Document for Joe Carl Rogers, et al Plaintiff vs. Certainteed Corporation Defendant

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                                Filing # 101392488 E-Filed 01/09/2020 01:21:18 PM

IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA

JOE CARL ROGERS and
HILDA ROGERS his wife,
GENERAL JURISDICTION DIVISION
Plaintiffs,
CASE NO. 19-025692 (27)
versus

ASBESTOS LITIGATION
ACOUISTI ENGINEERING COMPANY
OF FLORIDA, et al.,

Defendants.
FE EEE EEE EEE EEL

ANSWER AND AFFIRMATIVE DEFENSES OF
DEFENDANT DBMP LLC

COMES NOW Defendant DBMP LLC, a North Carolina limited liability company,
successor to certain assets and liabilities, including any liabilities arising from the claims asserted
in this action against an entity that no longer exists named ‘CertainTeed Corporation,’ formerly a
Delaware corporation (hereinafter, “Defendant”), demands a trial by jury, and, without waiving
any defenses, responds to the Plaintiffs’ Complaint.!

FIRST DEFENSE
The Complaint fails to state a claim against Defendant upon which relief may be granted.
SECOND DEFENSE

Plaintiffs’ Complaint improperly commingles allegations against all defendants such that

it is impossible for any individual defendant to answer Plaintiffs’ overly broad and vague

allegations directed against all defendants as a group.

1 The Plaintiff claiming to have suffered injury as the result of asbestos exposure will be designated
herein as the “Principal Plaintiff,” as distinguished from the “Consortium Plaintiff,” i.e., the spouse
of the allegedly Principal Plaintiff.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 01/09/2020 01:21:18 PM.****THIRD DEFENSE
This Court lacks jurisdiction over the person and property of this Defendant and, therefore,
this case should be dismissed as to it. There is no showing of any connexity between the Principal
Plaintiff's alleged injury and Defendant’s activities in the State of Florida such as might support
an assertion of in personam jurisdiction over Defendant, nor is there any other basis for this Court
to exercise jurisdiction over Defendant or its property.
FOURTH DEFENSE
Venue of this civil action is not properly laid and, therefore, this Court should dismiss this
civil action as to this Defendant.
FIFTH DEFENSE
The process served on Defendant was defective and/or insufficient, and is therefore invalid
and a nullity. Because Defendant has not been served with proper and lawful process, this Court
lacks jurisdiction over the corporate person and property of Defendant.
SIXTH DEFENSE
The attempted service of process on Defendant was defective and/or insufficient, and is
therefore invalid and a nullity. Because there has been no proper and lawful service of process
upon Defendant, this Court lacks jurisdiction over the corporate person and property of Defendant.
SEVENTH DEFENSE
Plaintiffs’ Complaint should be dismissed pursuant to Florida Rule of Civil Procedure
1.070(j) because Plaintiffs failed to serve initial process on this Defendant within 120 days after
filing of the initial pleading.
EIGHTH DEFENSE

Plaintiffs’ claims are barred by collateral estoppel and res judicata.NINTH DEFENSE
Under the doctrine of judicial estoppel, Plaintiffs are precluded from taking a position
inconsistent with one taken with respect to the same facts in other litigation and are, therefore,
precluded from alleging the material facts necessary to state a cause of action against this
Defendant.
TENTH DEFENSE
Plaintiffs’ claims are barred by reason of release and/or accord and satisfaction.
ELEVENTH DEFENSE
Plaintiffs’ action is barred by the doctrine of laches.
TWELFTH DEFENSE
This action is barred by the statute of limitations of Florida or the applicable statute of
limitations of any state where the Principal Plaintiff lived or worked.
THIRTEENTH DEFENSE
This action is barred by the applicable statute of repose of Florida or the applicable statute
of repose of any state where the Principal Plaintiff lived or worked.
FOURTEENTH DEFENSE
This action cannot be maintained on substantive or jurisdictional statutes or legal theories
that did not exist prior to the dates on which the Principal Plaintiff allegedly was exposed to this
Defendant’s products, in that such statutes are inapplicable to this action and in that the application
of such legal theories to this action would be unconstitutionally retroactive.
FIFTEENTH DEFENSE
Liability may not be imposed upon this Defendant based on a theory of enterprise or market

share liability. To the extent Plaintiffs’ claims are based upon such theories, they are barred.SIXTEENTH DEFENSE
Florida law has not recognized a duty to “remove and recall” products from the marketplace
post-sale.
SEVENTEENTH DEFENSE
Section 6(2) of Florida’s “Asbestos and Silica Compensation Fairness Act,” Fla. Stat.
§ 774.206(2), bars Plaintiffs from recovering damages for fear or risk of cancer.
EIGHTEENTH DEFENSE
Defendant is entitled to the benefit of any worker’s compensation laws, including the
Florida Workers’ Compensation Act, the Longshoremen’s and Harbor Workers’ Compensation
Act, and the workers’ compensation laws of any other state or jurisdiction where the Principal
Plaintiff may have worked, with respect to immunity or offset for payments received by Plaintiffs.
Workers’ compensation is Plaintiffs’ exclusive remedy.
NINETEENTH DEFENSE
Defendant asserts the change of the product’s condition as a defense.
TWENTIETH DEFENSE
The Principal Plaintiff and/or others misused, improperly used, or substantially modified
Defendant’s products at issue in this case, if any, and such misuse, improper use, or substantial
modification proximately caused and contributed, in whole or in part, to the alleged conditions
described in the Complaint and Plaintiffs’ alleged damages. Therefore, this Defendant is not liable
for any alleged injury or damages that Plaintiffs claim.
TWENTY-FIRST DEFENSE
This Defendant denies the existence of express warranty, implied warranty, privity, and
breach of warranty.

