Preview
1 | MICHAEL T. MCCALL, State Bar No. 109580
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ELECTRONICALLY
2 || 601 Montgomery Street, Ninth Floor FILED
San Francisco, California 94111-2612 Superior Court of Californie
3] Telephone: (415) 781-7072 —
Facsimile: (415) 391-6258 County of San Francisco
4 . JUN 01 2007
Attorneys for Defendant GORDON PARK-LI, Clerk
5 | QUINTEC INDUSTRIES, INC. BY: ANNIE PASCUAL
Deputy Clemk
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 CITY AND COUNTY OF SAN FRANCISCO
10 (UNLIMITED JURISDICTION)
11 | SHARON GALLANT, Individually and as Case No. CGC-06-459167
Successor-In-Interest to ROGER GALLANT,
12 | Decedent, KIMBERLY STEWART, LISA
WHITE, ROGER GALLANT, JR. and DOES 1 -
13 || 10, inclusive,
ANSWER OF DEFENDANT QUINTEC
INDUSTRIES, INC, TO PLAINTIFFS'
COMPLAINT FOR DAMAGES
)
)
)
)
)
:
(ASBESTOS)
)
)
)
)
)
14 Plaintiffs, (WRONGFUL DEATH)
15 VS.
16 | AMERICAN ASBESTOS COMPANY, etc.; et
al.,
17
Defendants.
Wf)
19 Defendant QUINTEC INDUSTRIES, INC. (hereafter "Defendant"), 1n answering the
20 | Plaintiffs’ unverified complaint for itself alone, and severing itself from all others, admits, denies
21 | and alleges as follows:
22 1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies,
23 || both generally and specifically, each, every and all allegations of each and every purported cause of
24 || action or count of Plaintiffs' complaint, denying specifically that Plaintiffs have been, are, or will
25 | be injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and
26 || further denying that Defendant was negligent in any manner, that the alleged product or products
27 || were defective in any way, or that the alleged defect or defects were the proximate cause of the
28 | injuries and damages alleged by Plaintiffs in their complaint.
Walswarth, -l|-
anki QUINTEC INDUSTRIES, INC'S ANSWER TO) PLAINTIFFS’ COMPLAINT
McCall, LLP
ATTORNEYS ATLAY
131 200706011845240058.doe
1524-9.6383DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH EACH
DEFENSE WERE PLEADED SEPARATELY TO EACH AND EVERY CAUSE OF ACTION:
FIRST AFFIRMATIVE DEFENSE
2. The complaint and each and every purported cause of action or count thereof fails to
state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
juries and
3. Defendant is informed and believes and thereon alleges that the acts, i
damages alleged in the complaint occurred and were proximately caused by either the sole
negligence or fault of Plaintiffs! decedent, which sole negligence or fault bars Plaintiffs’ recovery,
or was contributed to by the decedent's negligence or fault. Plaintiffs’ recovery, if any, should be
reduced by an amount proportionate to the amount by which the decedent's negligence or fault
contributed to the happening of the alleged incident and/or alleged injury
THIRD AFFIRMATIVE DEFENSE
4. Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiffs’
damages, if any. The negligence, carelessness and other acts or omissions of the other Defendants
in this lawsuit and other persons and entities not parties to this lawsuit account for one hundred
percent (100%) of the causal or contributing factors relating to Plaintiffs’ damages, if any, and/or
constitute supervening and/or intervening causes of Plaintiffs’ damages, if any
FOURTH AFFIRMATIVE DEFENSE
5, Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiffs! complaint occurred and were proximately caused by either the sole
negligence of Plaintiffs’ decedent's employers other than Defendant, or co-employees, which sole
negligence bars Plaintiffs’ recovery, or were contributed to by the negligence of the decedent's
employers other than Defendant, or decedent's co-employees. Plaintiffs’ recovery, if any, must be
2.
‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFES COMPLAINT
131 200706011845240058.doo
1524.9.6383reduced by an amount proportionate to the amount by which the negligence of the decedent's
employers other than Defendant, and/or the negligence of the decedent's co-employees contributed
to the happening of the alleged accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE
6. While at all times denying any liability whatsoever to Plaintiffs, any alleged liability
or responsibility of Defendant is small in proportion to the alleged liability and responsibility of
other persons or entities, including other persons and entities who are parties herein, and Plaintiff's
should be limited to seeking recovery from Defendant for the proportion in which Defendant is
allegedly liable or responsible, all such alleged liability and responsibility being expressly denied
SIXTH AFFIRMATIVE DEFENSE
7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintifis' decedent was acting within the course and scope
of employment, and was entitled to receive, did receive, and will continue to receive workers’
compensation benefits. The decedent's employers other than Defendant failed to provide the
decedent with a safe place in which to work, and these employers’ negligence, carelessness and
other acts and omissions proximately caused the injuries and damages claimed. ‘Therefore, these
employers and their workers’ compensation carriers are barred from any recovery by lien or
otherwise herein, and Defendant is entitled to set off any such benefits Plaintiffs and/or the
decedent have received against any judgment rendered in favor of Plaintiffs.
SEVENTH AFFIRMATIVE DEFENSE
8, Defendant is informed and believes and thereon alleges that Plaintiffs! decedent
knew of the risk and dangers inherent to his conduct, and with full knowledge of those risks and
dangers, and with an appreciation for the magnitude of the risks and dangers, did voluntarily
assume the risk and injuries and damages, if any, sustained thereby. The decedent's assumption of
risk bars or proportionately reduces any recovery by Plaintiffs.
EIGHTH AFFIRMATIVE DEFENSE
9. Defendant is informed and believes and thereon alleges that Plaintiff’ have failed to
make reasonable efforts to mitigate their damages, if any.
3.
‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT
131 200706011845240058.doo
1524.9.6383NINTH AFFIRMATIVE DEFENSE
10. The complaint and each and every cause of action are barred by the applicable
statute of limitations including, but not limited to, Code of il Procedure Sections 335.1, 338,
339 and 343.
NTH AFFIRMATIVE DEFENSE
11. Plaintiff’ action is barred by the provisions of Labor Code Section 3600, et seq,
ELEVENTH AFFIRMATIVE DEFENSE
12. Defendant is informed and believes and thereon alleges that Plaintifi’s have waived
and are estopped from asserting any claim against Defendant by reason of the decedent's approval
and consent to the risk of the matters causing the damages, if any, and decedent's acknowledgment
of, acquiescence in and consent to the alleged acts or omissions, if any, of Defendant
TWELFTH AFFIRMATIVE DEFENSE
13. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of
this action and thereby prejudiced the rights of Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
14. Defendant alleges that Defendant distributed and/or marketed product(s) in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiffs are barred as a consequence.
FOURTEENTH AFFIRMATIVE DEFENSE
13. Defendant alleges that Plaintiff’ are barred from asserting any claim based on
breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties
alleged in Plaintiffs’ complaint in the event such alleged warranties are proved at trial
FIFTEENTH AFFIRMATIVE DEFENSE
have waived whatever rights they might otherwise
16. Defendant alleges that Plainti
have had for breach of warranty in that Plaintiffs and/or Plaintiffs’ decedent failed to notify
Defendant of any alleged breach of warranty, express or implied, and/or of alleged defecis in any
products distributed or marketed by Defendant within any reasonable time after they discovered
and/or should have discovered any defect or nonconformity, if any existed, thereby prejudicing
4.
‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFFS COMPLAINT
131 200706011845240058.doo
1524.9.6383Defendant from being able to fully investigate and defend the allegations contained in Plaintifis'
complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that Plaintiffs are now estopped from claiming that any products
distributed or marketed by Defendant were in any way defective or failed to conform to any alleged
warranties in that Plaintiffs and/or the decedent failed to notify Defendant of any defect or any
nonconformity in those products within a reasonable time after they discovered, or should have
discovered, any defect or nonconformity, if any existed.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. Defendant alleges that Plaintiffs and/or the decedent were not in privity of contract
with Defendant, and that such lack of privity bars recovery herein upon any theory of warranty
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Defendant is informed and believes and thereon alleges that any injuries or damages
alleged by Plaintiffs, the existence thereof being expressly denied, are the direct and proximate
result of the decedent's particular, idiosyncratic, peculiar or unforeseeable susceptibility to the
alleged product(s) distributed or marketed by Defendant, which reaction was not the result of any
conduct or omission of Defendant, nor the result of any defect in any product distributed or
marketed by Defendant.
NINETEENTH AFFIRMATIVE DEFENSE
20. Defendant alleges that if Plaintiffs’ decedent was injured by any product distributed
or marketed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs or the
decedent and is not liable for those injuries or for any claimed damages as the product(s) when
distributed or marketed conformed to the then current state-of-the-art specifications and because
the then current state-of-the-art medical, scientific and industrial knowledge, art and practice were
such that Defendant did not and could not know that the product(s) might pose a risk of harm in
normal and foreseeable use.
