Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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MICHAEL J. PIETRYKOWSKI (SBN: 118677)
Mpieirvkowski@eordonrees.com

GORDON & REES LLP ELECTRONICALLY
Embarcadero Center West

275 Battery Street, Twentieth Floor si F ILE D .
San Francisco, CA 94111 superior Court of California,
+ 5 County of San Francisco
Telephone: (415) 986-5900

Facsimile: (415) 986-8054 SEP 14 2010
Clerk of the Court
BY: EDNALEEN JAVIER.

Attorneys for Defendant Deputy Clerk

HENSEL PHELPS CONSTRUCTION CO

SUPERIOR COURT. OF CALIFORNIA
COUNTY OF SAN FRANCISCO —- UNLIMITED CIVIL JURISDICTION

LAURANCE HAGEN, CASE.NO. GCG-10-275582
Plaintiff, ANSWER TO COMPLAINT FOR
PERSONAL INJURY ~ ASBESTOS.
Vv.

ASSOCIATED INSULATION OF

CALIFORNIA., et al., Complaint Filed: June .2,.2010.

Defendants,

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COMES NOW defendant, HENSEL PHELPS CONSTRUCTION CO and in answer to
plaintiff's complaint on file herein, and each and every cause of action allegedly set forth therein,
answers, alleges and denies.as follows:

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This answering defendant denies each and every, all and singular, generally and
specifically, the allegations contained in the complaint, and each and every cause of action
allegedly set forth therein, as they may apply to this answering defendant,

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Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was legally responsible in some manner
for the circumstances and happenings as alleged therein, or at all, and denies that plaintiff has
been damaged in the manner set forth in said unverified complaint and each and every cause of

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS0 RD MD HR & BR Ww

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action allegedly set forth therein.
I.

Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was negligent and/or careless in any
Tespect whatsoever, as alleged therein, or at all, and denies that plaintiff has been damaged in the
manner set forth in said unverified complaint and each and every cause of action allegedly set
forth therein.

FIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the complaint and causes of action therein
fail to state facts sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
AS AND FOR A SECOND, SEPARATE. AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the plaintiff was himself careless and
negligent in and about the matters referred to.in the complaint and that such negligence and
carelessness onthe part of the plaintiff proximately caused and contributed to the damages
complained of, if any there were.
THIRD AFFIRMATIVE DEFENSE
AS AND POR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO-SAID

COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of
ordinary care, should have known of the risks and hazards involved in the undertaking in which
plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and
voluntarily ‘consent to assume the risks and hazards involved in the undertaking,

FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTH, SEPARATE AND. AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff. was himself solely and totally
negligent in and about the matters referred to in the complaint and that such negligence and

carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSeo 8 BW DH BB WwW

the negligence involved in this case and was the sole cause of the injuries and damages
complained of, if any there were.
FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons without this defendant's knowledge and approval
redesigned, modified, altered, and used this defendant's products contrary to instructions and
contrary to the custom and practice of the industry. This redesign, modification, alteration, and
use so substantially changed the product's character that if there was a defect in the product --
which is specifically denied -- such defect resulted solely from the redesign, modification,
alteration, or other such treatment or change.and not from any act or omission by this defendant.
Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be,
and was the direct and proximate cause of the injuries and damages, if any, that plaintiff
allegedly suffered.
SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that if there is any negligence or liability of any
of the parties named herein, it is the sole-and exclusive negligence and liability of the other
defendants, and not of this answering defendant.
SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO.SAID

COMPLAINT, defendant alleges that its products were manufactured, produced, supplied, sold
and distributed in mandatory conformity with specifications promulgated by the United States
government under its war powers, as-set forth in the United States Constitution, and that any
recovery by plaintiffs on the complaint on file herein is barred in consequence of the exercise of

those sovereign powers.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSSO Om NM KR tH BR ww

