Preview
John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]
BRYDON HUGO & PARKER
135 Main Street, 20th Floor ELECTRONICALLY
San Francisco, CA 94105
Telephone: (415) 808-0300
FILED
Superior Court of California,
Facsimile: (415) 808-0333 County of San Francisco
Email: gotstottebhplaw.com SEP 21 2010
5
Attorneys for Defendant
Clerk of the Court
BY: JUDITH NUNEZ
UNION CARBIDE CORPORATION Deputy Clerk
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
10 CHARLES HUSBAND, (ASBESTOS)
Case No. CGC-09-275098
11 Plaintiff(s),
vs. ANSWER OF UNION CARBIDE
12 CORPORATION TO COMPLAINT FOR
ASBESTOS DEFENDANTS (B*P), PERSONAL INJURY — ASBESTOS
13
Defendants.
14
15 COMES NOW Defendant UNION CARBIDE CORPORATION (“Union Carbide” or
16 “Defendant”) denying liability for itself and any alternate entities named in the complaint,
17 and answering plaintiff's Complaint for Personal Injury - Asbestos (hereinafter the
18 “Complaint”), on file herein, admits, denies, and alleges as follows:
19 GENERAL DENIAL
20 Under the provisions of Section 431.30(d), California Code of Civil Procedure, this
21 answering defendant denies each and every allegation of plaintiff's Complaint and the
22 whole thereof, and denies that plaintiff has been damaged in any sum or amount
23 whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind in
24 any amount whatsoever from Union Carbide.
25 RESERVATION OF RIGHT TO TRIAL BY JURY
26 Union Carbide reserves the right to a trial by jury.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
This answering defendant alleges that plaintiff’s Complaint and each of the causes of|
5 action for relief alleged therein, fails to state a cause of action against this answering}
defendant.
SECOND AFFIRMATIVE DEFENSE
Contravention of Defendant's Constitutional Rights to Due Process of Law
The Complaint and each cause of action thereof, which is admittedly based upon a
10 lack of identification of the manufacturer of, and contractor using or distributing the alleged|
11 injury-causing product, fails to state facts sufficient to constitute a cause of action in that}
12 plaintiff has asserted a claim for relief which, if granted, would contravene defendant's
13 constitutional rights to substantive and procedural due process of law as preserved for|
14 defendant by the Fourteenth Amendment of the United States Constitution and by Article L
15 Section 7, of the Constitution of the State of California.
16 THIRD AFFIRMATIVE DEFENSE
17 Denial of Defendant’s Constitutional Rights to Equal Protection of the Laws
18 The Complaint, and each cause of action thereof, fails to state facts sufficient to
19 constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
20 would constitute a denial by this Court of defendant’s constitutional right to equal
21 protection of the laws as preserved by the Fourteenth Amendment of the United States
22 Constitution and by Article I, Section 7, of the Constitution of the State of California.
23 FOURTH AFFIRMATIVE DEFENSE
24 Unconstitutional Taking of Private Property for Public Use Without Just Compensation
25 The Complaint, and each cause of action thereof, which is admittedly based upon a
26 lack of identification of the manufacturer, and contractor using or distributing the alleged
27 injury-causing product, fails to state facts sufficient to constitute a cause of action in that|
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
20 FLOOR ASBESTOS
San Francisco, CA 94105
plaintiff has asserted claims for relief which, if granted, would constitute the taking of
private property for public use without just compensation in contravention of the Fifth and
Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and|
19, of the Constitution of the State of California, and the applicable California statutes.
5 FIFTH AFFIRMATIVE DEFENSE
Comparative Fault
This answering defendant alleges that the damages, if any, complained of by
plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict}
liability of plaintiff or other defendants, firms, persons, corporations, unions, employers|
10 and entities other than Union Carbide, and that said negligence, fault, breach of contract]
11 and/or strict liability comparatively reduces the percentage of any negligence, fault, breach|
12 of contract or strict liability for which Union Carbide is legally responsible, if any be found,
13 which liability this defendant expressly denies. Further, this answering defendant alleges|
14 that plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents|
15 complained of herein, and said incidents and the injuries and damages, if any, sustained by|
16 plaintiff, were directly and proximately caused and contributed to by the carelessness and
17 negligence of said plaintiff.
18 SIXTH AFFIRMATIVE DEFENSE
19 Contributory Negligenc
20 This answering defendant alleges that plaintiff did not exercise ordinary care,
21 caution or prudence to avoid the incidents complained of herein, and said incidents and the|
22 injuries and damages, if any, sustained by plaintiff, were directly and proximately caused
23 and contributed to by the carelessness and negligence of said plaintiff.
24 SEVENTH AFFIRMATIVE DEFENSE
25 Uncertainty
26 This answering defendant alleges that plaintiff's Complaint and all purported causes
27 of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on|
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches
This answering defendant alleges that plaintiff unreasonably delayed in bringing this
5 action and that such delay substantially prejudiced defendant, and that this action is|
therefore barred by the Doctrine of Laches.
NINTH AFFIRMATIVE DEFENSE
Statute of Limitations
This answering defendant alleges that plaintiff's Complaint and the purported
10 causes of action therein are barred by all statutes of limitation, including, but not limited to,
11 the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and
12 340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff's claims are}
13 further barred by the statute of limitations of states other than California pursuant to
14 California Code of Civil Procedure § 361.
15 TENTH AFFIRMATIVE DEFENSE
16 Failure to Mitigate
17 This answering defendant alleges that plaintiff failed to mitigate damages which
18 plaintiff contends he suffered, and plaintiff is therefore barred from any recovery
19 whatsoever, or alternatively, any damages found must be reduced in proportion to such|
20 failure to mitigate.
21 ELEVENTH AFFIRMATIVE DEFENSE
22 Estoppel
23 This answering defendant alleges that as a result of the acts, conduct and/or
24 omissions of plaintiff and his agents, or any of them, and each cause of action presented|
25 therein, is barred under the Doctrine of Estoppel.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
TWELFTH AFFIRMATIVE DEFENSE
Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action|
5 alleged therein.