Wh
fig
“Se
‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINT
131 200706011845240058.doo
1524.9.6383TWENTIETH AFFIRMATIVE DEFENSE
21. Defendant alleges that Plaintiffs and/or the decedent did not reasonably rely on any
act, omission or representation of Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. In the event Plaintiff’ are entitled to non-economic damages including, but not
limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium and/or injury to reputation and humiliation, Defendant shall be
liable only for the amount of non-economic damages allocated to Defendant's percentage of fault,
and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
Code §1431.2.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Defendant denies any and all liability to the extent that Plaintiffs may assert
Defendants alleged liability as a successor, successor in business, successor in product line or a
portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a
portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
‘owner or member in an entity in which there has been research, study, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising of a certain substance, the generic name of
which is asbestos
TWENTY-THIRD AFFIRMATIVE DEFENSE
24, Defendant alleges that Plaintiffs herein lack legal capacity and standing to sue; are
not real parties in interest or persons with superior right to make the claims contained in this
complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent
they lack standing or proper appointment to bring the claims they are asserting, any action taken in
this matter with regard to their claim(s) is voidable. Defendant further contends that any
declaration filed by any person asserting a survival claim contains expert opinions and conclusions
that are not supported and that the declarant is not qualified to make
6.
‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT
131 200706011845240058.doo
1524.9.6383TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Defendant alleges that Plaintiffs' complaint and each and every cause of action fail
to state facts sufficient to constitute a cause or causes of action for punitive damages against
Defendant.
TWENTY-FIFTH AFFIRMATIVE DEFENSE,
26. Defendant is informed and believes and thereon alleges that Plaintiffs! decedent
and/or other persons, without Defendant's knowledge and/or approval, redesigned, modified,
altered and used products distributed or marketed by Defendant contrary to instructions, warnings
and the customs and practice of the industry so as to substantially change the character of these
products. Defendant further alleges that if the products distributed or marketed by Defendant were
defective in any way, which defectiveness is specifically denied, such defectiveness resulted solely
from the redesign, modification, alteration, use and/or other changes therein and not from any act
or omission of Defendant, Therefore, the defect, if any, so created by the decedent and/or other
persons or parties, as the case may be, was the sole and proximate cause of the injuries and/or
damages, if any, allegedly sustained
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiffs! complaint were solely and proximately caused by the decedent's
misuse of the product(s). Defendant could not have reasonably foreseen this misuse, and the
decedent's misuse, therefore, bars recovery against Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. Defendant is informed and believes and thereon alleges that if Plaintiffs’ decedent
was injured by any product(s) distributed or marketed by Defendant, such product(s) were intended
and sold in bulk to a knowledgeable and sophisticated user over whom Defendant had no control
and who was fully informed as to risks and dangers, if any, associated with those products and the
precautions, if any, required to avoid those risks and dangers, if any
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
29. Defendant is informed and believes and thereon alleges that if the decedent was
-7-
‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFIN COMPLAINT
131 200706011845240058.doo
1524.9.6383injured by any product(s) distributed or marketed by Defendant, that the products were
accompanied by good and sufficient labeling when they left the custody, possession and control of
Defendant which gave conspicuous, reasonable and adequate warnings and directions to the users
of the products conceming the purpose for which, and manner in which, such products were to be
used and concerning the risks and dangers, if any, attendant to said use. Defendant alleges that as a
result of those wamings and directions, Defendant fulfilled whatever duty, if any, that is owed to
Plaintiff's and/or the decedent. If the decedent was injured by any such product, such injuries were
proximately caused by the use of the product(s) in disregard of the warnings and directions which
was not reasonably foreseeable to Defendant
TWENTY-NINTH AFFIRMATIVE DEFENSE
30. Defendant alleges that insofar as the instant complaint is an attempt to recover
punitive or exemplary damages from Defendant, it violates the following United States
Constitutional and California State Constitutional principles
a. Excessive fines clause of the United States Constitution, Eighth Amendment
and Fourteenth Amendment;
b. The contract clause, Article I, Section 10, clause |, and the Fourteenth
Amendment of the United States Constitution;
« The due process clause of the United States Constitution, Fourteenth
Amendment:
d. The equal protection clause of the United States Constitution;
e. _The California Constitution due process and equal protection clauses, Article
1, Section 7(a);
f. The California Constitution excessive fines clause, Article 1,
Section 17,
WHEREFORE, Defendant QUINTEC INDUSTRIES, INC. prays for judgment as follows
1 That Plaintiffs take nothing from Defendant by virtue of the complaint herein;
2. That Defendant be awarded costs of suit and attomeys' fees herein; and
3. That Defendant be granted such other and further relief as the Court may deem just
and proper
fig
“8.
‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT
131 200706011845240058.doo
1524.9.6383Dated: June 1, 2007
Respectfully submitted,
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
By: /S/MICHAEL T. MCCALL
MICHAEL T. MCCALL
‘Attomeys for Defendant
QUINTEC INDUSTRIES, INC.
9.
131 200706011845240058.doo
1524.9.6383
‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINTPROOF OF SERVICE
Tam employed in the County of San Francisco, State of California, Tam over the age of 18
and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612
On June 1, 2007, | served the within document(s) described as:
ANSWER OF DEFENDANT QUINTEC INDUSTRIES, INC TO PLAINTIFFS'
COMPLAINT FOR DAMAGES (WRONGFUL DEATH)
on the interested parties in this action as stated below
KELLER, FISHBACK & JACKSON LLP
28720 Roadside Drive
Suite 201
Agoura Hills, CA 91301
X] (BY ELECTRONIC MAIL) I provided the document(s) listed above electronically to the
Lexis Nexis website pursuant (o their instructions on that website. Tf the document is
provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to Lexis Nexis,
Executed on June 1, 2007, at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct,
Deanna Walker /S/ DEANNA WALKER
(Type or print name) (Signature)
‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINT
131 200706011845240058.doo
1524.9.6383
Preview
1 | MICHAEL T. MCCALL, State Bar No. 109580 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ELECTRONICALLY 2 || 601 Montgomery Street, Ninth Floor FILED San Francisco, California 94111-2612 Superior Court of Californie 3] Telephone: (415) 781-7072 — Facsimile: (415) 391-6258 County of San Francisco 4 . JUN 01 2007 Attorneys for Defendant GORDON PARK-LI, Clerk 5 | QUINTEC INDUSTRIES, INC. BY: ANNIE PASCUAL Deputy Clemk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 CITY AND COUNTY OF SAN FRANCISCO 10 (UNLIMITED JURISDICTION) 11 | SHARON GALLANT, Individually and as Case No. CGC-06-459167 Successor-In-Interest to ROGER GALLANT, 12 | Decedent, KIMBERLY STEWART, LISA WHITE, ROGER GALLANT, JR. and DOES 1 - 13 || 10, inclusive, ANSWER OF DEFENDANT QUINTEC INDUSTRIES, INC, TO PLAINTIFFS' COMPLAINT FOR DAMAGES ) ) ) ) ) : (ASBESTOS) ) ) ) ) ) 14 Plaintiffs, (WRONGFUL DEATH) 15 VS. 16 | AMERICAN ASBESTOS COMPANY, etc.; et al., 17 Defendants. Wf) 19 Defendant QUINTEC INDUSTRIES, INC. (hereafter "Defendant"), 1n answering the 20 | Plaintiffs’ unverified complaint for itself alone, and severing itself from all others, admits, denies 21 | and alleges as follows: 22 1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies, 23 || both generally and specifically, each, every and all allegations of each and every purported cause of 24 || action or count of Plaintiffs' complaint, denying specifically that Plaintiffs have been, are, or will 25 | be injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and 26 || further denying that Defendant was negligent in any manner, that the alleged product or products 27 || were defective in any way, or that the alleged defect or defects were the proximate cause of the 28 | injuries and damages alleged by Plaintiffs in their complaint. Walswarth, -l|- anki QUINTEC INDUSTRIES, INC'S ANSWER TO) PLAINTIFFS’ COMPLAINT McCall, LLP ATTORNEYS ATLAY 131 200706011845240058.doe 1524-9.6383DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH EACH DEFENSE WERE PLEADED SEPARATELY TO EACH AND EVERY CAUSE OF ACTION: FIRST AFFIRMATIVE DEFENSE 2. The complaint and each and every purported cause of action or count thereof fails to state facts sufficient to constitute a cause or causes of action against Defendant. SECOND AFFIRMATIVE DEFENSE juries and 3. Defendant is informed and believes and thereon alleges that the acts, i damages alleged in the complaint occurred and were proximately caused by either the sole negligence or fault of Plaintiffs! decedent, which sole negligence or fault bars Plaintiffs’ recovery, or was contributed to by the decedent's negligence or fault. Plaintiffs’ recovery, if any, should be reduced by an amount proportionate to the amount by which the decedent's negligence or fault contributed to the happening of the alleged incident and/or alleged injury THIRD AFFIRMATIVE DEFENSE 4. Defendant is informed and believes and thereon alleges that the negligence, carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiffs’ damages, if any. The negligence, carelessness and other acts or omissions of the other Defendants in this lawsuit and other persons and entities not parties to this lawsuit account for one hundred percent (100%) of the causal or contributing factors relating to Plaintiffs’ damages, if any, and/or constitute supervening and/or intervening causes of Plaintiffs’ damages, if any FOURTH AFFIRMATIVE DEFENSE 5, Defendant