Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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                        Document Scanning Lead Sheet
                                         Apr-23-2002   8:36 am




                                Case Number: CGC-01-402113

                                 Filing Date: Apr-22-2002 8:32

                              Juke Box: 001        Image: 00404698

                                            ANSWER




                 JAMES JORDAN VS. ASBESTOS                   DEFENDANTS (BHC)




                                         001000404698




Instructions:
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      OHN R. WALLACE, ESQ.              (State Bar No. 85709)                     LED A             RTER
     RICHARD D. DUMONT,      }Q. Graze Bar No. 107967)                                              ayy
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      [ACKSON & WALLACE LLP                                                                                C
     55 FRANCISCO STREET, 6TH FLOOR
     SAN FRANCISCO, CA 94133                                                              22   Ph
     Telephone; (41 5) 982-6300
     Facsimile:      415) 982-6700
                                                                                               A           eS
     Attorneys for Defendant
     THE BUDD COMPANY
                                                                                                           Whe
                     JN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                           IN AND FOR THE COUNTY OF SAN FRANCISCO
                                    COURT OF UNLIMITED JURISDICTION

10

W     JAMES JORDAN,                                             No, 402113

12                     Plaintiff,                               ANSWER       OF        DEFENDANT THE
                                                                BO BD COMPANY            70) Pp LAINTIFP’S
13              v,                                                                               INT

4     ASBESTOS DEFENDANTS (BHC), et
      al.,
1$
                       Defendants.
16

7

18              DEFENDANT THE BUDD COMPANY (hereinafter ‘DEFENDANT”) answers the
19   unverified Complaint herein on its own behalf and on behalf of no other defendant or entity as
20   follows:
21              Pursuant to California Code of Civil Procedure section 431.30(d), DEFENDANT denies
22   generally each and every allegation of the Complaint.
23                                      EIRST AFFIRMATIVE DEFENSE

24              Neither the Complaint nor any purported cause of action alleged by plaintiff therein
25   states facts sufficient to constitute a cause of action against DEFENDANT.
26                                     SECOND AFFIRMATIVE DEFENSE

27               Yo the extent the Complaint asserts DEFENDANT’s alleged “market share” Liability,
28   or “enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action

                                                            1

                                ANSWER OF DEFENDANT THE BUDD COMPANY
—_

     against DEFENDANT.
                                   THIRD AFFIRMATIVE DEFENSE

            Neither the Complaint nor any purported cause of action alleged therein states faces
     sufficient to entitle plaintiff to an award of punitive damages against DEFENDANT.
                                  FOI        A                    FENSE

            The imposition of any punitive damages in this matter would deprive DEFENDANT
     ofits propetty without due process of law under the California Constitution and United States
     Constitution.
                                    FIFTH AFFIRMATIVE DEFENSE

10          The imposition of any punitive damages in this matter would violate the United States
i    Coanstitution’s prohibition against laws impairing the obligation of contracts.
1                                   SIXTH AFFIRMATIVE         DEFENSE

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

7           Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
18   limitations, inchiding but not limited to California Code of Civil Procedure, sections 338(1),
Ww   338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code, section 2725.
20                                 EIGHTH AFFIRMATIVE DEFENSE

2           Plaintiff unreasonably delayed in bringing this action, without good cause therefore, and
22   thereby has prejudiced DEFENDANT             as a direct and proximate      result of such delay;

23   accordingly, his action is barred by laches and by section 583 et seq. of the Code of Civil
24   Procedure,
25                                  NINTH AFFIRMATIVE DEFENSE

26          Plaintiff was negligent in and about the matters alleged in the Complaint and in each
27   alleged cause of action; this negligence proximately caused, in whole or in part, the damages
28   alleged in the Complaint. In the event plaintiff is entitled to any damages, the amount of these
                                                     2