THIRTEENTH AFFIRMATIVE DEFENSE
Acquiescene
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or|
omissions, if any, of this answering defendant, thus barring plaintiff from any relief as|
10 prayed for herein.
11 FOURTEENTH AFFIRMATIVE DEFENSE
12 Notice of Dangers
13 Plaintiff was advised, informed, and warned of any potential hazards and/or
14 dangers, if there were any, associated with the normal or foreseeable use, handling, storage|
15 and in place asbestos of the products, substances, equipment and at premises in which|
16 exposure is claimed as is described in the Complaint and is therefore barred from any relief|
17 prayed for.
18 FIFTEENTH AFFIRMATIVE DEFENSE
19 Compliance with Statutes
20 This answering defendant alleges that all of its conduct and activities as alleged in
21 the plaintiff's Complaint conformed to statutes, government regulations, and industry
22 standards based upon the state of knowledge existing at all relevant times.
23 SIXTEENTH AFFIRMATIVE DEFENSE
24 Compliance with Specifications
25 This answering defendant alleges that the asbestos products or asbestos used or in
26 place at any premises, if any, for which Union Carbide had any legal responsibility, were|
27 manufactured, packaged, distributed or sold in accordance with contract specifications|
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
imposed by its co-defendants, by the U.S. Government, by the State of California, by|
plaintiff's employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE
No Conspiracy
5 This answering defendant alleges that Union Carbide has no liability for the acts,
omissions or otherwise of any other defendant or entity because Union Carbide did not|
become legally responsible for the acts of any such defendant, nor entity, by any|
communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor|
is, a conspirator nor co-conspirator with any other defendant or entity.
10 EIGHTEENTH AFFIRMATIVE DEFENSE
11 State-of-the-Art
12 This answering defendant alleges that all of its activities, products, materials and its
13 premises at issue here at all times were conducted, used, produced, marketed, and operated|
14 in conformity with the existing scientific, medical industrial hygiene and consumer
15 knowledge, art and practice and state-of-the-art.
16 NINETEENTH AFFIRMATIVE DEFENSE
17 No Foreseeable Risk to Plaintiff
18 The state of the medical, scientific, and industrial knowledge and practice was at all
19 material times such that defendant neither breached any alleged duty owed plaintiff, nor
20 knew, nor could have known, that its activities, aterials, products, activities or premises
21 presented a foreseeable risk of harm to plaintiff in the normal and expected course of such
22 activities and use of such materials and products.
23 TWENTIETH AFFIRMATIVE DEFENSE
24 No Right to Control
25 This answering defendant alleges that any loss, injury, or damage incurred by
26 Plaintiff was proximately and legally caused by the negligent or willful acts or omissions of
27 parties which Union Carbide neither controlled, nor had the right to control, and was not|
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
proximately caused by any acts, omissions, or other conduct of Union Carbide.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Action for Relief
This answering defendant alleges the causes of action, if any, attempted to be stated
5 and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure}
of the State of California and/or other statutes of the State of California, including without|
limitation C.C.P. § 338(d).
TWENTY-SECOND AFFIRMATIVE DEFENSE
Misuse and Improper Use of Products
10 This answering defendant alleges that if the plaintiff allegedly suffered injuries
11 attributable to the disturbance or use of any product for which Union Carbide had any legal
12 responsibility, which allegations are expressly herein denied, the injuries were solely caused
13 by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose and|
14 improper use and abuse which was made of said product by persons or entities other than|
15 Union Carbide.
16 TWENTY-THIRD AFFIRMATIVE DEFENSE
17 Due Care and Diligenc
18 This answering defendant alleges that Union Carbide exercised due care and
19 diligence in all of the matters alleged in the Complaint, and no act or omission by Union|
20 Carbide was the proximate cause of any damage, injury or loss to plaintiff.
21 TWENTY-FOURTH AFFIRMATIVE DEFENSE
22 Alteration and Misuse of Product
23 This answering defendant alleges that an insubstantial amount, if any at all, of the
24 products containing asbestos distributed, used, supplied by defendant or used or in place at|
25 any premises owned or controlled by defendant, were not disturbed or used in the presence}
26 of plaintiff and not supplied to the plaintiff, and if so, were substantially altered by others|
27 and/or used in a manner inconsistent with the labeled directions.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Equal or Greater Knowledge of Hazards
This answering defendant alleges that any and all products containing asbestos used,
distributed or supplied by defendant were distributed or supplied to, or for, persons or|
5 entities who had knowledge with respect to the hazards, if any, resulting from exposure to}
products containing asbestos, which knowledge is equal to or greater than the knowledge
of Union Carbide.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Other Parties’ Liability and Negligence
10 This answering defendant alleges that if there was any negligence or any other form
11 of liability on the part of any of the parties named herein, it was the sole and exclusive}
12 negligence and liability of the other persons or entities and not of Union Carbide.
13 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
14 Apportionment and Offset
15 This answering defendant is informed and believes and thereon alleges that
16 plaintiff's acts and omissions, including plaintiff’s agents, servants, and employees acting
17 within the course and scope of their employment, and others, contributed to the alleged
18 damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court|
19 apply the principles of apportionment and offset so as to permit the Court or jury to|
20 apportion liability according to fault and to grant defendant a corresponding offset against}
21 any damages awarded to plaintiff.
22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
23 Contribution/Equitable Indemnity
24 This answering defendant alleges, in the event it is held liable to Plaintiff, any such
25 liability is expressly herein denied, and any other co-defendants are likewise held liable,
26 Union Carbide is entitled to a percentage contribution of the total liability from said co-
27 defendants in accordance with the principles of equitable indemnity and comparative}
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
contribution.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Assumption of Risk by Plaintiff's Employer(s)
This answering defendant alleges that the Complaint and each cause of action
5 alleged therein are barred on the grounds that plaintiff's employer or employers knowingly
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and|
voluntarily and knowingly assumed all of the risks incident to said operations, acts and|
conduct at the time and place mentioned in the Complaint.
