, if any, is barred or proportionately reduced.
      MW                        TWENTY-EIGHTH AFFIRMATIVE DEFENSE
      2           Defendant alleges that, on information and belief, plaintiffs named defendant
      3    in this litigation without reasonable product identification and without a reasonable
      If   investigation; accordingly, defendant, pursuant to California Code of Civil Procedure
      15   section 128.5, requests reasonable expenses, including attorney's fees, incurred by this
      16   defendant asa result of the maintenance by plaintiffs of this bad faith action.
      7                         TWENTY:NINT. H AFFIRMATIVE DEFENSE
      18          Defendant alleges that plaintiff's injury, damage or loss, if any, were
      19   proximately caused by an unforeseeable, independent, intervening or superseding
      2    event beyond the control, and unrelated to any conduct of defendant. Defendant's
      21   actions, if any, were superseded by the negligence and wrongful conduct of others.
                                    THIRTIETH AFFIRMATIVE DEFENSE
                  Defendant alleges that plaintiffs have failed to join all indispensable and/or
      4    essential parties needed for just adjudication. Therefore, the action should be stayed
           pending joinder of essential and/or indispensable parties or, in the alternative, the
      %6   action should be dismissed.
                                  THIRTY-FIRST AFFIRMATIVE DEFENSE
      38        " Plaintiff's action, and each alleged cause of action, is barred by the terms and

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                        DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
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             provisions of California Code of Civil Procedure section 361.
                    WHEREFORE, Defendant prays:
                    (1) That plaintiffs take nothing by his Complaint;
                    (2) That Judgment be entered in favor of Defendant;
                    (3) For recovery of Defendant's costs of suit;
                    (4) For appropriate credits and set-offs arising out of any payment of Worker's
             Compensation benefits as alleged above; and
                    (8) For such other and further relief as the Court deems just and proper.
             DATED:     December     _¥ , 2004

        0                                         JACKSON & WALLACE up
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                                                  BY:      V       hpaAey     L.A
        1                                             ©Christine L. Roy
                                                  Attorneys For Defendant
        13                                        KAISER GYPSUM COMPANY,
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                          DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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                                PROOF OF SERVICE BY MAIL
                                (Code Civ. Proc., 1013, 2015.5
                                 Cal. Rules of Court, rule 2008(e))
                STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

              I, Nicholas L. Lawson, declare as follows:


                                     8
             Iam over 18 years of a e and not a party to the within action; my business
     address is 55 Francisco Street, an Francisco, California 94133; I am employed in San
     Francisco County, California.

             Lam readily familiar with my employer's practices for collection and
     processing of correspondence for mailing with the United States Postal Service.
           On December       , 2004, I served a cop of the following documents:
10

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     KAISER GYPSUM
     AMENDED
                              PANY, INC.’S AN WER TO         %
                     COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the
                                                                     ERIFIED FIRST
     interested parties in the above-referenced case by following ordinary business practices
12   and placing for collection and mailing at 55 Francisco Street, San Francisco on the
     date above, a true copy of the above-referenced document(s), enclosed in a sealed
13   envelope; in the ordina     course of business, the above documents would have been
     deposited for first-class delivery with the United States Postal Service the same day
1s   they were placed for deposit, with postage thereon fully prepaid.
13            The foregoing envelopes were addressed as follows:
16                                         Brayton * Purcell
                                         222 Rush Landing Roa
0                                          Novato   CA       94948
18           I declare under penalty of perjury under the laws of the State of California that
     the foregoing is true and correct and that this declaration was executed on December
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                    DEFENDANT'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

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