                            ANSWER OF DEFENDANT THE BUDD COMPANY
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      damages should be reduced by the comparative fault of plaintiff and any persan whose negligent
      acts or omissions are imputed to plaintiff.
                                                    IRMA TIVE DEFENSE
               Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the
      tisks and hazards, if any, referred to in the Complaint and each alleged cause of action, and this
      undertaking proximately caused and contributed to any loss, injury or damages incurred by
      plaintiff.
                                    ELEVENTH AFFIRMATIVE DEFENSE
               Any loss, injury or damage incurred by plaintiff was proximately caused by the negligent
 10   or willful acts or omissions of parties whom DEFENDANT neither controlled nor bad the right
 1    to control, and was not proximately caused by any acts, omissions or other conduct of
12    DEFENDANT.
13                                  TWELFTH       AFFIRMATIVE DEFENSE
14             The products referred to in the Complaint were misused, abused or altered by plaintiff
WS    or by others; the misuse, abuse or alteration was not reasonably foreseeable to DEFENDANT,
16    and proximately caused any loss, injury or damages incurred by plaintiff.
7                                  THIRTEENTH AFFIRMATIVE             DEFENSE
18            DEFENDANT alleges that its products were manufactured, produced, supplied, sold and
19    distributed in mandatory conformity with specifications promulgated by the United States
20    Government under its war powers, as set forth in the United States Constitution, and that any
21    recovery by plaintiff on the Complaint on file herein is barred in consequence of the exercise
22    of those sovereign powers.
23                               FOURTEENTH AFFIRMATIVE DEFENSE
24            Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
25    accordingly, the amount of damages to which plaintiff are entitled, if any, should be reduced by
26    the amount of damages which would have otherwise been mitigated.
27                                  FIFTEENTH AFFIRMATIVE DEFENSE
28            The Court lacks subject matter jurisdiction over the matters alleged in the Complaint

                                                     3

                            ANSWEROF DEFENDANT THE BUDD COMPANY
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     because the Complaint and each alleged cause of action against DEFENDANT are barred by the
     provisions of California Labor Code, section 3600, et seq.
                                  &                       TIVE        DEFENSE
            DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiff
     was employed and was entitled to receive Workers’ Compensation benefits from his employer's
     workers’   compensation     insurance carrier; thar ail of plaintiff's employers,     other than

     DEFENDANT, were negligent in and about the matters referred to in said Complaint, and thar
     such negligence on the part of said employers proximately and concurrently contributed to the
     happening of the accident and to the loss or damage complained of by plaintiff, ifany there were;
10   and thar by reason thereof DEFENDANT is entitled to set off and/or reduce any such Workers’
ML   Compensation benefits received or to be received by plaintiff against any judgment which may
2    be rendered in favor of plaintiff. (Witt
                                          u Jackson, 57 Cal.2d 57, 366 P.2d 641)

13                              SEVENTEENTH AFFIRMATIVE DEFENSE
4           DEFENDANT alleges thatat che time of the injuries alleged in the Complaint, plaintiff's

15   employers were negligent in and about the matters referred to in said Complaint, and that such
16   negligence on the part of said employers proximately and concurrently contributed to any loss
1?   or damage, including non-economic damages, complained of by plaintiff, if any there were; and

18   that DEFENDANT is not liable for said employers’ proportionate share of non-economic
19   damages,
20                               EIGHTEENTH AFFIRMATIVE DEFENSE

at          DEFENDANT alleges that at the time of the injuries alleged in the Complaint, parties
22   other than this DEFENDANT were negligent in and about the matters referred to in said
23   Complaint, and that such negligence on the part of said parties proximately and concurrently
24   contributed to any loss or damage, including non-economic damages, complained af by plaintiff,
25   if any there were; and that DEFENDANT              herein shell not be liable for said parties’
26   proportionate share of non-economic damages.
27                               NINETEENTH AFFIRMATIVE DEFENSE

28          DEFENDANT alleges that at all times relative to matters alleged in the Complaint, all

                                                    4
                              ANSWER OF DEFENDANT THE BUDD COMPANY
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                            Ne                                         7


          of   plaintiffs   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 and damages, if any.
                                         TWENTIETH AFFIRMATIVE DEFENSE

                  If plaintiff has received, or in the future may receive, Worker’s Compensation benefits

          from DEFENDANT under the Labor Code of the State of California as a consequence of the
          alleged industrial injury referred to in the Complaint, and in the event plaintiff is awarded
          damages against DEPENDANT, DEFENDANT claims a credit against this award to the extent
     10   that DEFENDANT          is barred from enforcing his rights to reimbursement for Worker’s
     n    Compensation benefits that plaintiff has recived or may in the future receive.
     12                              TWENTY-FIRST AFFIRMATIVE DEFENSE

     13           If plaintiff has received, or in the future may receive Worker’s Compensation benefits
     14   from DEFENDANT under the Labor Code of the State of California as a consequence of the
     15   alleged industrial injury referred to in the Complaint, DEFENDANT demands repayment of
     16   any such Worker’s Compensation benefits in the event that plaintiff recovers tort damages as a
     (7   result of the industrial injury allegedly involved here. Although DEFENDANT denies the
     18   validity of plaintiff's claims, in the event those claims are beld valid and not barred by the stature
     19   of limitations or otherwise, DEFENDANT asserts that cross-demands for money have existed
     20   between plaintiff and DEFENDANT and the demands are compensated, so far as they equal
     21   each other, pursuant to California Code of Civil Procedure section 431.70,
     22                             TWENTY-SECOND         AFFIRMATIVE DEFENSE