(TY-SECOND DEFENSEPlaintiffs’ Complaint fails to state a cause of action against Defendant as succeeding to the
debts and liabilities of any other manufacturer or seller of asbestos-containing products, and
Defendant specifically denies each allegation concerning successor corporate liability.

TWENTY-THIRD DEFENSE

 

Plaintiffs’ Complaint fails to state a cause of action for punitive damages arising from the
activities of any predecessor corporation, and Defendant specifically denies any such allegation.

T ‘Y-FOURTH DEFENSE

 

This action is barred in whole or in part by the doctrine of shifting responsibility.
TWENTY-FIFTH DEFENSE
Plaintiffs’ claims are or may be barred or otherwise limited or affected by provisions of the
law or statutes of states or jurisdictions other than the State of Florida where the Principal
Plaintiff's alleged exposure may have occurred.
TWENTY-SIXTH DEFENSE
Plaintiffs’ claims are preempted by applicable state and federal statutes, laws, and
regulations.

TWENTY-SEVENTH DEFENSE

If the Principal Plaintiff was exposed to any of Defendant’s products, said products at the
time were manufactured in conformity with federal and state regulations, standards, specifications
and laws. Consequently, recovery by the Plaintiffs herein is barred.

TWENTY-EIGHTH DEFENSE
At the time the Defendant’s products of which Plaintiffs complain left Defendant’s control,

a practical and technically feasible alternative design or formulation was not available without
substantially impairing the usefulness or intended purpose of such products. Therefore,

Defendant’s products were not defective in design or manufacture.TWENTY-NINTH DEFENSE

This Defendant states that its products and the methods of manufacture and testing
conformed to the generally recognized and prevailing industry standards and the state of the art in
existence at the time the design was prepared and the product manufactured and tested.

THIRTIETH DEFENSE

This action is barred in whole or in part because Defendant reasonably relied upon the state

of the medical and scientific art at the time its products were produced.
THIRTY-FIRST DEFENSE

To the extent the products at issue were supplied to the military or another government
entity, the military contractor’s defense (a/k/a the government contractor defense) precludes the
imposition of liability on Defendant.

THIRTY-SECOND DEFENSE

If the products at issue were supplied to a governmental entity pursuant to contract,
Defendant is free from liability because the products conformed in every material respect to
specifications established by said governmental entity, whose knowledge pertaining to the possible
hazards associated with the use of such products was equal to or superior to that of Defendant.

THIRTY-THIRD DEFENSE

If the products at issue were supplied to the Principal Plaintiff's employers pursuant to
contract, such products conformed in every material respect to specifications established by said
employers.

THIRTY-FOURTH DEFENSE

Plaintiffs’ claims should be dismissed because the products sold by Defendant, if any, were

used by manufacturers, purchasers, employers, and others who knew of its potential hazards if

misused.THIRTY-FIFTH DEFENSE
The manufacturers or other purchasers to whom Defendant’s products were sold, if any,
and the Principal Plaintiff and/or his employers were reasonably and adequately warned of any
alleged risk and had actual, constructive, or imputed knowledge of the risks and hazards to which
the Principal Plaintiff was exposed.
THIRTY-SIXTH DEFENSE
Under the sophisticated-user doctrine and the learned-intermediary doctrine, Defendant
had no duty to warn the Principal Plaintiff regarding the products at issue because the Principal
Plaintiff’s employers were experienced and sophisticated with regard to the products, were aware
of the possible health hazards associated with the use of such products, and were under a duty to
warn their employees thereof.
THIRTY-SEVENTH DEFENSE
Defendant reasonably relied upon the Principal Plaintiff's employer to warn the Principal
Plaintiff regarding the products at issue, and had no reasonably feasible way of conveying a
warning directly to the Principal Plaintiff himself.
THIRTY-EIGHTH DEFENSE
This action is barred in whole or in part because Defendant reasonably relied upon the
care and skill of the Principal Plaintiffs employers or labor union and/or other learned
intermediaries.
THIRTY-NINTH DEFENSE
This Defendant pleads the negligence and conduct of the Principal Plaintiff's employers

as a partial or a complete bar to all claims asserted in the Complaint.FORTIETH DEFENSE
This Defendant pleads the failure to join necessary and indispensable parties and the
intervening negligence and intervening causation of entities not parties to this action as a partial
or a complete bar to all claims asserted in Plaintiffs’ Complaint.
FORTY-FIRST DEFENSE
This Defendant is not a joint tortfeasor with any other Defendant herein, and, accordingly,
this Defendant may not be held jointly and severally liable with other Defendants.
FORTY-SECOND DEFENSE
Pursuant to Florida Statute § 768.81, Defendant is not subject to joint and several liability
in this case.
FORTY-THIRD DEFENSE
The damages alleged by Plaintiffs, if any, were the result, in whole or in part, of acts or
omissions of third parties over which Defendant exercised no authority or control and for which
Defendant has no liability.
FORTY-FOURTH DEFENSE
If the Principal Plaintiff sustained injuries as a result of exposure to asbestos or asbestos-
containing products, which is denied, then such injuries were or may have been due to exposure
to products of manufacturers or distributors not named as Defendants in this action.
FORTY-FIFTH DEFENSE
If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, any liability
is limited to Defendant’s percentage of fault as provided by Florida Statute § 768.81 and Fabre v.
Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law. Specifically, the Principal Plaintiff's
injuries, if any, arising from his alleged asbestos exposure were wholly or partially caused by