is informed and believes and thereon alleges that the accident, injury and damages alleged in Plaintiffs! complaint occurred and were proximately caused by either the sole negligence of Plaintiffs’ decedent's employers other than Defendant, or co-employees, which sole negligence bars Plaintiffs’ recovery, or were contributed to by the negligence of the decedent's employers other than Defendant, or decedent's co-employees. Plaintiffs’ recovery, if any, must be 2. ‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFES COMPLAINT 131 200706011845240058.doo 1524.9.6383reduced by an amount proportionate to the amount by which the negligence of the decedent's employers other than Defendant, and/or the negligence of the decedent's co-employees contributed to the happening of the alleged accident and the alleged injuries. FIFTH AFFIRMATIVE DEFENSE 6. While at all times denying any liability whatsoever to Plaintiffs, any alleged liability or responsibility of Defendant is small in proportion to the alleged liability and responsibility of other persons or entities, including other persons and entities who are parties herein, and Plaintiff's should be limited to seeking recovery from Defendant for the proportion in which Defendant is allegedly liable or responsible, all such alleged liability and responsibility being expressly denied SIXTH AFFIRMATIVE DEFENSE 7. Defendant is informed and believes and thereon alleges that at the time the alleged operations, acts and conduct occurred, Plaintifis' decedent was acting within the course and scope of employment, and was entitled to receive, did receive, and will continue to receive workers’ compensation benefits. The decedent's employers other than Defendant failed to provide the decedent with a safe place in which to work, and these employers’ negligence, carelessness and other acts and omissions proximately caused the injuries and damages claimed. ‘Therefore, these employers and their workers’ compensation carriers are barred from any recovery by lien or otherwise herein, and Defendant is entitled to set off any such benefits Plaintiffs and/or the decedent have received against any judgment rendered in favor of Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE 8, Defendant is informed and believes and thereon alleges that Plaintiffs! decedent knew of the risk and dangers inherent to his conduct, and with full knowledge of those risks and dangers, and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risk and injuries and damages, if any, sustained thereby. The decedent's assumption of risk bars or proportionately reduces any recovery by Plaintiffs. EIGHTH AFFIRMATIVE DEFENSE 9. Defendant is informed and believes and thereon alleges that Plaintiff’ have failed to make reasonable efforts to mitigate their damages, if any. 3. ‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT 131 200706011845240058.doo 1524.9.6383NINTH AFFIRMATIVE DEFENSE 10. The complaint and each and every cause of action are barred by the applicable statute of limitations including, but not limited to, Code of il Procedure Sections 335.1, 338, 339 and 343. NTH AFFIRMATIVE DEFENSE 11. Plaintiff’ action is barred by the provisions of Labor Code Section 3600, et seq, ELEVENTH AFFIRMATIVE DEFENSE 12. Defendant is informed and believes and thereon alleges that Plaintifi’s have waived and are estopped from asserting any claim against Defendant by reason of the decedent's approval and consent to the risk of the matters causing the damages, if any, and decedent's acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if any, of Defendant TWELFTH AFFIRMATIVE DEFENSE 13. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of this action and thereby prejudiced the rights of Defendant. THIRTEENTH AFFIRMATIVE DEFENSE 14. Defendant alleges that Defendant distributed and/or marketed product(s) in full compliance with regulations and/or specifications promulgated by the United States Government and any recovery by Plaintiffs are barred as a consequence. FOURTEENTH AFFIRMATIVE DEFENSE 13. Defendant alleges that Plaintiff’ are barred from asserting any claim based on breach of warranty against Defendant by reason of failure to fulfill the conditions of warranties alleged in Plaintiffs’ complaint in the event such alleged warranties are proved at trial FIFTEENTH AFFIRMATIVE DEFENSE have waived whatever rights they might otherwise 16. Defendant alleges that Plainti have had for breach of warranty in that Plaintiffs and/or Plaintiffs’ decedent failed to notify Defendant of any alleged breach of warranty, express or implied, and/or of alleged defecis in any products distributed or marketed by Defendant within any reasonable time after they discovered and/or should have discovered any defect or