Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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San Francisco Superior Courts
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Case Number: CGC-01-402113
Filing Date: Jun-15-2004 2:37
Juke Box: 001 Image: 00981795
ANSWER

JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

001000981795

Instructions:
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Robert J. Lyman, State Bar No. 085240

Walter C. Rundin, State Bar No. 072475

Rohit A. Sabnis, State Bar No. 221465

BURNHAM | BROWN

A Professional Corporation

P.O. Box 119 oo

Oakland, California 94604
Puppet cler
. Aen

1901 Harrison Street, 11th Floor
Oakland, California 94612
Telephone: (510) 444-6800
Facsimile: (510) 835-6666

Attorneys for Defendant
BORGWARNER INC., formerly known as
BORG-WARNER AUTOMOTIVE, INC.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
JAMES JORDAN and No. 402113
SHERYL LYNN JORDAN,
DEFENDANT BORGWARNER INC.,
Plaintiffs, FORMERLY KNOWN AS BORG-
WARNER AUTOMOTIVE, INC.’S
v. ANSWER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT FOR
ASBESTOS DEFENDANTS (BHC) as PERSONAL INJURY, LOSS OF
reflected on Exhibits B, B-1, C, F, and H; CONSORTIUM (ASBESTOS)

and DOES 1-800,

Defendants.
Complaint Filed: December 6, 2001
1st Am. Compl. Filed: April 16, 2004

Defendant BORGWARNER INC., formerly known as BORG-WARNER
AUTOMOTIVE, INC. (“Defendant”), in answer to Plaintiffs’ first amended complaint, denies
generally and specifically, each and every, all and singular, the allegations of said first amended
complaint, and each cause of action thereof, and further denies that Plaintiffs J AMES JORDAN
and SHERYL LYNN JORDAN (“Plaintiffs”) have been damaged in any sum or sums at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:
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DEF. BORGWARNER INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED NO. 402113
COMPLAINT FOR PERSONAL INJURY, LOSS OF CONSORTIUM (ASBESTOS)conn nun kw YN

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AFFIRMATIVE DEFENSES

1. As a first affirmative defense to each cause of action, the first amended complaint
does not state facts sufficient to constitute a cause of action against this Defendant.

2. Asa second affirmative defense, each cause of action is barred by the applicable
statute of limitations, including but not limited to, California Code of Civil Procedure
sections 340.2 and 361.

3. Asa third affirmative defense to each cause of action, Plaintiffs failed to mitigate
or make reasonable efforts to mitigate their damages, if any, as required by law.

4. Asa fourth affirmative defense to each cause of action, the damages sustained by
Plaintiffs, if any, were caused, in whole or in part, by the negligence, strict liability or fault of
others for which this Defendant is not liable or responsible.

5. As a fifth affirmative defense to each cause of action, Plaintiffs by their actions,
knew of and appreciated the risks involved, and voluntarily and reasonably assumed the risk of
said injuries, proximately causing or contributing to the damages alleged.

6. Asa sixth affirmative defense to each cause of action, if Plaintiffs sustained
injuries attributable to the use of any product, which allegations are expressly denied, the injuries
were caused in whole or in part by the unreasonable, unforeseeable and inappropriate purpose
and/or improper use which was made of the product.

7. As a seventh affirmative defense to each cause of action, Plaintiffs were partially,
if not wholly, negligent or otherwise at fault on their own part pursuant to the doctrine of
comparative fault, and Plaintiffs are barred from recovery of that portion of the damages directly
attributable to their proportionate share of fault.

8. As an eighth affirmative defense to each cause of action, Defendant alleges that
the products were as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

9. As a ninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including

the First, Fifth, Eighth and Fourteenth Amendments, and by the California Constitution,

2.
DEF. BORGWARNER ING.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED NO. 402113
COMPLAINT FOR PERSONAL INJURY, LOSS OF CONSORTIUM (ASBESTOS)eo md DH Fs Ww NY KF

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including Article I, and that Civil Code section 3294 is invalid on its face or as applied in this
action.

10. Asa tenth affirmative defense to each cause of action, at the time and place of the
happening of the incident alleged in the complaint, Plaintiffs were employed by various
employers, and were working within the course and scope of employment and certain sums have
been or will be paid under the applicable provisions of the Labor Code and any award made
must be reduced by the payments.

11. Asan eleventh affirmative defense to each cause of action, Defendant alleges that
the action is barred under the “primary right” doctrine on the basis that causes of action may not
be split by the doctrines of res judicata and collateral estoppel and by virtue of Plaintiffs’
prosecution and/or settlement of their claims in prior actions.