EIGHTH AFFIRMATIVE DEFENSE
AS. AND FOR AN EIGHTH, SEPARATE AND.AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, defendant alleges thar the asbestos-containing products, if any, for which it may
have legal responsibility were installed, labeled, assembled, serviced, supplied, manufactured,
designed, packaged, distributed, marketed, and/or sold in accordance with contract specifications
imposed by its co-defendants, by the U.S. government, by plaintiff's employers and by third
parties yet to be identified.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the
complaint plaintiff was employed and was entitled to and did receive workers compensation
benefits from said employer. This defendant is informed and believes, and on the basis of said
information and belief alleges that, if the conditions as alleged in the plaintiff's complaint are
found to exist, the plaintiff's employer was negligent and careless in and about the matters
referred to in said complaint and that said negligence on the part of the employer proximately
caused or contributed to.the injuries and damages, if any, complained of by the plaintiff, and
further, that the plaintiff's employer assumed the risk of injury to the plaintiff, if'any there was,
in that at the time and place of the incident such conditions, if any, were open and apparent and
were fully known to the plaintiff's employer; and that by reason thereof, this defendant is entitled
to set off any compensation benefits received or to be received by the plaintiff against any
Judgment which maybe rendered in favor of the plaintiff herein.
TENTH AFFIRMATIVE DEFENSE
AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein are barred by the statutes of limitation and repose of California and any other relevant
state, including but not limited to the limitations set forth under sections 340.2 and 361 of the

Code of Civil Procedure of the State of California.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSELEVENTH AFFIRMATIVE DEFENSE
AS:AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID.COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in

bringing this action against defendant and that such delay substantially prejudiced this answering
defendant. Therefore, this action is barred by the doctrine of laches.
TWELFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein fail to state facts sufficient to constitute a cause of action against this answering
defendant pursuant to‘sections 3600, et'seq., of the California Labor Code:

THIRTEENTH AFFIRMATIVE DEFENSE

AS AND-FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer was
contributorily negligent and careless in and about the matters alleged in the complaint, and that
such negligence and carelessness was a proximate cause of any injuries and damages suffered by
plaintiff, if any there were.

FOURTEENTH AFFIRMATIVE DEFENSE

AS. AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, this.answering defendant alleges that plaintiff's employer voluntarily and

knowingly entered into and engaged in the operations, acts. and conduct alleged in said
complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts
and conduct alleged in said 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.

FIFTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO.
SAID COMPLAINT, this answering defendant alleges that the 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 prayed for herein.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSSIXTEENTH AFFIRMATIVE DEFENSE
AS: AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendanit is informed and believes and therefore alleges

that plaintiff is unable to identify the actual manufacturer-or manufacturers of the asbestos
products which allegedly caused the injury which forms the basis of the complaint herein, and
that said manufacturers were entities other than this defendant. Therefore, this defendant may
not be held liable for the injury of the plaintiff.
SEVENTEENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff and plaintiff's

employer were and are sophisticated users and knew independently or reasonably should have
known of any danger or hazard associated with the use of a product containing asbestos and of
exposure to high levels of dust of any sort.
EIGHTEENTH AFFIRMATIVE DEFENSE
AS AND-FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO.

SAID COMPLAINT, this answering defendant alleges that at all times alleged in the complaint
the products alleged to have caused plaintiff's injuries were designed, manufactured, sold,
distributed, labeled and advertised in compliance with the then existing state of the art in the
industry to which this defendant belonged and furthermore, that the benefits of any such product
design outweighed any risk of danger in the design-and that any such product met the safety
expectations of plaintiff and the general-public.

NINETEENTH AFFIRMATIVE DEFENSE

AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or
otherwise compromised his claims herein, and accordingly, said claims are barred by operation
of law, alternatively, plaintiff has accepted compensation as partial settlement of those claims for

which this defendant is entitled to a set-off.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSCo Oo NN

TWENTIETH AFFIRMATIVE DEFENSE
AS.AND FOR A-TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, there was no negligence, gross negligence, willful, wanton, or malicious
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
(actual, legal, or otherwise) on the part of this defendant as to the plaintiff herein.
TWENTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to
make reasonable efforts to mitigate injuries and damages, if any.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS. AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
TO.SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this

defendant, by notification or otherwise, of any breach of’ express and/or implied warranties;
consequently, his claims of breach of express and/or implied warranties against this defendant
are barred,
IWENTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO

SAID COMPLAINT, the injuries to, and damages of plaintiff, if any; were directly caused by the
conduct of JOUNS-MANVILLE SALES CORPORATION, its predecessors and successors in
interest, its parent, company or companies, its affiliates, subsidiaries, or related companies and
enterprises.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE

TO SAID COMPLAINT, this answering defendant alleges that to the extent the amount of
punitive. damages sought is unconstitutionally excessive under the United States Constitution, it
violates the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VIII, and the

Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XIV, section 1.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSoO NN Rh HD De

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TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the plaintiff’s-claim for punitive damages
impermissibly secks.a multiple award of punitive damages as against this defendant in violation
of the following clauses: the Contracts Clause of Article I, section 10 of the United States
Constitution; the Excessive Fines Clause of the Highth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and Due Process provision of the Fifth and Fourteenth Ameridments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection. of

the laws and defendant's right to be free of Cruel-and Unusual Punishment and Excessive Fines

as guaranteed. under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article I, section.7 and 17, Article IV, section 16 of the California Constitution.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS.AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND.

DEFENSE, this answering defendant alleges that punitive damages are barred by the
Constitutions of the United States and California by virtue of their violation of one or more of
the following clauses: the Contracts Clause of Article J, section 10 of the United States
Constitution; the Excessive Fines Clause of the. Eighth Amendment of the United States
Constitution; the Due Process.Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and due process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to be free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article |, section 7 and 17, and Article IV, section 16 of the California

Constitution.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSoO C6 BM DO Ow BR ON om

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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A. TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that the subject premises was.not used in the
manner in which it was intended to be used, and as a proximate result of such abuse.and ‘misuse,
the plaintiff sustained the injuries and damages complained of, if any there were.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this. answering defendant alleges that plaintiff has failed to join.a party or the parties
necessary for a just adjudication of this matter and has further omitted to state any.reasons for
such failure.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that plaintiff's claims are a nullity for failure of
commencement of suit,

THIRTIETH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTIETH, SEPARATE. AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff failed to exercise ordinary care for his
own safety and well-being, and that failure to exercise ordinary care proximately and directly
caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently,
this defendant is entitled to the full protection afforded by law.

THIRTY-FIRST AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND

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

DEFENSE, this answering defendant alleges that while specifically and vigorously denying the

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSallegations of the plaintiff‘concerning liability, injuries and damages, to the extent that plaintiff
may beable to prove those allegations, this defendant states that they were the result of
intervening acts of superseding negligence on the part of the person or persons over whom this
defendant had neither control nor the right of control.
THIRTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that at all times and places mentioned in-the
complaint, plaintiff and/or other persoris used this answering defendant's products, if indeed any
were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a
purpose for which the produets were not intended, manufactured or designed. Plaintif?’s injuries.
and damages, if any, were therefore direotly and proximately caused by his misuse and abuse of
such products.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FOURTH, SEPARATE.AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's
product or products, which exposure is vigorously denied, was so minimal as to be insufficient to
establish a reasonable degree of probability that the product or products caused his claimed
injuries.and illness.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at the time of this filing, there was'no good

ground to support the complaint as to this defendant. There.is now no good ground to support
the complaint as to this defendant.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this. answering defendant alleges that plaintiff has waived. any and all claims sought

in this action and is estopped both to assert and to recover upon such claims.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTUIRTY-SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-SEVENTH, SEPARATE AND. DISTINCT ANSWER AND.

DEFENSE, this answering defendant alleges that the doctrine of joint and several lability has
been abolished in a case such as this, and should plaintiff prevail against this defendant, this
defendant's liability is several and is limited to its own actionable segment of fault, which fault is
vigorously denied.
THIRTY -BIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted, or, if relief be granted, this defendant's
Constitutional right to substantive and procedural due process of law would be contravened.
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that the causes of actions asserted by the plainuif
fail to state a claim.upon which relief can be granted, for if relief be granted, such relief would
constitute a.taking of this defendant's property for a public use, without just compensation, a
violation of this defendant's Constitutional rights,