nonconformity, if any existed, thereby prejudicing 4. ‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFFS COMPLAINT 131 200706011845240058.doo 1524.9.6383Defendant from being able to fully investigate and defend the allegations contained in Plaintifis' complaint. SIXTEENTH AFFIRMATIVE DEFENSE 17. Defendant alleges that Plaintiffs are now estopped from claiming that any products distributed or marketed by Defendant were in any way defective or failed to conform to any alleged warranties in that Plaintiffs and/or the decedent failed to notify Defendant of any defect or any nonconformity in those products within a reasonable time after they discovered, or should have discovered, any defect or nonconformity, if any existed. SEVENTEENTH AFFIRMATIVE DEFENSE 18. Defendant alleges that Plaintiffs and/or the decedent were not in privity of contract with Defendant, and that such lack of privity bars recovery herein upon any theory of warranty EIGHTEENTH AFFIRMATIVE DEFENSE 19. Defendant is informed and believes and thereon alleges that any injuries or damages alleged by Plaintiffs, the existence thereof being expressly denied, are the direct and proximate result of the decedent's particular, idiosyncratic, peculiar or unforeseeable susceptibility to the alleged product(s) distributed or marketed by Defendant, which reaction was not the result of any conduct or omission of Defendant, nor the result of any defect in any product distributed or marketed by Defendant. NINETEENTH AFFIRMATIVE DEFENSE 20. Defendant alleges that if Plaintiffs’ decedent was injured by any product distributed or marketed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs or the decedent and is not liable for those injuries or for any claimed damages as the product(s) when distributed or marketed conformed to the then current state-of-the-art specifications and because the then current state-of-the-art medical, scientific and industrial knowledge, art and practice were such that Defendant did not and could not know that the product(s) might pose a risk of harm in normal and foreseeable use. Wh fig “Se ‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINT 131 200706011845240058.doo 1524.9.6383TWENTIETH AFFIRMATIVE DEFENSE 21. Defendant alleges that Plaintiffs and/or the decedent did not reasonably rely on any act, omission or representation of Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE 22. In the event Plaintiff’ are entitled to non-economic damages including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium and/or injury to reputation and humiliation, Defendant shall be liable only for the amount of non-economic damages allocated to Defendant's percentage of fault, and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil Code §1431.2. TWENTY-SECOND AFFIRMATIVE DEFENSE 23. Defendant denies any and all liability to the extent that Plaintiffs may assert Defendants alleged liability as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial ‘owner or member in an entity in which there has been research, study, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising of a certain substance, the generic name of which is asbestos TWENTY-THIRD AFFIRMATIVE DEFENSE 24, Defendant alleges that Plaintiffs herein lack legal capacity and standing to sue; are not real parties in interest or persons with superior right to make the claims contained in this complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent they lack standing or proper appointment to bring the claims they are asserting, any action taken in this matter with regard to their claim(s) is voidable. Defendant further contends that any declaration filed by any person asserting a survival claim contains expert opinions and conclusions that are not supported and that the declarant is not qualified to make 6. ‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT 131 200706011845240058.doo 1524.9.6383TWENTY-FOURTH AFFIRMATIVE DEFENSE 25. Defendant alleges that Plaintiffs' complaint and each and every cause of action fail to state facts sufficient to constitute a cause or causes of action for punitive damages against Defendant. TWENTY-FIFTH AFFIRMATIVE DEFENSE, 26. Defendant is informed and believes and thereon alleges that Plaintiffs! decedent and/or other persons, without Defendant's knowledge and/or approval, redesigned, modified, altered and used products distributed or marketed by Defendant contrary to instructions, warnings and the customs and practice of the industry so as to substantially change the character of these products. Defendant further alleges that if the products distributed or marketed by Defendant were defective in any way, which defectiveness is specifically denied, such defectiveness resulted solely from the redesign, modification, alteration, use and/or other changes therein and not from any act or omission of Defendant, Therefore, the defect, if any, so created by the decedent and/or other persons or parties, as the case may be, was the sole and proximate cause of the injuries and/or damages, if any, allegedly sustained TWENTY-SIXTH AFFIRMATIVE DEFENSE 27. Defendant is informed and believes and thereon alleges that the accident, injury and damages alleged in Plaintiffs! complaint were solely and proximately caused by the decedent's misuse of the product(s). Defendant could not have reasonably foreseen this misuse, and the decedent's misuse, therefore, bars recovery against Defendant. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 28. Defendant is informed and believes and thereon alleges that if Plaintiffs’ decedent was injured by any product(s) distributed or marketed by Defendant, such product(s) were intended and sold in bulk to a knowledgeable and sophisticated user over whom Defendant had no control and who was fully informed as to risks and dangers, if any, associated with those products and the precautions, if any, required to avoid those risks and dangers, if any TWENTY-EIGHTH AFFIRMATIVE DEFENSE 29. Defendant is informed and believes and thereon alleges that if the decedent was -7- ‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFIN COMPLAINT 131 200706011845240058.doo 1524.9.6383injured by any product(s) distributed or marketed by Defendant, that the products were accompanied by good and sufficient labeling when they left the custody, possession and control of Defendant which gave conspicuous, reasonable and adequate warnings and directions to the users of the products conceming the purpose for which, and manner in which, such products were to be used and concerning the risks and dangers, if any, attendant to said use. Defendant alleges that as a result of those wamings and directions, Defendant fulfilled whatever duty, if any, that is owed to Plaintiff's and/or the decedent. If the decedent was injured by any such product, such injuries were proximately caused by the use of the product(s) in disregard of the warnings and directions which was not reasonably foreseeable to Defendant TWENTY-NINTH AFFIRMATIVE DEFENSE 30. Defendant alleges that insofar as the instant complaint is an attempt to recover punitive or exemplary damages from Defendant, it violates the following United States Constitutional and California State Constitutional principles a. Excessive fines clause of the United States Constitution, Eighth Amendment and Fourteenth Amendment; b. The contract clause, Article I, Section 10, clause |, and the Fourteenth Amendment of the United States Constitution; « The due process clause of the United States Constitution, Fourteenth Amendment: d. The equal protection clause of the United States Constitution; e. _The California Constitution due process and equal protection clauses, Article 1, Section 7(a); f. The California Constitution excessive fines clause, Article 1, Section 17, WHEREFORE, Defendant QUINTEC INDUSTRIES, INC. prays for judgment as follows 1 That Plaintiffs take nothing from Defendant by virtue of the complaint herein; 2. That Defendant be awarded costs of suit and attomeys' fees herein; and 3. That Defendant be granted such other and further relief as the Court may deem just and proper fig “8. ‘QUINTEG INDUSTRI, NGS ANSWER TO PLAINTIFEN COMPLAINT 131 200706011845240058.doo 1524.9.6383Dated: June 1, 2007 Respectfully submitted, WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP By: /S/MICHAEL T. MCCALL MICHAEL T. MCCALL ‘Attomeys for Defendant QUINTEC INDUSTRIES, INC. 9. 131 200706011845240058.doo 1524.9.6383 ‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINTPROOF OF SERVICE Tam employed in the County of San Francisco, State of California, Tam over the age of 18 and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor, San Francisco, California 94111-2612 On June 1, 2007, | served the within document(s) described as: ANSWER OF DEFENDANT QUINTEC INDUSTRIES, INC TO PLAINTIFFS' COMPLAINT FOR DAMAGES (WRONGFUL DEATH) on the interested parties in this action as stated below KELLER, FISHBACK & JACKSON LLP 28720 Roadside Drive Suite 201 Agoura Hills, CA 91301 X] (BY ELECTRONIC MAIL) I provided the document(s) listed above electronically to the Lexis Nexis website pursuant (o their instructions on that website. Tf the document is provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed served on the date that it was provided to Lexis Nexis, Executed on June 1, 2007, at San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Deanna Walker /S/ DEANNA WALKER (Type or print name) (Signature) ‘QUINTEG INDUSTRIFS, NGS ANSWER TO PLAINTIFEN COMPLAINT 131 200706011845240058.doo 1524.9.6383