     23           At all times and places in the Complaint, plaintiff was not in privity of contract with
     24   DEFENDANT and said lack of privity bars plaintiff's recovery herein upon any theory of
     25   warranty.
     26                              TWENTY-THIRD AFFIRMATIVE DEFENSE

     27            Plaintiff is barred from recovery in chat all products produced by DEFENDANT, ifany,
     28   were in conformity with the existing state-of-the-art, and as a result, these products were not

                                                            5

                                 ANSWER OF DEFENDANT THE BUDD COMPANY
defective in any manner.
                               TWENTY-FOURTH AFFIRMATIVE DEFENSE
            DEFENDANT did nat and does not have a substantial percentage of the market for the
     asbestos-cantaining products which allegedly caused plaintiff's injuries and damages. Therefore,
     DEFENDANT            may not be held liable to plaintiff based on this DEFENDANT’s alleged
     percentage share of the applicable market.
                                 TWENTY-FIFTH AFFIRMATIVE DEFENSE
             DEFENDANT           denies any and all ability to the extent that plaintiff osserts
     DEFENDANT’s alleged liability as a successor, successor in business, successor in product line
19   or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or
W    a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or
12   partial owner of or member in an entity researching, studying, manufacturing, fabricating,
13   designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
14   servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
15   manufacturing for others, packaging and advertising a certain substance, the generic name of
16   which is asbestos,
17                                         *.     oT ATEIR.

18           DEPENDANT alleges that plaintiff's claims are or may be barred in whole or in part by

19   res judicata, collateral estoppel, issue preclusion and/or release.
20                             TWENTY-SEVENTH          AFFIRMATIVE DEFENSE

21          DEFENDANT           alleges that it is immune from liability for any alleged failure to warn
22   plaintiff of material risks associated with DEFENDANT’s products because such risks were or
23   should have been obvious to a reasonably prudent product user in plaintiff's position, or were
     otherwise a matter of common knowledge to persons in the same or similar position to plaintiff.

25                              TWENTY:                FA                     NSE

26           ‘This court lacks subject matter jurisdiction over the causes of action alleged in the

27   Complaint.
28   Vif
                                                       6

                              ANSWER OF DEFENDANT THE BUDD COMPANY
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                                 TWENTY.NINTH AFFIRMATIVE DEFENSE
              Asa   result of plaintiff's unreasonable delay in bringing this action, without good cause
      therefore, in addition to his other unreasonable acts and omissions, plaintiff has waived each or

      some of the claims stated or purportedly stated in the Complaint.
                                    THIRTIETH AFFIRMATIVE DEFENSE
              The activity alleged in the Complaint, to the extent that it was engaged in by
      DEFENDANT, if ar all, was not ulerahazardous under California law.

                                  THIRTY-FIRST AFEIRMA TIVE DEFENSE
              California Civil Code sections 1431.1 through 1431.5, known as the Fair Responsibility
10    Act of 1986, is applicable at Least in part to the present action and to certain claims therein, and
i     based upon the principle of comparative fault, the liability, if any, of DEFENDANT, if liable
12    at all, shall be several only and shall not be joint, DEFENDANT, if liable at all, shall be liable
13    as to certain claims only for the amount of non-economic damages allocated to DEFENDANT
14    in direct propottion ta DEFENDANT’s percentage of fault, if any, and a separate and several
Is    judgment shall be rendered against DEFENDANT for non-economic damages, if any.
16                              THIRT?. SECOND AFFIR/AA TIVE DEFENSE
17           Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was the
18    cause in fact of any alleged injuries or damages suffered by plaintiff as alleged in the Complaint.
19                                THIRTY-THIRD       AFFIRMATIVE DEFENSE

20           Plaintiff cannot prove any facts showing that the conduct of DEFENDANT was the
a1    proximate cause of any alleged injuries or damages suffered by plaintiff as alleged in the
22.   Complaint.
23                                  URTY-PFOURTH            AFFIRMA
24           Tf plaintiff was injured as alleged in the Complaint, those injuries were proximately caused
25    by allergies, sensitivities and idiosyncrasies particular to plaintiff, not found in the general public
26    and unknown and unknowable to DEFENDANT.                    Such injuries, if any, were not reasonably
27    foreseeable to DEFENDANT.
28    “tt