actions and/or negligence of other manufacturers and/or distributors of asbestos-containingproducts to which he was exposed, certain entities that supplied asbestos fiber to the
manufacturers, installation contractors who used said products, premises owners, and others. The
responsible entities include, but are not limited, to the following: Johns-Manville Corporation;
UNR Industries, Inc., and related companies, including Union Asbestos and Rubber Company,
a/k/a UNARCO; Amatex Corporation, f/k/a American Asbestos Textile Corporation; Forty-Eight
Insulations, Inc.; Standard Insulations, Inc.; Gatke Corporation; Nicolet, Inc.; Keasbey & Mattison
Company; Hillsborough Holdings Corporation and its predecessors in interest, Jim Walter
Industries, Celotex, and Panacon; Raymark Industries, f/k/a Raybestos-Manhattan, and Raytech
Corporation, as successor in interest to Raymark Industries, f/k/a Raybestos-Manhattan; Raymark
Corporation; Celotex Corporation and its various subsidiaries and predecessors in interest,
including Carey Canada, Inc., Carey Canadian Mines, Ltd., Brinco Mining Ltd., Panacon, Philip
Carey Company, Philip Carey Manufacturing Company, and Smith & Kanzler; Ancor Holdings,
Inc., and its subsidiary, National Gypsum Company; Standard Asbestos Manufacturing &
Insulation Company, a/k/a Standard Asbestos Manufacturing & Insulating Company; Eagle-Picher
Industries, Inc.; H.K. Porter Company and its subsidiaries and predecessors in interest, including
Thermoid and Southern Asbestos Company, a/k/a Southern Textile; Keene Corporation, successor
in interest to Baldwin-Ehret-Hill; Rock Wool Manufacturing Company; M.H. Detrick; Brunswick
Fabricators Inc.; Joy Global Inc., f/k/a Hamischfeger Industries, Inc.; Rutland Fire Clay Company;
Babcock & Wilcox Company and subsidiaries Americon, Inc., B& W Construction Company, and
Diamond Power International, Inc.; Pittsburgh Corning Corporation; Owens Corning Corporation
and its subsidiaries and predecessors in interest, including, but not limited to, Fibreboard
Corporation (f/k/a Plant Rubber & Asbestos Works), Owens-Coming Fiberglas Technology, Inc.,
CDC Corporation, and Pabco; Armstrong World Industries, Inc.; G-I Holdings, Inc., and its

predecessors in interest, GAF Corporation and Rubberoid Company; W.R. Grace and Companyand its affiliated companies; the Zonolite Company, and W.R. Grace as its successor in interest;
Skinner Engine Company; USG Corporation and subsidiaries United States Gypsum Company,
USG Interiors, and Beadex Manufacturing, LLC; Chicago Mastic Company; Permalastic Products
Company; United States Mineral Products Company; Eastco Industrial Safety Corporation;
Federal Mogul, including Gasket Holdings, Inc. (Flexitallic), Ferodo America, Inc., Moog
Automotive (Wagner Brake Products), and T&N Plc (including Turner & Newall, Turner Asbestos
Fibres Company, and other T&N subsidiaries); North American Refractories Corporation
(NARCO); Kaiser Aluminum; Harbison-Walker Refractories, a/k/a INDRESCO, Inc.; A-Best
Products Company; A.P. Green Refractories Company; Artra Group (Synkoloid); Plibrico
Company; Porter-Hayden Company and its predecessors, H. W. Porter & Company, Inc., and Reid
Hayden, Inc.; Western Macarthur, f/k/a Western Asbestos; Proko Industries; Combustion
Engineering; Congoleum; Kellogg Brown & Root; DII Industries, f/k/a Dresser Industries; Muralo
Company (including Synkoloid) and its affiliate, Norton & Son of California, Inc.; Flintkote;
Quigley Company, Inc.; CAPCO Pipe Company; Canadian Johns-Manville; Lake Asbestos of
Quebec; Asbestos Corporation, Ltd.; Atlas Asbestos; Atlas Corporation and subsidiaries, including
Hidden Splendor Mining Company; Pacific Asbestos; Johnson Mines; National Asbestos Mines,
Ltd.; Atlas Adhesives; Bell Asbestos Mines, Ltd; CSR; Cape Asbestos Company, Ltd., and related
companies North American Asbestos Corporation and Continental Producers Corporation; Cassiar
Mines, Cassiar Mining Corporation Ltd., Cassiar Asbestos Corporation, and Cassiar Resources
Ltd.; Powhatan Mining Company; Pacor, Inc., a/k/a Philadelphia Asbestos Corporation, and Pacor
Material Supply Company; Delaware Insulation, a/k/a DI Distributors, Inc.; EJ. Bartells
Company; L & W Supply Corporation; Shook and Fletcher; CE Thurston; A.C. & S., Inc., f/k/a
Anmstrong Contracting and Supply; Wallace & Gale Company; Standard Insulations, Inc.; Fuller-

Austin Insulation Company; Bigelow-Liptak Corporation; JT Thorpe; Burns and Roe, Inc.;

10Washington Group International, f/k/a Morrison Knudsen; Waterman Steamship Corporation;

Prudential Lines, Inc.; Mclean Industries and First Colony Farms and their subsidiaries, U.S. Lines

and United States Lines (S.A.); Todd Shipyards; American Shipbuilding; Lykes Brothers

Steamship; Bethlehem Steel Corporation; Swan Transportation and subsidiary Tyler Pipe

Industries; Oglebay Norton Co.; Special Electric; Utex Industries; API, Inc.; Asarco (and its

subsidiaries, AR Sacaton LLC, Southern Peru Holdings, LLC, and Asarco Exploration Company);

Brauer Supply Co.; ABB Lummus Global; Lloyd E. Mitchell Co.; Thorpe Insulation Co.; Pacific

Insulation Co.; Hercules Chemical Co.; Christy Refractories Co.; TH Agriculture & Nutrition,

LLC; Plant Insulation Co.; General Motors Corp.; Durabla Manufacturing Co.; Bondex

International, Inc.; Specialty Products Holding Corp.; Garlock Sealing Technologies LLC; The

Anchor Packing Company; Leslie Controls, Inc.; Triple A Machine Shop, Inc.; Pulmosan Safety