12. Asa twelfth affirmative defense to each cause of action, Defendant alleges that if
Plaintiffs worked for this answering Defendant then Plaintiffs’ claim is barred by the exclusive
remedy provisions of the appropriate state or federal law.

13. As a thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiffs were provided and/or were covered by workers’ compensation insurance by each of
their employers, and Plaintiffs, their employer and/or employers were subject to the provisions
of the Workers’ Compensation Act of the State of California. Accordingly, Plaintiffs’ actions
were barred by the doctrine articulated in Privette v. Superior Court, 5 Cal. 4th 689 (1993).

14. As a fourteenth affirmative defense to each cause of action, this Defendant
alleges that Plaintiffs assumed whatever risk or hazard, if any, that existed at the time and place
of the alleged accident set forth in Plaintiffs’ complaint, and said assumption of risk or hazard is
imputed to said Plaintiffs.

15. As a fifteenth affirmative defense to each cause of action, Plaintiffs
acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of
this Defendant, thus barring Plaintiffs’ recovery.

16.  Asasixteenth affirmative defense to each cause of action, the injuries and

damages sustained by Plaintiffs, if any, were solely and legally caused by the modification,

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DEF. BORGWARNER INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED NO. 402113
COMPLAINT FOR PERSONAL INJURY, LOSS OF CONSORTIUM (ASBESTOS)oot DAH Re Ww NY

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alteration or change of the product referred to in the complaint and said modification, alteration
or change was performed by persons or entities other than this answering Defendant and without
its knowledge or consent.

17. Asaseventeenth affirmative defense to each cause of action, Defendant presently
has insufficient knowledge or information on which to form a belief as to whether it may have
additional, as yet unstated, defenses available. Defendant reserves herein the right to assert
additional defenses in the event discovery indicates that they would be appropriate.

18. Asan eighteenth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the
extent that Plaintiffs’ injuries and damages, if any, were legally caused or contributed to by the
negligence or fault of persons or entities other than this answering Defendant.

19. As a nineteenth affirmative defense to each cause of action, the asbestos products,
if any, for which Defendant may have any legal responsibility were manufactured, packaged,
distributed, and/or sold in accordance with contract specifications imposed by Co-Defendant, by
the U.S. Government, by Plaintiffs’ employers, and/or by third parties yet to be identified.

20. Asa twentieth affirmative defense to each cause of action, Plaintiffs’ complaint,
and each cause of action therein, is barred by the doctrine of laches.

21. As a twenty-first affirmative defense to each cause of action, Plaintiffs’
employers were partially, if not wholly, negligent, or otherwise at fault on their own part
pursuant to the doctrine of comparative negligence, and Plaintiffs should be barred from
recovery of that portion of the damages directly attributable to Plaintiffs’ employers’
proportionate share of the negligence or fault. Witt v. Jackson, 57 Cal. 2d 57 (1961).

22. Asa twenty-second affirmative defense to each cause of action, Plaintiffs’
complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

23. Asa twenty-third affirmative defense to each cause of action, Plaintiffs have
failed to join all persons and parties needed for a just adjudication of this action.

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DEF. BORGWARNER INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED NO. 402113
COMPLAINT FOR PERSONAL INJURY, LOSS OF CONSORTIUM (ASBESTOS)Cory nn ks Ww NY

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24. Asa twenty-fourth affirmative defense, with respect to some or all of Plaintiffs’

alleged claims and causes of action, this Court lacks jurisdiction.

25. As atwenty-fifth affirmative defense, with respect to some or all of Plaintiffs’

alleged claims and causes of action, in the interest of substantial justice, the action should be

heard in a forum outside this state.

WHEREFORE, this answering Defendant prays for judgment as follows:

1. That Plaintiffs take nothing by reason of their first amended complaint on file herein;

2. For costs of suit incurred herein; and

3. For such other and further relief as the Court deems just and proper.

DATED: June 11, 2004 BURNHAM BROWN

LZ LZ
By. om Ze

ROHIT A. SABNIS
Attorneys for Defendant

BORGWARNER INC., formerly known as
BORG-WARNER AUTOMOTIVE, INC.

654035

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DEF. BORGWARNER INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY, LOSS OF CONSORTIUM (ASBESTOS)

NO. 402113Re: James Jordan v. Asbestos Defendants (BHC), et al.
Court: San Francisco Superior Court, Unlimited Jurisdiction

Action No: 402113

PROOF OF SERVICE BY UNITED STATES MAIL

I declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street, aie
Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office Box
119, Oakland, California 94604).