THIRTIETH AFFIRMATIVE DEFENSE
10 Assumption of Risk
11 This answering defendant alleges plaintiff assumed the risk of the matters referred to
12 in his Complaint and that plaintiff knew and appreciated the nature of the risk and that the|
13 plaintiff voluntarily accepted this risk.
14 THIRTY-FIRST AFFIRMATIVE DEFENSE
15 No Market Share
16 This answering defendant alleges that Union Carbide did not have an appreciable
17 share of the market for the asbestos-containing products which allegedly caused plaintiff’s|
18 injuries, which occurrence Union Carbide expressly denies. Accordingly, Union Carbide
19 may not be held liable to plaintiff based on its alleged share of the applicable product
20 arket.
21 THIRTY-SECOND AFFIRMATIVE DEFENSE
22 Plaintiff Fails to Join a Substantial Market Share
23 The Complaint, and each cause of action thereof, fails to state facts sufficient to
24 constitute a cause of action against this answering defendant, in that defendant has failed to|
25 join a substantial market share of the producers or products to which plaintiff was allegedly
26 exposed.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
THIRTY-THIRD AFFIRMATIVE DEFENSE
Insufficient Facts to Show Substantial Market Share of this Defendant
To the extent the Complaint asserts defendant's alleged “alternative, wou market
share,” “enterprise” liability, the Complaint fails to state facts sufficient to constitute al
5 cause of action against this defendant.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Independent, Intervening or Superseding Cause
This answering defendant alleges that if plaintiff suffered any injuries attributable to
the use of any product containing asbestos which was used, distributed or sold by
10 defendant, which allegations are expressly denied herein, the injuries were solely caused by|
11 an unforeseeable, independent intervening and/or superseding event beyond the control
12 and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded
13 by the negligence and wrongful conduct of others.
14 THIRTY-FIFTH AFFIRMATIVE DEFENSE
15 Not a Substantial Factor
16 This answering defendant alleges that the Complaint and each cause of action
17 therein presented are barred on the grounds that the products, conduct, materials or
18 premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial
19 factor in bringing about the injuries and damages complained of by plaintiff and did not
20 increase the risk that plaintiff would suffer the injuries and damages complained of.
21 THIRTY-SIXTH AFFIRMATIVE DEFENSE
22 Insufficient Exposur
23 Any exposure of plaintiff to defendant's activities, products or exposure to asbestos
24 or asbestos-containing products at Union Carbide’s premises was so minimal as to be|
25 insufficient to establish by a reasonable degree of probability that any such product caused|
26 any alleged injury, damage, or loss to plaintiff.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
No Successor Liability
This answering defendant alleges that Union Carbide has no liability for the acts,
omissions or otherwise of any other defendant or any other entity because Union Carbide
5 did not become legally responsible for the acts of any such defendant or entity given the|
facts and circumstances of the pertinent transactions and never was, nor is, a successor-in-|
interest, a successor-in-liability or an alternate entity for any other user, manufacturer,
supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing|
products.
10 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
11 Lack of Privity
12 This answering defendant alleges that plaintiff has failed to state a cause of action in
13 that the Complaint fails to allege that there was privity between defendant on the one hand,
14 and plaintiff on the other, and furthermore, such privity did not exist between defendant on|
15 the one hand, and plaintiff on the other.
16 THIRTY-NINTH AFFIRMATIVE DEFENSE
17 Secondary Assumption of Ris|
18 This answering defendant alleges that any and all products containing asbestos used,
19 distributed or supplied by defendant were used, distributed or supplied to, or for, persons|
20 or entities who had knowledge with respect to the hazards, if any, resulting from exposure}
21 to products containing asbestos, which is equal to or greater than, the knowledge of Union
22 Carbide, i.e. Union Carbide’s liability should be reduced in proportion to the knowledge of|
23 plaintiff.
24 FORTIETH AFFIRMATIVE DEFENSE
25 Civil Code Section 1431.2
26 This answering defendant alleges that the provisions of California Civil Code §
27 1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint
28
BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
and to each cause of action therein.
FORTY-FIRST AFFIRMATIVE DEFENSE
Workers’ Compensation Exclusive Remedy
This answering defendant alleges that the Complaint is barred by the exclusivity
5 provisions of the California Workers’ Compensation laws, including, but not limited to,
California Labor Code §§ 3600, et seq.
FORTY-SECOND AFFIRMATIVE DEFENSE
Offset for Workers’ Compensation Benefits
This answering defendant alleges that to the extent plaintiff herein recovered, or in
10 the future may recover, any monies in connection with any claim for workers’
11 compensation benefits, any amounts recovered in this action are subject to a claim by|
12 defendant for a credit or offset.
13 FORTY-THIRD AFFIRMATIVE DEFENSE
14 Express Contractual Indemnity
15 This answering defendant alleges that if plaintiff claims exposure to asbestos or
16 asbestos-containing products at a Union Carbide premises, Union Carbide contracted with|
17 plaintiff and/or plaintiff's employer(s) for them to fully assume all responsibility for
18 insuring plaintiff's safety, to guarantee that no hazardous condition existed, and/or to warn
19 and protect against any such conditions, during the performance of plaintiff's work, and,
20 further, to fully indemnify Union Carbide, and to hold Union Carbide harmless, for all
21 responsibility and liability arising out of said work, and/or any injuries allegedly incurred
22 by plaintiff as a result of any of said work. Union Carbide reserves all rights to assert these}
23 provisions of contractual indemnity.
24 FORTY-FOURTH AFFIRMATIVE DEFENSE
25 Consent
26 This answering defendant alleges that at all times mentioned, plaintiff consented to
27 the alleged acts or omissions of Union Carbide.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
FORTY-FIFTH AFFIRMATIVE DEFENSE
Unusual Susceptibility
This answering defendant alleges that each of plaintiff's injuries and damages, if any,
were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic
5 condition, unusual susceptibility, or hypersensitivity reactions for which Union Carbide is|
not liable.
FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith
This answering defendant alleges that plaintiff's claim for punitive damages is
10 barred because Union Carbide at all times and places mentioned in the Complaint acted|
11 reasonably and in good faith, and without malice or oppression towards the plaintiff.
12 FORTY-SEVENTH AFFIRMATIVE DEFENSE
13 Sophisticated Use.
14 This answering Defendant alleges that, as the California Supreme Court ruled in
15 Johnson v. American Standard (2008) 43 Cal.4* 56, UNION CARBIDE was under no legal
16 duty to warn plaintiff of the hazard associated with the use of products containing asbestos
17 or their existence at any premises owned, operated, controlled or otherwise by UNION
18 CARBIDE, as purchasers of said products, the plaintiff, plaintiffs employers, his unions,
19 and/or certain third parties yet to be identified, were knowledgeable and sophisticated
20 users and were in a better position to warn plaintiff of the risk associated with using
21 products containing asbestos and, assuming a warning was required, it was the failure of
22 such persons or entities to give such a warning that was the proximate and superseding
23 cause of plaintiff's damages, if any.
24 FORTY-EIGHTH AFFIRMATIVE DEFENSE
25 Work Hazard Precautions
26 This answering defendant alleges that plaintiff's employer(s) was/were advised and
27 warned of any potential hazards and/or dangers associated with the normal and|
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
foreseeable conduct with, or storage and disposal of the products referred to in the|
Complaint, in a manner which was adequate notice to an industrial user of such product to}
enable it to inform its employees to take appropriate work precautions to prevent injurious|
exposure,
5 FORTY-NINTH AFFIRMATIVE DEFENSE
Failure to Join Indispensable Parties
Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded
from any recovery whatsoever as prayed for herein.
10 FIFTIETH AFFIRMATIVE DEFENSE
11 No Standing Under California Civil Code §§ 1708-1710
12 Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of
13 warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and|
14 therefore the Complaint and each cause of action thereof fails to state facts sufficient to}
15 constitute a cause of action against this answering defendant.
16 FIFTY-FIRST AFFIRMATIVE DEFENSE
17 Plaintiffis not a Real Party in Interest
18 Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party in
19 interest and is thereby precluded from any recovery whatsoever as prayed for herein.
20 FIFTY-SECOND AFFIRMATIVE DEFENSE
21 Fraud and Conspiracy are Not Separate Forms of Damages
22 Fraud and conspiracy do not constitute a separate and distinct form of damages
23 from general damages, and, therefore, the prayer for fraud and conspiracy in addition to
24 general damages does not sufficiently support or constitute a separate claim for damages|
25 against this answering defendant, but is simply cumulative and included in general
26 damages.
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
FIFTY-THIRD AFFIRMATIVE DEFENSE
Failure to Allege with Particularity
This answering defendant alleges that plaintiff's Complaint fails to set out its claims
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
5 defendant reserves the right to add additional defenses as the factual basis for these claims|
becomes known.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Punitive Damage Prohibited
This answering defendant alleges that plaintiff's Complaint fails to state facts
10 sufficient to support an award of punitive or exemplary damages against Union Carbide.
11 The Complaint, to the extent that it seeks exemplary or punitive damages, violates Union|
12 Carbide’s right to procedural due process under the Fourteenth Amendment of the United
13 States Constitution, and the Constitution of the State of California, and fails to state a cause
14 of action upon which either punitive or exemplary damages can be awarded.
15 FIFTY-FIFTH AFFIRMATIVE DEFENSE
16 Punitive Damages Prohibited
17 This answering defendant alleges that the Complaint, to the extent that it seeks
18 punitive or exemplary damages, violates Union Carbide’s right to protection from excessive
19 fines as provided in the Eighth Amendment of the United States Constitution and Article I,
20 Section 17 of the Constitution of the State of California, and violates Union Carbide’s right}
21 to substantive due process as provided in the Fifth and Fourteenth Amendments of the
22 United States and California Constitutions, and thus fails to state a cause of action|
23 supporting an award of punitive or exemplary damages.
24 FIFTY-SIXTH AFFIRMATIVE DEFENSE
25 Punitive Damages Prohibited
26 The causes of action asserted herein by plaintiff fail to state facts sufficient to
27 constitute a cause of action in that plaintiff has asserted claims for punitive damages which,
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BRYDKIN
Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY —
135 MAIN STREET
10" KLOOR, ASBESTOS
San Francisco, CA 94105
if granted, would violate the prohibition against laws impairing the obligation of contracts|
set forth in Article I, Section 10, of the United States Constitution.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited
5 Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is
barred by the “double jeopardy” clause of the Fifth Amendment to the United States|
Constitution, as applied to the States through the Fourteenth Amendment.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
Negligent Hiring Claim Invalid
10 An employee of an independent contractor may not pursue a claim for negligent
11 hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.
12 4th 1235 (2001).