Equipment Corp.; defendants previously dismissed from this action; and existing defendants that

are subsequently dismissed from this action. Specifically, Defendant is entitled to apportionment

with respect to the foregoing entities on the following grounds:

A. If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment of damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to the following as manufacturers of products that contained
asbestos or included asbestos-containing components, their predecessors and successors in
interest, and any related companies: UNR Industries, Inc., and related companies,
including Union Asbestos and Rubber Company, a/k/a UNARCO; Johns-Manville
Corporation; Amatex Corporation, f/k/a American Asbestos Textile Corporation; Forty-
Eight Insulations, Inc.; Standard Insulations, Inc.; Gatke Corporation; Nicolet, Inc.;
Keasbey & Mattison Company; Hillsborough Holdings Corporation and its predecessors

in interest, Jim Walter Industries, Celotex, and Panacon; Raymark Industries, f/k/a

11Raybestos-Manhattan, and Raytech Corporation, as successor in interest to Raymark
Industries, f/k/a Raybestos-Manhattan; Raymark Corporation; Celotex Corporation and its
various subsidiaries and predecessors in interest, including Carey Canada, Inc., Carey
Canadian Mines, Ltd., Brinco Mining Ltd., Panacon, Philip Carey Company, Philip Carey
Manufacturing Company, and Smith & Kanzler; Ancor Holdings, Inc., and its subsidiary,
National Gypsum Company; Standard Asbestos Manufacturing & Insulation Company,
a/k/a Standard Asbestos Manufacturing & Insulating Company; Eagle-Picher Industries,
Inc.; H.K. Porter Company and its subsidiaries and predecessors in interest, including
Thermoid and Southern Asbestos Company, a/k/a Southern Textile; Keene Corporation,
successor in interest to Baldwin-Ehret-Hill; Rock Wool Manufacturing Company; M.H.
Detrick; Brunswick Fabricators Inc.; Joy Global Inc., f/k/a Hamischfeger Industries, Inc.;
Rutland Fire Clay Company; Babcock & Wilcox Company and subsidiaries Americon,
Inc., B&W Construction Company, and Diamond Power International, Inc.; Pittsburgh
Corning Corporation; Owens Corning Corporation and its subsidiaries and predecessors in
interest, including, but not limited to, Fibreboard Corporation (f/k/a Plant Rubber &
Asbestos Works), Owens-Corning Fiberglas Technology, Inc., CDC Corporation, and
Pabco; Armstrong World Industries, Inc.; G-I Holdings, Inc., and its predecessors in
interest, GAF Corporation and Rubberoid Company; W.R. Grace and Company and its
affiliated companies; Skinner Engine Company; USG Corporation and subsidiaries United
States Gypsum Company, USG Interiors, and Beadex Manufacturing, LLC; Chicago
Mastic Company; Permalastic Products Company; United States Mineral Products
Company; Eastco Industrial Safety Corporation; Federal Mogul, including Gasket
Holdings, Inc. (Flexitallic), Ferodo America, Inc., Moog Automotive (Wagner Brake

Products), and T&N Plc (including Turner & Newall, Turner Asbestos Fibres Co, and other

12T&N subsidiaries); North American Refractories Corporation (NARCO); Kaiser
Aluminum; Harbison-Walker Refractories, a/k/a INDRESCO, Inc.; A-Best Products
Company; A.P. Green Refractories Company; Artra Group (Synkoloid); Plibrico
Company; Porter-Hayden Company and its predecessors, H. W. Porter & Company, Inc.,
and Reid Hayden, Inc.; Western Macarthur, f/k/a Western Asbestos; Proko Industries;
Combustion Engineering; Congoleum; Kellogg Brown & Root; DII Industries, f/k/a
Dresser Industries; Muralo Company (including Synkoloid) and its affiliate, Norton & Son
of California, Inc.; Flintkote; Quigley Company, Inc.; CAPCO Pipe Company; Utex
Industries; Brauer Supply Co.; ABB Lummus Global; Lloyd E. Mitchell Co.; Thorpe
Insulation Co.; Pacific Insulation Co.; Hercules Chemical Co.; Christy Refractories Co.;
TH Agriculture & Nutrition, LLC; Plant Insulation Co.; General Motors Corp.; Durabla
Manufacturing Co.; Bondex International, Inc.; Specialty Products Holding Corp.; Garlock
Sealing Technologies LLC; The Anchor Packing Company; Leslie Controls, Inc.; other
manufacturers of products of the type identified by Plaintiffs; any manufacturers that were
previously defendants to this action but have been dismissed; and any manufacturers that
are currently defendants to this action but are subsequently dismissed. Pursuant to Fabre

vy. Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law, these entities are or may be

 

at least partially at fault for the injuries allegedly suffered by the Principal Plaintiff. As
manufacturers of asbestos-containing products (or products that included asbestos-
containing components) that wholly or partially caused the Principal Plaintiff's alleged
injuries, the above-listed manufacturers owed the Principal Plaintiff the duty to warn of
potential asbestos hazards from using such products. The above named manufacturers
breached their duties by negligently failing to warn the Principal Plaintiff of the potential

asbestos hazards of the products they manufactured, and such failure wholly or partially

13caused the Principal Plaintiff's alleged injuries. The above-named manufacturers knew or
should have known of the dangerous condition that existed as a result of their negligent
failure to warn the Principal Plaintiff. Furthermore, the Principal Plaintiff sustained his
alleged injuries wholly or partially as a result of the above-named manufacturers’ tortious
conduct.

If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment of damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to those manufacturers identified in Paragraph A, supra.

Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law, these

 

entities are or may be at least partially at fault for the injuries allegedly suffered by the
Principal Plaintiff. Because they manufactured and/or distributed defective products that
wholly or partially caused the Principal Plaintiff’s injuries, the above-named manufacturers
are strictly liable to the Plaintiffs for said injuries and the consequences thereof.