                                                        7

                             ANSWER OF DEFENDANT THE BUDD COMPANY
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                                         THIRTY-FIFTH AFFIRMATIVE DEFENSE

                    Arall times relevant, DEFENDANT’s acts and omissions were in conformity with all
             government statutes and regulations and all industry standards based upon the state of knowledge
             existing at the time of the acts or omissions.
                                        THIRTY.SIXTH AFFIRMATIVE DEFENSE

                    Plaintiff has failed to join all parties necessary for full and just adjudication of the
             purported causes of action asserted in the Complaint.
                                       THIRTY      SEVENTH ALFIRMATIVE DEFENSE

                    DEFENDANT alleges thar plaintiff has directed, ordéred, approved and/or ratified

        10   DEFENDANT’s conduct and plaintiff is therefore estopped from asserting his claims alleged in
        I    the Complaint as a result of his own acts, conduct or omissions.
        12                              THIRTY-EIGHTH AFFIRMATIVE DEFENSE

        13          DEFENDANT alleges that plaintiff's claims are preempted by the Federal Employers
        14   Liability Act (45 U.S.C. §§ 51 et seq.) and/or the Locomotive Boiler Inspection Act (49 U.S.C.
        Is   §§ 20701 et seq.) and/or the Safety Appliances Act (49 U.S.C. §§20301 et, seq.), all as recodified
        16   by the Federal Rail Safety Act, requiring that an action against the rail employer under the
        17   F.E.L.A. is plaintiff's exclusive remedy.
        18                                                                   EFENSE

        19          DEFENDANT          refers to and incorporates herein. each and every affirmative defense
        20   pleaded by the other parties herein to the extent that such defenses are not inconsistent with the
        21   matters stated herein.
        22                                 FORTIETH AFFIRMATIVE DERENSE

        23          DEFENDANT alleges that it presently has insufficient knowledge or information on
        24   which to form a belief as to whether it may have additional, as yet unasserted defenses available,
        25   DEFENDANT reserves herein the right to assert additional defenses in the event discovery
        26   indicates that they would be appropriate.
        27          ‘WHEREFORE, DEFENDANT prays:
        28          (1) That plaintiff take nothing by his Complaint;

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                                      ANSWER OF DEFENDANT THE BUDD COMPANY
~~

                 (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 Workers’
     Compensation or other benefits as alleged above; and
                 (5) For such other and further relief az the Court deems just and proper.


     DATE: April (7, 2002                                JACKSON & WALLACE LLP



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                                                             THE BUDD COMPANY
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                                      ANSWER OF DEFENDANT THE BUDD COMPANY
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                James Jordan v. Asbestos Defendants (BHC), et al.                           S.FS.C, #402113


                                                PROOR OF SERVICE BY MAIL
                                                (Code Civ. Proc., §§ 1013, 2015.5)
                               STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

                           I, the undersigned, declare as follows:

                        Tam over 18 years of age and not a party to the within action; my business
                address is 55 Francisco Street, 6th Floor, San Francisco, California 94133; lam
                employed in San Francisco County, California.
                         Tam readily familiar with my employer's practices for collection and
                processing of correspondence for mailing with the United States Postal Service. On
          10    the date own below, I served a copy, with all exhibits, of the following document(s):
         iW     DEFENDANT THE BUDD COMPANY'S OBJECTION TO STIPULATION
                OF HEARING BY COMMISSIONER
         42
                DEFENDANT THE BUDD COMPANY’S DEMAND FOR TRIAL BY JURY
         13     AND ESTIMATE OF LENGTH OF TRIAL
         14     ANSWER OF DEFENDANT THE BUDD COMPANY TO PLAINTIFF'S
                UNVERIFIED COMPLAINT
         15
                on the interested parties in the above-referenced case by y following ordinary business
                practices and placing for collection and mailin at 55 Francisco Street, San Francisco
                                                                     f
         16
                on the date shown below, a true copy of the a ove-referenced document(s), enclosed
         17     in a sealed envelope; in the ordi         ‘course of business, the above document(s) would
                have been deposited for first-class livery with the United States Postal Service the
         18     same day they were placed for deposit, with postage thereon fully prepaid.
         19                The foregoing envelope(s) was/were addressed as follows:
         20                                            Bray   n & Purcell
                                                    222 Rush Landing Road
         2t                                            Novato, CA 94948
         22              T declare under penalty of perjury under the laws of the State of Californ nee
                th ie foregoing is true and correct and that this declaration was executed on April
         23     20

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         25

                                                                         Leslie Clough
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               ‘VARI ortaal\PO5-t0siL wp
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