On June 11, 2004, I served the following document(s):

DEFENDANT BORGWARNER INC., FORMERLY KNOWN AS BORG-
WARNER AUTOMOTIVE, INC.'S ANSWER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY, LOSS OF
CONSORTIUM

By placing a copy thereof into envelope(s) bearing the name(s) and address(es) of the
person(s) to be served as shown below. I placed said envelope(s) for collection and
mailing at the office of Burnham Brown, 1901 Harrison Street, 11th Floor, Oakland,
California. I am familiar with the business practice for collection and processing of
correspondence for mailing with the United States Postal Service and, in the ordinary
course of business, the correspondence would be deposited with the United States Postal
Service on the day on which it is collected at the business.

BRAYTON PURCELL Attorneys for Plaintiff
222 Rush Landing Road

Novato, CA 94948-6169

Telephone: (415) 898-1555

Facsimile: (415) 898-1247

A letter notice has been served on all defendants — see attached list.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Brenda Zuniga

DATED: June 11, 2004 “RW Qo
CQ

PROOF OF SERVICE NO. 402113Re: Jordan, James v Asbestos Defendants (BHC)

Court: San Francisco Superior Court

Action No.: 402113

SERVICE LIST

ADAMS, NYE, et al.

222 Kearny Street, 7th Flr.

San Francisco, CA 94108-4521

Telephone: (415) 982-8955 Facsimile: (415) 982-2042

ARCHER NORRIS

2033 N. Main St., # 800

Walnut Creek, CA 94596

Telephone: (925) 930-6600 Facsimile: 1 (925) 930-6620

BECHERER KANNETT, et al.

2200 Powell St., # 805

Emeryville, CA 94608

Telephone: (510) 658-3600 Facsimile: (510) 658-1151

BENNETT, SAMUELSEN, et al.

1951 Webster St., # 200

Oakland, CA 94612

Telephone: (510) 444-7688 Facsimile: (510) 444-5849

BERRY & BERRY

2930 Lakeshore Ave.

P. O. Box 16070

Oakland, CA 94610

Telephone: (510) 835-8330 Facsimile: (510) 835-5117

BRAYTON PURCELL

P.O. Box 6169

NOVATO, CA 94948-6169

Telephone: (415) 898-1555 Facsimile: (415) 898-1247

COLOMBATTO, KLIMENKO & ROSSE

130 Sutter Street, 7th Floor

San Francisco, CA 94104

Telephone: (415) 391-6182 Facsimile: (415) 391-2904

DRINKER BIDDLE & REATH, LLP

1 Logan Square

18th & Cherry Streets

Philadelphia, PA 19103

Telephone: (215) 988-2700 Facsimile: (215) 988-2757

FILICE, BROWN, EASSA & MCLEOD

1999 Harrison Street, 18th Fl.

Oakland, CA 94612

Telephone: (510) 444-3131 Facsimile: (510) 839-7940

Page 1

Taylor Plumbing Supply Company

Walden, Duffy, Inc.

Dillinham Construction, N.A., Inc.

Dresser Industries, Inc./ Gatke Corp./

Halliburton Company

Designated Defense Counsel

Plaintiff James Jordan

Metalcald Insulation Corp.

Monsanto Company

Chevron Products Company/ Dow Chemical

Company/ Oakfabco, Inc./ Tosco Corp.FOX, SHJEFLO, et al.
2000 Alameda de las Pulgas
Suite 250

San Mateo, CA 94403

Telephone: (650) 341-2900 Facsimile:

FREEBURG, JUDY & NETTELS (T)
440 West First St., # 102
Tustin, CA 92780

Telephone: (626) 585-4150 Facsimile:

GLASPY & GLASPY
One Walnut Creek Center
100 Pringle Ave., #750
‘Walnut Creek, CA 94596

Telephone: (925) 947-1300 Facsimile:

GORDON & REES (SF)
275 Battery St., 20th Fl.
San Francisco, CA 94111

Telephone: (415) 986-5900 Facsimile:

GORDON-CREED, et al.
530 Jackson St., 2nd Flr.
San Francisco, CA 94133

Telephone: (415) 421-3100 Facsimile:

GRACE, GENSON, et al.
444 S. Flower St., # 1100
Los Angeles, CA 90071

Telephone: (213) 533-5400 Facsimile:

HASSARD BONNINGTON
Two Embarcadero Center, Ste. 1800
San Francisco, CA 94111-3993

Telephone: (415) 288-9800 Facsimile:

HILDEBRANDT & LUCKY
757 W. 9th St.
San Pedro, CA 90731

Telephone: (310) 548-7882 Facsimile:

IMAI, TADLOCK, KEENEY, et al.
185 Berry St., Suite 4300
San Francisco, CA 94107

Telephone: (415) 537-3930 Facsimile:

JACKSON & WALLACE (SF)
55 Francisco Street, 6th FL.
San Francisco, CA 94133

Telephone: (415) 982-6300 Facsimile:

KEESAL, YOUNG & LOGAN (SF)
Four Embarcadero Center, # 1500
San Francisco, CA 94111

Telephone: (415) 398-6000 Facsimile:

(650) 341-2258

(626) 585-0718

(925) 947-1594

(415) 986-8054

(415) 421-3150

(213) 533-5444

(415) 288-9801

(310) 548-4148

(415) 537-3938

(415) 982-6700

(415) 981-7729

Page 2

‘Thorpe Insulation Company

Zurn Industries, Inc.