If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to the following suppliers of asbestos fiber (and/or asbestos-
contaminated vermiculite), their predecessors and successors in interest, and any related
companies: Johns-Manville Corporation; Canadian Johns-Manville; Lake Asbestos of
Quebec; Celotex Corporation and its various subsidiaries and predecessors in interest,
including Carey Canada, Inc., Carey Canadian Mines, Ltd., Brinco Mining Ltd., Panacon,
Philip Carey Company, Philip Carey Manufacturing Company, and Smith & Kanzler;
Asbestos Corporation, Ltd.; Atlas Asbestos; Atlas Corporation and subsidiaries, including
Hidden Splendor Mining Company; Pacific Asbestos; Johnson Mines; National Asbestos

Mines, Ltd.; Atlas Adhesives; Bell Asbestos Mines, Ltd; CSR; Cape Asbestos Company,

14Ltd., and related companies North American Asbestos Corporation and Continental
Producers Corporation; Cassiar Mines, Cassiar Mining Corporation Ltd., Cassiar Asbestos
Corporation, and Cassiar Resources Ltd.; Turner & Newall and other predecessors in
interest to Federal Mogul; Powhatan Mining Company; H.K. Porter Company; the Zonolite
Company, and W.R. Grace and Company as its successor in interest; Asarco (and its
subsidiaries, AR Sacaton LLC; Southern Peru Holdings, LLC; and Asarco Exploration
Company); any suppliers of asbestos fiber that were previously defendants to this action

but have been dismissed; and any suppliers of asbestos fiber that are currently defendants

 

to this action but are subsequently dismissed. Pursuant to Fabre v. Marin, 623 So.2d 1182
(Fla. 1993), or other applicable law, these entities are or may be at least partially at fault
for the injuries allegedly suffered by the Principal Plaintiff. These entities supplied
asbestos fiber to which the Principal Plaintiff was exposed, either directly or through
contact with asbestos-containing products. As such, these entities had a duty to warn their
customers, manufacturers of asbestos-containing products, of the potential asbestos
hazards associated with their asbestos fiber. Each of these suppliers breached its respective
duty by negligently failing to warm its customers of the potential asbestos hazards of the
asbestos fiber it supplied, and such failure wholly or partially caused the Principal
Plaintiff's alleged injuries. These suppliers knew or should have known of the dangerous
condition that existed as a result of their negligent failure to warn their customers and, to
the extent applicable, the Principal Plaintiff. Furthermore, the Principal Plaintiff sustained
his alleged injuries wholly or partially as a result of these entities’ tortious conduct.

Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law, the

 

suppliers identified in Paragraph C, supra, are or may be at least partially at fault for the

injuries allegedly suffered by the Principal Plaintiff. These suppliers are subject to strict

15liability for manufacturing and/or distributing a defective product that wholly or partially
caused the Principal Plaintiff's injuries.

If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment of damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to the following as suppliers and distributors of asbestos-
containing products, their predecessors and successors in interest, and any related
companies: Pacor, Inc., a/k/a Philadelphia Asbestos Corporation, and Pacor Material
Supply Company; Delaware Insulation, a/k/a DI Distributors, Inc.; Standard Asbestos
Manufacturing & Insulation Company, a/k/a Standard Asbestos Manufacturing &
Insulating Company; E.J. Bartells Company; L & W Supply Corporation; Porter-Hayden
Company and its predecessors, H. W. Porter & Company, Inc., and Reid Hayden, Inc.;
Shook and Fletcher; Western Macarthur, f/k/a Western Asbestos; CE Thurston; A.C. & S.,
Inc., f/k/a Armstrong Contracting and Supply; other suppliers and distributors of products
of the type identified by Plaintiffs; any suppliers and distributors of asbestos-containing
products that were previously defendants to this action but have been dismissed; and any

suppliers and distributors of asbestos-containing products that are currently defendants to

 

this action but are subsequently dismissed. Pursuant to Fabre v. Marin, 623 So.2d 1182
(Fla. 1993), or other applicable law, these entities are or may be at least partially at fault
for the injuries allegedly suffered by the Principal Plaintiff. As suppliers and distributors
of asbestos-containing products that caused the Principal Plaintiff's alleged injuries, the
above-listed companies owed the Principal Plaintiff the duty to warn of potential asbestos
hazards from using such products. The above named companies breached their duties by
negligently failing to warn the Principal Plaintiff of the potential asbestos hazards of the

products they supplied and distributed, and such failure wholly or partially caused the

16Principal Plaintiff's alleged injuries. The above-named companies knew or should have
known of the dangerous condition that existed as a result of their negligent failure to warn
the Principal Plaintiff. Furthermore, the Principal Plaintiff sustained his alleged injuries
wholly or partially as a result of the above-named companies’ tortious conduct.

Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law, the

 

distributors and suppliers identified in Paragraph E, supra, are or may be at least partially
at fault for the injuries allegedly suffered by the Principal Plaintiff. These suppliers and
distributors of asbestos-containing products are subject to strict liability for distributing a
defective product that wholly or partially caused the Principal Plaintiff's injuries.