FORTIETH AFFIRMATIVE DEFENSE
AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which telief can be: granted. because such relief would constitute a denial by
this court of defendant's Constitutional right to equal protection under the law.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS AND-FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that the causes.of action asserted by plaintiff
against this.entity is improper as plaintiff incorrectly alleges that this answering. defendant is
responsible, in whole or in part, for the acts of one or more alternative entities. This answering

defendant denies those claims.OM NM A MH BR BR Be

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FORTY-SECOND AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that plaintiff's claim of successor liability.and
association with other entities is not factually or legally supported, and, as such, plaintiff has no
claim against answering defendant as asserted,
FORTY-THIRD AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that it is not responsible for the productfine or
items which plaintiff claims that it manufactured, distributed or sold. Rather, this answering
defendant asserts that another entity manufactured, distributed and sold this product line-and is
legally responsible therefor.
FORTY-FOURTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-FOURTH, SEPARATE AND DISTINCT ANSWER. AND

DEFENSE, this answering defendant alleges that to the extent any claim for relief in the
complaint, or amended complaint, secks to recover damages against this defendant for alleged
acts or omissions of predecessors or successors-in-interest to this defendant of any kind.or
description, said defendant asserts that it is not legally responsible and cannot legally be held
liable for any such acts or omissions. This defendant further asserts that it cannot be held liable
for puntitive damages and/or exemplary damages which are or may be attributable to the conduct
of any predecessor or successor-in-interest. Further, this defendant asserts that the conduct of
any predecessor or successor-in-interest cannot, as a.matter of law, provide a legal basis for
liability or the imposition of damages against this defendant.

FORTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-FIFTH, SEPARATE-AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the product(s) or equipment which may have
been manufactured. or distributed by this answering defendant were manufactured and/or
disiributed in accordance with specifications. and requirements supplied 1o this defendant by

individuals or entities including, but not limited to, the United States of America. ‘The alleged

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSDP 2 Oo WD we BR BW Dm

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defect, if any, in said products was therefore caused by the mandatory specifications and
requirements, and the alleged defect was neither known to nor-discoverable by this defendant
with the exercise of reasonable care.
FORTY-SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that plaintiff's recovery against this answering
defendant.is barred, diminished or reduced in that the product(s) or equipment, if'any, utilized by
plaintiff was altered or changed from the original condition of said product(s) or equipment at
the time it left the possession and control of this defendant.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
AS. AND-FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that California is not proper forum in which to
litigate this matter pursuant to California Code of Civil Procedure section 410.30 and applicable
case law.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR A FORTY-EIGHTH SEPARATE AND DISTINCT DEFENSE TO. SAID
UNVERIFIED COMPLAINT, this answering defendant alleges that plaintiff was a sophisticated

user of any products that caused him injury, meaning that this answering defendant can have no
lability pursuant to. Johnson-y, American Standard, Inc, (2008) 43 Cal 4th 56.
EFORTY-NINTH AFFIRMATIVE DEFENSE
AS AND FOR:A FORTY-NINTH SEPARATE AND DISTINCT. DEFENSE, TO SAID
UNVERIFIED COMPLAINT, this answering defendant alleges that plaintiffs employer(s)

was/were sophisticated users of any-products that caused him injury, meaning that this. answering
defendant can have no liability pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal 4th
56.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSssanssoivet

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WHEREFORE, this answering defendant prays that plaintiff takes nothing by his actions,
that this answering defendant be dismissed with costs of suit incurred herein, and for such other

and further relief as this court deems-just and proper.

Dated: Spetember _/ , 2010 GORDON &:REES LLP

ony
By: a8 Jay F-
Michael J."Pietrykowski
Attorneys for Defendant
HENSEL PHELPS CONSTRUCTION
co.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSHsa0ssasy.s

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Re:  Lavrance Hagen v. Associated Insulation of California., et al,
San. Francisco County Superior Court Case No. CGC-10-275582

1, Silvia Escobar, declare: that.1 am, and wasat the time of service of the
documents herein referred to, over the age of 18 years, and not a party to the action; and 1
am employed in the County of San Francisco, California. My business address is Gordon
& Rees LLP, Embarcadero Center West, 275 Battery Street, 20th Floor, San Francisco,
California 94111,

On the date executed below, I electronically served the document(s) via LexisNexis File
& Serve described as:

Answer To. Complaint For Personal Injury ~Asbestes

on the recipients designated on the Transaction Receipt located.on.the LexisNexis
File & Serve website, I declare under penalty of perjury pursuant to the laws of the

State of California that the foregoing is true and correct and was executed on

q
September | ;

2010 at San Francisco, California.
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Silvia Esfobary case assistant to Michael J. Pietrykowski.