Goodrich Corporation

Honetwell International, Inc./ Rosendahl Corp.

BWD Automotive Corp.

Honeywell International, Inc.

Honeywell International, Inc.

Thorpe Insulation Company

Elliott Company

The Budd Company/ Fluor Corp./ Plant
Insulation Company/ Republic Supply
Company/ Robertson-Ceco Corp./ Zum
Industries, Inc.

Lear-Siegler Diversified Holding CompanyKNOX RICKSEN LLP

2101 Webster St.., # 650

Oakland, CA 94612

Telephone: (510) 285-2500 Facsimile: (510) 285-2505

MCKENNA LONG & ALDRIDGE (SF)

Steuart Street Tower,

One Market, Suite 2700

San Francisco, CA 94105

Telephone: (415) 267-4000 Facsimile: 1 (415) 267-4198

MCNAMARA, DODGE, NEY, et al.

Attn: Asbestos Department

1211 Newell Ave., # 202

Walnut Creek, CA 94596

Telephone: (925) 939-5330 Facsimile: (925) 939-0203

MORGENSTEIN & JUBELIRER

One Market, Spear Street Tower

32nd Fl.

San Francisco, CA 94105

Telephone: (415) 901-8700 Facsimile: 1 (415) 901-8701

PRINDLE, DECKER & AMARO (LB)

310 Golden Shore, 4th Fl.

Long Beach, CA 90802

Telephone: (562) 436-3946 Facsimile: (562) 495-0564

ROPERS, MAJESKI, et al. (SF)

333 Market St., Suite 3150

San Francisco, CA 94105

Telephone: (415) 543-4800 Facsimile: (415) 274-6301

SACK, MILLER & ROSENDIN, L.LP.

‘The Ordway Building

One Kaiser Plaza, # 340

Oakland, CA 94612

Telephone: (510) 286-2200 Facsimile: (510) 286-8887

SEDGWICK, DETERT, et al. (SF)

One Embarcadero Center, 16th Fl.

San Francisco, CA 94111

Telephone: (415) 781-7900 Facsimile: (415) 781-2635

STEEFEL, LEVITT & WEISS

One Embarcadero Center, # 2900

San Francisco, CA 94111

Telephone: (415) 788-0900 Facsimile: (41 5) 788-2019

STEVENS, DRUMMOND & GIFFORD

1910 Olympic Blvd., # 250

Walnut Creek, CA 94596

Telephone: (925) 944-5550 Facsimile: (925) 256-9669

THELEN REID & PRIEST LLP (SF)

101 Second St., Ste 1800

San Francisco, CA 94105

Telephone: (415) 371-1200 Facsimile: (415) 644-6519

Page 3

Abb Lummus Global, Inc.

Certaineed Corp./ Dana Corp./ Maremont
Corp./ Quigley Company, Inc./ Union Carbide
Corp.

Babcock Borsig Power, Inc.

4520 Corp., Inc./ Dixon Boiler Works, Inc./
General Refractories Company/ Viacom, Inc.

Henry Vogt Machine Co.

Grinnell Corp.

Parsons Energy & Chemical Group

Chevron Products Company/ Gatke Corp./
Shell Oil Company

Westburne Supply, Inc.

Pneumo Abex Corporation

Kaiser Aluminum & Chemical Corp./ Rapid-
American Corp./ Sequoia Ventures,
Inc./DaimlerChrysler CorporationTOWLE, DENISON, SMITH & TAVERA

10866 Wilshire Blvd

Suite 500

Los Angeles, CA 90024

Telephone: (310) 446-5445 Facsimile: (310) 446-5447

WALSWORTH, FRANKLIN, et al. (SF)

550 Montgomery Street, 8th Fl.

San Francisco, CA 94111

Telephone: (415) 781-7072 Facsimile: (415) 391-6258

WILSON, ELSER, et al. (SF)

650 California St., 14th Fl.

San Francisco, CA 94108

Telephone: (415) 433-0990 Facsimile: (415) 434-1370

Page 4

Parker Hannifin Corp./ Standard Motor
Products, Inc.

Oscar E. Erickson, Inc.

AH. Voss Company