If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment of damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to the following as installers of asbestos-containing products
and construction contractors who used asbestos-containing products, as well as their
predecessors and successors in interest and any related companies: Wallace & Gale
Company; Standard Insulations, Inc.; Standard Asbestos Manufacturing & Insulation
Company, a/k/a Standard Asbestos Manufacturing & Insulating Company; Fuller-Austin
Insulation Company; E.J. Bartells Company; Bigelow-Liptak Corporation; JT Thorpe;
Porter-Hayden Company and its predecessors, H. W. Porter & Company, Inc., and Reid
Hayden, Inc.; A.C. & S., Inc., f/k/a Armstrong Contracting and Supply; Western
Macarthur, f/k/a Wester Asbestos; Burns and Roe, Inc.; Washington Group International,
f/k/a Morrison Knudsen; Todd Shipyards; American Shipbuilding; API, Inc.; other
installers and contractors who used products of the type identified by Plaintiffs; any
installers and contractors that were previously defendants to this action but have been

dismissed; and any installers and contractors that are currently defendants to this action but

17are subsequently dismissed. Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or

 

other applicable law, these entities are or may be at least partially at fault for the injuries
allegedly suffered by the Principal Plaintiff. As installers and contractors who used
asbestos-containing products that wholly or partially caused the Principal Plaintiff's
alleged injuries, the above-listed companies owed the Principal Plaintiff the duty to warn
of potential asbestos hazards from using such products. The above named companies
breached their duties by negligently failing to warn the Principal Plaintiff of the potential
asbestos hazards of the products they used, and such failure wholly or partially caused the
Principal Plaintiff's alleged injuries. The above-named entities knew or should have
known of the dangerous condition that existed as a result of their negligent failure to warn
the Principal Plaintiff. Furthermore, the Principal Plaintiff sustained his alleged injuries
wholly or partially as a result of the above-named entities’ tortious conduct.

Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or other applicable law, the

 

installers and contractors identified in Paragraph G, supra, are or may be at least partially
at fault for the injuries allegedly suffered by the Principal Plaintiff. To the extent these
installers and contractors also supplied asbestos-containing materials, they are subject to
strict liability for distributing a defective product that wholly or partially caused the
Principal Plaintiff's injuries.

If Defendant is liable to Plaintiffs, which liability Defendant expressly denies, Defendant
is entitled to an apportionment of damages pursuant to Florida Statutes § 768.81, or other
applicable law, with respect to the following as employers and/or as the owner or party in
possession of premises where the Principal Plaintiff was exposed to asbestos, as well as
their predecessors and successors in interest and any related companies: Waterman

Steamship Corporation; Prudential Lines, Inc.; Mclean Industries and First Colony Farms

18and their subsidiaries, U.S. Lines and United States Lines (S.A.); Todd Shipyards;
American Shipbuilding; Lykes Brothers Steamship; Bethlehem Steel Corporation; Swan
Transportation and subsidiary Tyler Pipe Industries; Washington Group International, f/k/a
Morrison Knudsen; Oglebay Norton Co.; Hercules Chemical Co.; Triple A Machine Shop,
Inc.; any such entities that were previously defendants to this action but have been
dismissed; and any such entities that are currently defendants to this action but are

subsequently dismissed. Pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), or other

 

applicable law, these entities are or may be at least partially at fault for the injuries allegedly
suffered by the Principal Plaintiff. The Principal Plaintiff's alleged injuries were wholly
or partially caused by these entities’ acts or omissions in breach of their duties of care to
the Principal Plaintiff.

In addition, the Principal Plaintiffs injuries, if any, arising from his alleged asbestos
exposure are wholly or partially the result of actions and/or negligence of other parties,
persons, firms, or corporations in addition to those specified above, including, but not
limited to, the Principal Plaintiff himself; his various employers during the time of his
alleged asbestos exposure; any and all persons or entities that owned or had a possessory
interest in the locations where the Principal Plaintiff may have been exposed to asbestos;
any and all persons or entities that otherwise had control over or responsibility for the
locations where the Principal Plaintiff may have been exposed to asbestos; and the entities
identified in the Principal Plaintiff's Social Security printout and exposure sheets.

In addition, Defendant asserts its right to apportionment with respect to manufacturers and
distributors of tobacco products consumed by the Principal Plaintiff or members of his
household. Tobacco products consumed by the Principal Plaintiff or members of his

household caused or contributed to the Principal Plaintiff’s alleged injuries, and the

19manufacturers and distributors of these products are liable on the grounds of negligence

and strict product liability. Likewise, Defendant asserts that manufacturers and distributors

of other harmful products to which the Principal Plaintiff was exposed are liable on the

grounds of negligence and strict product liability, and Defendant asserts its right to

apportionment with respect to these manufacturers and distributors.

FORTY-SIXTH DEFENSE
Pursuant to Fla. Stat. §§ 46.015(2), 768.041(2), and 768.31(5), Defendant is entitled to a
set-off or credit in the amount of any settlement or compromise heretofore or hereafter reached by
Plaintiffs, individually or jointly, with any other person or entity for any of Plaintiffs’ alleged
damages. Defendant also asserts its right to collateral-source set-off under Fla. Stat. § 768.76.
FORTY-SEVENTH DEFENSE
Defendant denies that the Principal Plaintiff has suffered any injury or that Plaintiffs have
incurred any damages. As to any injury or damages alleged to have been incurred, however, the
Principal Plaintiff failed to exercise ordinary care for his own safety, and this failure proximately
caused his alleged injury and Plaintiffs’ alleged damages. Therefore, the claims asserted in
Plaintiffs’ Complaint are partially or completely barred under the doctrines of contributory
negligence and comparative fault.
FORTY-EIGHTH DEFENSE

Defendant denies that the Principal Plaintiff has suffered any injury or that Plaintiffs have
incurred any damages. As to any injury or damages alleged to have been incurred, however, the
Principal Plaintiff voluntarily and knowingly assumed the risk of incurring the alleged injury or

damages, and, therefore, Plaintiffs are not entitled to recover from Defendant.

20FORTY-NINTH DEFENSE

If the Principal Plaintiff suffered any injuries as alleged in the Complaint, which this
Defendant specifically denies, Plaintiffs failed to make reasonable efforts to mitigate these injuries
and Plaintiffs’ damages.