13 FIFTY-NINTH AFFIRMATIVE DEFENSE
14 Right to Amend
15 This defendant will assert any and all additional defenses that arise during the course
16 of this litigation and reserves the right to
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John R. Brydon [Bar No. 083365] George A. Otstott [Bar No. 184671] BRYDON HUGO & PARKER 135 Main Street, 20th Floor ELECTRONICALLY San Francisco, CA 94105 Telephone: (415) 808-0300 FILED Superior Court of California, Facsimile: (415) 808-0333 County of San Francisco Email: gotstottebhplaw.com SEP 21 2010 5 Attorneys for Defendant Clerk of the Court BY: JUDITH NUNEZ UNION CARBIDE CORPORATION Deputy Clerk SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION 10 CHARLES HUSBAND, (ASBESTOS) Case No. CGC-09-275098 11 Plaintiff(s), vs. ANSWER OF UNION CARBIDE 12 CORPORATION TO COMPLAINT FOR ASBESTOS DEFENDANTS (B*P), PERSONAL INJURY — ASBESTOS 13 Defendants. 14 15 COMES NOW Defendant UNION CARBIDE CORPORATION (“Union Carbide” or 16 “Defendant”) denying liability for itself and any alternate entities named in the complaint, 17 and answering plaintiff's Complaint for Personal Injury - Asbestos (hereinafter the 18 “Complaint”), on file herein, admits, denies, and alleges as follows: 19 GENERAL DENIAL 20 Under the provisions of Section 431.30(d), California Code of Civil Procedure, this 21 answering defendant denies each and every allegation of plaintiff's Complaint and the 22 whole thereof, and denies that plaintiff has been damaged in any sum or amount 23 whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind in 24 any amount whatsoever from Union Carbide. 25 RESERVATION OF RIGHT TO TRIAL BY JURY 26 Union Carbide reserves the right to a trial by jury. 27 28 1 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Failure to State a Cause of Action This answering defendant alleges that plaintiff’s Complaint and each of the causes of| 5 action for relief alleged therein, fails to state a cause of action against this answering} defendant. SECOND AFFIRMATIVE DEFENSE Contravention of Defendant's Constitutional Rights to Due Process of Law The Complaint and each cause of action thereof, which is admittedly based upon a 10 lack of identification of the manufacturer of, and contractor using or distributing the alleged| 11 injury-causing product, fails to state facts sufficient to constitute a cause of action in that} 12 plaintiff has asserted a claim for relief which, if granted, would contravene defendant's 13 constitutional rights to substantive and procedural due process of law as preserved for| 14 defendant by the Fourteenth Amendment of the United States Constitution and by Article L 15 Section 7, of the Constitution of the State of California. 16 THIRD AFFIRMATIVE DEFENSE 17 Denial of Defendant’s Constitutional Rights to Equal Protection of the Laws 18 The Complaint, and each cause of action thereof, fails to state facts sufficient to 19 constitute a cause of action in that plaintiff has asserted claims for relief which, if granted, 20 would constitute a denial by this Court of defendant’s constitutional right to equal 21 protection of the laws as preserved by the Fourteenth Amendment of the United States 22 Constitution and by Article I, Section 7, of the Constitution of the State of California. 23 FOURTH AFFIRMATIVE DEFENSE 24 Unconstitutional Taking of Private Property for Public Use Without Just Compensation 25 The Complaint, and each cause of action thereof, which is admittedly based upon a 26 lack of identification of the manufacturer, and contractor using or distributing the alleged 27 injury-causing product, fails to state facts sufficient to constitute a cause of action in that| 28 2 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 20 FLOOR ASBESTOS San Francisco, CA 94105 plaintiff has asserted claims for relief which, if granted, would constitute the taking of private property for public use without just compensation in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and| 19, of the Constitution of the State of California, and the applicable California statutes. 5 FIFTH AFFIRMATIVE DEFENSE Comparative Fault This answering defendant alleges that the damages, if any, complained of by plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict} liability of plaintiff or other defendants, firms, persons, corporations, unions, employers| 10 and entities other than Union Carbide, and that said negligence, fault, breach of contract] 11 and/or strict liability comparatively reduces the percentage of any negligence, fault, breach| 12 of contract or strict liability for which Union Carbide is legally responsible, if any be found, 13 which liability this defendant expressly denies. Further, this answering defendant alleges| 14 that plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents| 15 complained of herein, and said incidents and the injuries and damages, if any, sustained by| 16 plaintiff, were directly and proximately caused and contributed to by the carelessness and 17 negligence of said plaintiff. 18 SIXTH AFFIRMATIVE DEFENSE 19 Contributory Negligenc 20 This answering defendant alleges that plaintiff did not exercise ordinary care, 21 caution or prudence to avoid the incidents complained of herein, and said incidents and the| 22 injuries and damages, if any, sustained by plaintiff, were directly and proximately caused 23 and contributed to by the carelessness and negligence of said plaintiff. 24 SEVENTH AFFIRMATIVE DEFENSE 25 Uncertainty 26 This answering defendant alleges that plaintiff's Complaint and all purported causes 27 of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on| 28 3 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 any theory. EIGHTH AFFIRMATIVE DEFENSE Laches This answering defendant alleges that plaintiff unreasonably delayed in bringing this 5 action and that such delay substantially prejudiced defendant, and that this action is| therefore barred by the Doctrine of Laches. NINTH AFFIRMATIVE DEFENSE Statute of Limitations This answering defendant alleges that plaintiff's Complaint and the purported 10 causes of action therein are barred by all statutes of limitation, including, but not limited to, 11 the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and 12 340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff's claims are} 13 further barred by the statute of limitations of states other than California pursuant to 14 California Code of Civil Procedure § 361. 15 TENTH AFFIRMATIVE DEFENSE 16 Failure to Mitigate 17 This answering defendant alleges that plaintiff failed to mitigate damages which 18 plaintiff contends he suffered, and plaintiff is therefore barred from any recovery 19 whatsoever, or alternatively, any damages found must be reduced in proportion to such| 20 failure to mitigate. 21 ELEVENTH AFFIRMATIVE DEFENSE 22 Estoppel 23 This answering defendant alleges that as a result of the acts, conduct and/or 24 omissions of plaintiff and his agents, or any of them, and each cause of action presented| 25 therein, is barred under the Doctrine of Estoppel. 26 27 28 4 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 TWELFTH AFFIRMATIVE DEFENSE Waiver This answering defendant alleges that plaintiff, by his acts, conduct and omissions, has waived the claims alleged in his Complaint and in each purported cause of action| 5 alleged therein. THIRTEENTH AFFIRMATIVE DEFENSE Acquiescene Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or| omissions, if any, of this answering defendant, thus barring plaintiff from any relief as| 10 prayed for herein. 11 FOURTEENTH AFFIRMATIVE DEFENSE 12 Notice of Dangers 13 Plaintiff was advised, informed, and warned of any potential hazards and/or 14 dangers, if there were any, associated with the normal or foreseeable use, handling, storage| 15 and in place asbestos of the products, substances, equipment and at premises in which| 16 exposure is claimed as is described in the Complaint and is therefore barred from any relief| 17 prayed for. 18 FIFTEENTH AFFIRMATIVE DEFENSE 19 Compliance with Statutes 20 This answering defendant alleges that all of its conduct and activities as alleged in 21 the plaintiff's Complaint conformed to statutes, government regulations, and industry 22 standards based upon the state of knowledge existing at all relevant times. 23 SIXTEENTH AFFIRMATIVE DEFENSE 24 Compliance with Specifications 25 This answering defendant alleges that the asbestos products or asbestos used or in 26 place at any premises, if any, for which Union Carbide had any legal responsibility, were| 27 manufactured, packaged, distributed or sold in accordance with contract specifications| 28 5 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 imposed by its co-defendants, by the U.S. Government, by the State of California, by| plaintiff's employers, or by third parties yet to be identified. SEVENTEENTH AFFIRMATIVE DEFENSE No Conspiracy 5 This answering defendant alleges that Union Carbide has no liability for the acts, omissions or otherwise of any other defendant or entity because Union Carbide did not| become legally responsible for the acts of any such defendant, nor entity, by any| communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor| is, a conspirator nor co-conspirator with any other defendant or entity. 10 EIGHTEENTH AFFIRMATIVE DEFENSE 11 State-of-the-Art 12 This answering defendant alleges that all of its activities, products, materials and its 13 premises at issue here at all times were conducted, used, produced, marketed, and operated| 14 in conformity with the existing scientific, medical industrial hygiene and consumer 15 knowledge, art and practice and state-of-the-art. 16 NINETEENTH AFFIRMATIVE DEFENSE 17 No Foreseeable Risk to Plaintiff 18 The state of the medical, scientific, and industrial knowledge and practice was at all 19 material times such that defendant neither breached any alleged duty owed plaintiff, nor 20 knew, nor could have known, that its activities, aterials, products, activities or premises 21 presented a foreseeable risk of harm to plaintiff in the normal and expected course of such 22 activities and use of such materials and products. 23 TWENTIETH AFFIRMATIVE DEFENSE 24 No Right to Control 25 This answering defendant alleges that any loss, injury, or damage incurred by 26 Plaintiff was proximately and legally caused by the negligent or willful acts or omissions of 27 parties which Union Carbide neither controlled, nor had the right to control, and was not| 28 6 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 proximately caused by any acts, omissions, or other conduct of Union Carbide. TWENTY-FIRST AFFIRMATIVE DEFENSE Action for Relief This answering defendant alleges the causes of action, if any, attempted to be stated 5 and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure} of the State of California and/or other statutes of the State of California, including without| limitation C.C.P. § 338(d). TWENTY-SECOND AFFIRMATIVE DEFENSE Misuse and Improper Use of Products 10 This answering defendant alleges that if the plaintiff allegedly suffered injuries 11 attributable to the disturbance or use of any product for which Union Carbide had any legal 12 responsibility, which allegations are expressly herein denied, the injuries were solely caused 13 by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose and| 14 improper use and abuse which was made of said product by persons or entities other than| 15 Union Carbide. 16 TWENTY-THIRD AFFIRMATIVE DEFENSE 17 Due Care and Diligenc 18 This answering defendant alleges that Union Carbide exercised due care and 19 diligence in all of the matters alleged in the Complaint, and no act or omission by Union| 20 Carbide was the proximate cause of any damage, injury or loss to plaintiff. 21 TWENTY-FOURTH AFFIRMATIVE DEFENSE 22 Alteration and Misuse of Product 23 This answering defendant alleges that an insubstantial amount, if any at all, of the 24 products containing asbestos distributed, used, supplied by defendant or used or in place at| 25 any premises owned or controlled by defendant, were not disturbed or used in the presence} 26 of plaintiff and not supplied to the plaintiff, and if so, were substantially altered by others| 27 and/or used in a manner inconsistent with the labeled directions. 28 7 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 TWENTY-FIFTH AFFIRMATIVE DEFENSE Equal or Greater Knowledge of Hazards This answering defendant alleges that any and all products containing asbestos used, distributed or supplied by defendant were distributed or supplied to, or for, persons or| 5 entities who had knowledge with respect to the hazards, if any, resulting from exposure to} products containing asbestos, which knowledge is equal to or greater than the knowledge of Union Carbide. TWENTY-SIXTH AFFIRMATIVE DEFENSE Other Parties’ Liability and Negligence 10 This answering defendant alleges that if there was any negligence or any other form 11 of liability on the part of any of the parties named herein, it was the sole and exclusive} 12 negligence and liability of the other persons or entities and not of Union Carbide. 13 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 14 Apportionment and Offset 15 This answering defendant is informed and believes and thereon alleges that 16 plaintiff's acts and omissions, including plaintiff’s agents, servants, and employees acting 17 within the course and scope of their employment, and others, contributed to the alleged 18 damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court| 19 apply the principles of apportionment and offset so as to permit the Court or jury to| 20 apportion liability according to fault and to grant defendant a corresponding offset against} 21 any damages awarded to plaintiff. 