FIFTIETH DEFENSE

Plaintiffs failed to take action to prevent the avoidable consequences of any action or

omission of which they complain.
FIFTY-FIRST DEFENSE

If Plaintiffs or any member of their household used tobacco products, this use was a failure
to exercise ordinary care for the Principal Plaintiff's own safety and was the sole or primary cause
of his injuries. The negligence of Plaintiffs or members of their household in using tobacco
products or the negligence of third parties engaged in the sale, manufacture, or distribution of
tobacco products is a partial or a complete bar to all claims asserted in Plaintiffs’ Complaint.

FIFTY-SECOND DEFENSE

The Principal Plaintiff's alleged contact with or use of any asbestos-containing products
supplied, sold, or manufactured by this Defendant, if any such use or contact in fact occurred, was
not a substantial contributing cause of said Plaintiff’s alleged injuries.

FIFTY-THIRD DEFENSE

Any exposure of the Principal Plaintiff to this Defendant’s products was so minimal as to

be insufficient to establish to a reasonable degree of medical probability that such exposure to the

product or products was a contributing cause of said Plaintiff's injuries.

21FIFTY-FOURTH DEFENSE
There is no causal connection between Defendant, or any product sold by Defendant, and
any injury sustained by the Principal Plaintiff, such causal connection being remote, indefinite,
and speculative. Consequently, the Complaint should be dismissed as to Defendant.
FIFTY-FIFTH DEFENSE
Any damages claimed by the Plaintiffs that have not accrued are purely speculative,
uncertain, and contingent and therefore cannot be recovered in this action.
FIFTY-SIXTH DEFENSE
If the Principal Plaintiff suffered injuries, which this Defendant specifically denies, said
injuries were not caused or contributed to by his exposure to Defendant’s asbestos-containing
products, but rather by his exposure to dangerous or hazardous chemicals, fumes, products,
substances, or dust that were present at his workplace or elsewhere.
FIFTY-SEVENTH DEFENSE
If there is an association between the Principal Plaintiff's alleged injuries and various
agents to which he may have been exposed during his lifetime, which Defendant does not concede,
the number of different agents to which he was exposed within and outside the workplace during
his lifetime and the lack of definitive evidence as to the amount of actual exposure to each such
agent makes it impossible to determine, to the requisite degree of legal certainty, whether a causal
connection exists between his alleged injuries and any particular agent.
FIFTY-EIGHTH DEFENSE
Plaintiffs’ claim for punitive damages is barred by Section 7(1) of Florida’s “Asbestos and
Silica Compensation Fairness Act,” Fla. Stat. § 774.207(1).
FIFTY-NINTH DEFENSE

All claims for punitive damages against this Defendant are barred by:

22a

2)

(3)

)

6)

(6)

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and the Due Process Clause of Article I, Section 9, of the Constitution
of the State of Florida;

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution;

The Excessive Fines Clause of the Eighth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment, and the
Excessive Fines Clause of Article I, Section 17, of the Constitution of the State of
Florida;

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment, and the
Double Jeopardy Clause of Article I, Section 9, of the Constitution of the State of
Florida;

The rights of the accused set forth in the Sixth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment, and
Article I, Section 16, of the Constitution of the State of Florida;

Other provisions of the Constitution of the United States and the Constitution of
the State of Florida.

SIXTIETH DEFENSE

Plaintiffs’ claim for punitive damages is barred for failure to comply with Fla. Stat.

§ 768.72. Furthermore, Plaintiffs’ claim for punitive damages must be deemed automatically

stricken pursuant to Section III.D of this Court’s Amended Omnibus Order on Trial Setting,

Discovery and Product Identification in Personal Injury Asbestos Litigation (Revised November,

2004).

23SIXTY-FIRST DEFENSE

Pursuant to Section 5(1) of Florida’s “Asbestos and Silica Compensation Faimess Act,”
Fla. Stat. § 774.205(1), Plaintiffs’ Complaint must be dismissed unless they demonstrate either
(a) that they are currently domiciled in Florida, or (b) that the Principal Plaintiff was exposed to
asbestos in Florida and that this exposure in Florida was a substantial contributing factor to the
alleged physical impairment underlying Plaintiffs’ claims.

SIXTY-SECOND DEFENSE

Under the doctrine of forum non conveniens, Florida is not the proper jurisdiction in which
to litigate this case. Pursuant to Florida Rule of Civil Procedure 1.061 and Section IV.B of this
Court’s Amended Omnibus Order on Trial Setting, Discovery and Product Identification in
Personal Injury Asbestos Litigation (Revised November, 2004), the Court should exercise its
authority to dismiss this case for the convenience of the parties and in the interests of justice for
refiling in the proper forum, where an adequate legal remedy exists. In further support of this
Defense, Defendant adopts and incorporates herein by reference the Master Motion of Defendants
Bayer CropScience, Inc. (f/k/a AmChem Products, Inc.), CertainTeed Corp., Dana Corp.,
Flowserve Corp. (f/k/a Durametallic, Inc.), Ericsson Inc., Dow Chemical Co., Maremont Corp.,
Union Carbide Corp., and Zurn Industries, Inc., to Dismiss Based on Forum Non Conveniens and
Memorandum of Law in Support Thereof, said motion having previously been filed in this Court’s
InRe: Asbestos Litigation file, Case No. 92-90,000(27). Alternatively, pursuant to Florida Statute
§ 47.122, this action should be transferred to another Florida venue for the convenience of the
parties or witnesses or in the interest of justice.