22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 23 Contribution/Equitable Indemnity 24 This answering defendant alleges, in the event it is held liable to Plaintiff, any such 25 liability is expressly herein denied, and any other co-defendants are likewise held liable, 26 Union Carbide is entitled to a percentage contribution of the total liability from said co- 27 defendants in accordance with the principles of equitable indemnity and comparative} 28 8 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 contribution. TWENTY-NINTH AFFIRMATIVE DEFENSE Assumption of Risk by Plaintiff's Employer(s) This answering defendant alleges that the Complaint and each cause of action 5 alleged therein are barred on the grounds that plaintiff's employer or employers knowingly entered into and engaged in the operations, acts and conduct alleged in the Complaint, and| voluntarily and knowingly assumed all of the risks incident to said operations, acts and| conduct at the time and place mentioned in the Complaint. THIRTIETH AFFIRMATIVE DEFENSE 10 Assumption of Risk 11 This answering defendant alleges plaintiff assumed the risk of the matters referred to 12 in his Complaint and that plaintiff knew and appreciated the nature of the risk and that the| 13 plaintiff voluntarily accepted this risk. 14 THIRTY-FIRST AFFIRMATIVE DEFENSE 15 No Market Share 16 This answering defendant alleges that Union Carbide did not have an appreciable 17 share of the market for the asbestos-containing products which allegedly caused plaintiff’s| 18 injuries, which occurrence Union Carbide expressly denies. Accordingly, Union Carbide 19 may not be held liable to plaintiff based on its alleged share of the applicable product 20 arket. 21 THIRTY-SECOND AFFIRMATIVE DEFENSE 22 Plaintiff Fails to Join a Substantial Market Share 23 The Complaint, and each cause of action thereof, fails to state facts sufficient to 24 constitute a cause of action against this answering defendant, in that defendant has failed to| 25 join a substantial market share of the producers or products to which plaintiff was allegedly 26 exposed. 27 28 9 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 THIRTY-THIRD AFFIRMATIVE DEFENSE Insufficient Facts to Show Substantial Market Share of this Defendant To the extent the Complaint asserts defendant's alleged “alternative, wou market share,” “enterprise” liability, the Complaint fails to state facts sufficient to constitute al 5 cause of action against this defendant. THIRTY-FOURTH AFFIRMATIVE DEFENSE Independent, Intervening or Superseding Cause This answering defendant alleges that if plaintiff suffered any injuries attributable to the use of any product containing asbestos which was used, distributed or sold by 10 defendant, which allegations are expressly denied herein, the injuries were solely caused by| 11 an unforeseeable, independent intervening and/or superseding event beyond the control 12 and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded 13 by the negligence and wrongful conduct of others. 14 THIRTY-FIFTH AFFIRMATIVE DEFENSE 15 Not a Substantial Factor 16 This answering defendant alleges that the Complaint and each cause of action 17 therein presented are barred on the grounds that the products, conduct, materials or 18 premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial 19 factor in bringing about the injuries and damages complained of by plaintiff and did not 20 increase the risk that plaintiff would suffer the injuries and damages complained of. 21 THIRTY-SIXTH AFFIRMATIVE DEFENSE 22 Insufficient Exposur 23 Any exposure of plaintiff to defendant's activities, products or exposure to asbestos 24 or asbestos-containing products at Union Carbide’s premises was so minimal as to be| 25 insufficient to establish by a reasonable degree of probability that any such product caused| 26 any alleged injury, damage, or loss to plaintiff. 27 28 10 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 THIRTY-SEVENTH AFFIRMATIVE DEFENSE No Successor Liability This answering defendant alleges that Union Carbide has no liability for the acts, omissions or otherwise of any other defendant or any other entity because Union Carbide 5 did not become legally responsible for the acts of any such defendant or entity given the| facts and circumstances of the pertinent transactions and never was, nor is, a successor-in-| interest, a successor-in-liability or an alternate entity for any other user, manufacturer, supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing| products. 10 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 11 Lack of Privity 12 This answering defendant alleges that plaintiff has failed to state a cause of action in 13 that the Complaint fails to allege that there was privity between defendant on the one hand, 14 and plaintiff on the other, and furthermore, such privity did not exist between defendant on| 15 the one hand, and plaintiff on the other. 16 THIRTY-NINTH AFFIRMATIVE DEFENSE 17 Secondary Assumption of Ris| 18 This answering defendant alleges that any and all products containing asbestos used, 19 distributed or supplied by defendant were used, distributed or supplied to, or for, persons| 20 or entities who had knowledge with respect to the hazards, if any, resulting from exposure} 21 to products containing asbestos, which is equal to or greater than, the knowledge of Union 22 Carbide, i.e. Union Carbide’s liability should be reduced in proportion to the knowledge of| 23 plaintiff. 24 FORTIETH AFFIRMATIVE DEFENSE 25 Civil Code Section 1431.2 26 This answering defendant alleges that the provisions of California Civil Code § 27 1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint 28 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 and to each cause of action therein. FORTY-FIRST AFFIRMATIVE DEFENSE Workers’ Compensation Exclusive Remedy This answering defendant alleges that the Complaint is barred by the exclusivity 5 provisions of the California Workers’ Compensation laws, including, but not limited to, California Labor Code §§ 3600, et seq. FORTY-SECOND AFFIRMATIVE DEFENSE Offset for Workers’ Compensation Benefits This answering defendant alleges that to the extent plaintiff herein recovered, or in 10 the future may recover, any monies in connection with any claim for workers’ 11 compensation benefits, any amounts recovered in this action are subject to a claim by| 12 defendant for a credit or offset. 13 FORTY-THIRD AFFIRMATIVE DEFENSE 14 Express Contractual Indemnity 15 This answering defendant alleges that if plaintiff claims exposure to asbestos or 16 asbestos-containing products at a Union Carbide premises, Union Carbide contracted with| 17 plaintiff and/or plaintiff's employer(s) for them to fully assume all responsibility for 18 insuring plaintiff's safety, to guarantee that no hazardous condition existed, and/or to warn 19 and protect against any such conditions, during the performance of plaintiff's work, and, 20 further, to fully indemnify Union Carbide, and to hold Union Carbide harmless, for all 21 responsibility and liability arising out of said work, and/or any injuries allegedly incurred 22 by plaintiff as a result of any of said work. Union Carbide reserves all rights to assert these} 23 provisions of contractual indemnity. 24 FORTY-FOURTH AFFIRMATIVE DEFENSE 25 Consent 26 This answering defendant alleges that at all times mentioned, plaintiff consented to 27 the alleged acts or omissions of Union Carbide. 28 12 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 FORTY-FIFTH AFFIRMATIVE DEFENSE Unusual Susceptibility This answering defendant alleges that each of plaintiff's injuries and damages, if any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic 5 condition, unusual susceptibility, or hypersensitivity reactions for which Union Carbide is| not liable. FORTY-SIXTH AFFIRMATIVE DEFENSE Good Faith This answering defendant alleges that plaintiff's claim for punitive damages is 10 barred because Union Carbide at all times and places mentioned in the Complaint acted| 11 reasonably and in good faith, and without malice or oppression towards the plaintiff. 12 FORTY-SEVENTH AFFIRMATIVE DEFENSE 13 Sophisticated Use. 14 This answering Defendant alleges that, as the California Supreme Court ruled in 15 Johnson v. American Standard (2008) 43 Cal.4* 56, UNION CARBIDE was under no legal 16 duty to warn plaintiff of the hazard associated with the use of products containing asbestos 17 or their existence at any premises owned, operated, controlled or otherwise by UNION 18 CARBIDE, as purchasers of said products, the plaintiff, plaintiffs employers, his unions, 19 and/or certain third parties yet to be identified, were knowledgeable and sophisticated 20 users and were in a better position to warn plaintiff of the risk associated with using 21 products containing asbestos and, assuming a warning was required, it was the failure of 22 such persons or entities to give such a warning that was the proximate and superseding 23 cause of plaintiff's damages, if any. 24 FORTY-EIGHTH AFFIRMATIVE DEFENSE 25 Work Hazard Precautions 26 This answering defendant alleges that plaintiff's employer(s) was/were advised and 27 warned of any potential hazards and/or dangers associated with the normal and| 28 13 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 foreseeable conduct with, or storage and disposal of the products referred to in the| Complaint, in a manner which was adequate notice to an industrial user of such product to} enable it to inform its employees to take appropriate work precautions to prevent injurious| exposure, 5 FORTY-NINTH AFFIRMATIVE DEFENSE Failure to Join Indispensable Parties Plaintiff herein has failed to join indispensable parties (California Code of Civil Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded from any recovery whatsoever as prayed for herein. 10 FIFTIETH AFFIRMATIVE DEFENSE 11 No Standing Under California Civil Code §§ 1708-1710 12 Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of 13 warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and| 14 therefore the Complaint and each cause of action thereof fails to state facts sufficient to} 15 constitute a cause of action against this answering defendant. 16 FIFTY-FIRST AFFIRMATIVE DEFENSE 17 Plaintiffis not a Real Party in Interest 18 Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party in 19 interest and is thereby precluded from any recovery whatsoever as prayed for herein. 20 FIFTY-SECOND AFFIRMATIVE DEFENSE 21 Fraud and Conspiracy are Not Separate Forms of Damages 22 Fraud and conspiracy do not constitute a separate and distinct form of damages 23 from general damages, and, therefore, the prayer for fraud and conspiracy in addition to 24 general damages does not sufficiently support or constitute a separate claim for damages| 25 against this answering defendant, but is simply cumulative and included in general 26 damages. 27 28 14 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 FIFTY-THIRD AFFIRMATIVE DEFENSE Failure to Allege with Particularity This answering defendant alleges that plaintiff's Complaint fails to set out its claims with sufficient particularity to permit defendant to raise all appropriate defenses and, thus, 5 defendant reserves the right to add additional defenses as the factual basis for these claims| becomes known. FIFTY-FOURTH AFFIRMATIVE DEFENSE Punitive Damage Prohibited This answering defendant alleges that plaintiff's Complaint fails to state facts 10 sufficient to support an award of punitive or exemplary damages against Union Carbide. 11 The Complaint, to the extent that it seeks exemplary or punitive damages, violates Union| 12 Carbide’s right to procedural due process under the Fourteenth Amendment of the United 13 States Constitution, and the Constitution of the State of California, and fails to state a cause 14 of action upon which either punitive or exemplary damages can be awarded. 15 FIFTY-FIFTH AFFIRMATIVE DEFENSE 16 Punitive Damages Prohibited 17 This answering defendant alleges that the Complaint, to the extent that it seeks 18 punitive or exemplary damages, violates Union Carbide’s right to protection from excessive 19 fines as provided in the Eighth Amendment of the United States Constitution and Article I, 20 Section 17 of the Constitution of the State of California, and violates Union Carbide’s right} 21 to substantive due process as provided in the Fifth and Fourteenth Amendments of the 22 United States and California Constitutions, and thus fails to state a cause of action| 23 supporting an award of punitive or exemplary damages. 24 FIFTY-SIXTH AFFIRMATIVE DEFENSE 25 Punitive Damages Prohibited 26 The causes of action asserted herein by plaintiff fail to state facts sufficient to 27 constitute a cause of action in that plaintiff has asserted claims for punitive damages which, 28 15 BRYDKIN Huo & PARKER ANSWER OF UNION CARBIDE CORPORATION TO COMPLAINT FOR PERSONAL INJURY — 135 MAIN STREET 10" KLOOR, ASBESTOS San Francisco, CA 94105 if granted, would violate the prohibition against laws impairing the obligation of contracts| set forth in Article I, Section 10, of the United States Constitution. FIFTY-SEVENTH AFFIRMATIVE DEFENSE Punitive Damages Prohibited 5 Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff is barred by the “double jeopardy” clause of the Fifth Amendment to the United States| Constitution, as applied to the States through the Fourteenth Amendment. FIFTY-EIGHTH AFFIRMATIVE DEFENSE Negligent Hiring Claim Invalid 10 An employee of an independent contractor may not pursue a claim for negligent 11 hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal. 12 4th 1235 (2001). 13 FIFTY-NINTH AFFIRMATIVE DEFENSE 14 Right to Amend 15 This defendant will assert any and all additional defenses that arise during the course 16 of this litigation and reserves the right to