SIXTY-THIRD DEFENSE
Plaintiffs’ Complaint must be dismissed because Plaintiffs failed to comply with

Section IV.A of this Court’s Amended Omnibus Order on Trial Setting, Discovery and Product

24Identification in Personal Injury Asbestos Litigation (Revised November, 2004), which requires

Plaintiffs to serve a completed Forum Non Conveniens Fact Sheet with the Complaint. Plaintiffs

either failed to serve a Forum Non Conveniens Fact Sheet at all or else served a purported Forum

Non Conveniens Fact Sheet that was deficient for failure to include any or all of the following

required information:

a)
b)

c)

4)
e)

8)

h)

dD
k)

m)

whether the Plaintiffs currently reside in Florida;

whether the Principal Plaintiff resided in Florida at the time of alleged exposure
and, if so, where in Florida;

whether any alleged asbestos exposure occurred in Florida and, if so, where in
Florida;

whether any alleged asbestos exposure occurred in Broward County, Florida;

in which states, other than Florida, the alleged asbestos exposure occurred;

the percentage of total asbestos exposure that occurred in Florida;

whether any fact and/or expert witnesses reside in Florida and, if so, where in
Florida;

in which state the diagnosis of disease relevant to this lawsuit of occurred;

in which state the Principal Plaintiff received medical treatment relevant to the
lawsuit;

the percentage of medical treatment rendered in Florida;

whether any defendant resides in Florida and, if so, where in Florida;

whether any domestic corporate defendant has or usually keeps an office for
transaction of its customary business in Florida and, if so, where in Florida;
whether any foreign corporate defendant has an agent or other representative in

Florida and, if so, where in Florida.

25SIXTY-FOURTH DEFENSE

Plaintiffs’ claims other than negligent failure to warn or strict products liability, including,
but not limited to, claims for breach of warranty, conspiracy, intentional infliction of emotional
distress, fraud, and misrepresentation, must be deemed automatically stricken pursuant to Section
IILA of this Court’s Amended Omnibus Order on Trial Setting, Discovery and Product
Identification in Personal Injury Asbestos Litigation (Revised November, 2004).

SIXTY-FIFTH DEFENSE

Plaintiffs failed to serve an “exposure sheet” in compliance with Section VI of this Court’s
Amended Omnibus Order on Trial Setting, Discovery and Product Identification in Personal Injury
Asbestos Litigation (Revised November, 2004). No document purporting to be an “exposure
sheet” was served at the time of service of the Complaint. Alternatively, what purports to be an
“exposure sheet” fails to identify the products to which the Principal Plaintiff was allegedly
exposed, the dates of each exposure, the place of each exposure, and/or the names and addresses
of witnesses who will testify to such exposure. Accordingly, Plaintiffs’ Complaint should be
dismissed on this basis.

SIXTY-SIXTH DEFENSE

Pursuant to Section 4 of Florida’s “Asbestos and Silica Compensation Fairness Act,” Fla.
Stat. § 774.204, recovery by Plaintiffs is barred because the Principal Plaintiff does not have a
physical impairment as a result of a medical condition to which exposure to asbestos was a
substantial contributing factor.

SIXTY-SEVENTH DEFENSE
Pursuant to Section 4 of Florida’s “Asbestos and Silica Compensation Fairness Act,” Fla.

Stat. § 774.204, recovery by the Plaintiffs is barred because factors other than asbestos exposure

26were more probably the cause of the Principal Plaintiff's alleged medical condition and physical

impairment.

SIXTY-EIGHTH DEFENSE

Plaintiffs’ Complaint must be dismissed because Plaintiffs failed to submit a “sworn

information form” as required by Section 5(3) of Florida’s “Asbestos and Silica Compensation

Fairness Act,” Fla. Stat. § 774.205(3). Alternatively, Plaintiffs’ purported “sworn information

form” is inadequate in that it fails to include some or all of the following statutorily required

elements:

a)

b)

c)

4)

e)

8)

Plaintiffs’ name, address, date of birth, and marital status;

the specific location of each alleged exposure;

the beginning and ending dates of each alleged exposure as to each asbestos product
for each location at which the Principal Plaintiffs exposure allegedly occurred;
the Principal Plaintiff's occupation and the name of the Principal Plaintiff's
employer at the time of each alleged exposure;

the specific asbestos-related condition claimed to exist;

any supporting documentation for the alleged condition; and

if Plaintiffs intend to establish the Principal Plaintiff's asbestos exposure through
the testimony of an “index person,” as defined in the Asbestos and Silica
Compensation Fairness Act, the name, address, date of birth, and marital status of
each index person; the Principal Plaintiff’s relationship to each index person; and,
for each index person, the beginning and ending dates of each alleged exposure as
to each asbestos product for each location at which exposure allegedly occurred.

SIXTY-NINTH DEFENSE

27Plaintiffs’ Complaint must be dismissed because Plaintiffs failed to submit a report of
settlements and judgments obtained for the Principal Plaintiff's alleged injury, as is required by
Section § 7(2) of Florida’s “Asbestos and Silica Compensation Fairness Act,” Fla. Stat.
§ 774.207(2).

SEVENTIETH DEFENSE

Plaintiffs’ Complaint must be dismissed because Plaintiffs failed to submit with their
Complaint a written report and supporting test results constituting prima facie evidence that the
Principal Plaintiff has an asbestos-related physical impairment meeting the requirements specified
in Section 4 of Florida’s “Asbestos and Silica Compensation Faimess Act,” Fla. Stat. § 774.204.
Altematively, Plaintiffs’ purported prima facie evidence is inadequate in that it fails to include
some or all of the requisite elements that Section 4 specifies for the Principal Plaintiff's alleged

disease.

SEV

  

-FIRST DEFENSE

Plaintiffs’ Complaint must be dismissed because the written report and supporting test
results, if any, that Plaintiffs submitted with their Complaint were not obtained from a “qualified
physician,” as that term is defined in Section 3(23) of Florida’s “Asbestos and Silica Compensation
Fairness Act,” Fla. Stat. § 774.203(23).

SEVENTY-SECOND DEFENSE

Pursuant to Section 4(9)(a) of Florida’s “Asbestos and Silica Compensation Fairness Act,”
Fla