Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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San Francisco Superior Courts
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Document Scanning Lead Sheet
May-20-2004 2:10 pm

Case Number: CGC-01-402113
Filing Date: May-19-2004 2:05
Juke Box: 001 Image: 00960492
ANSWER

JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

001000960492

Instructions:
Please place this sheet on top of the document to be scanned.4 | JOHN A. ROWLAND (SBN 43862)
HUGH A. DONOHOE (SBN 70671)
| RICHARD M. LEE (SBN 187694) San Francisco Gt /
ROPERS, MAJESKI, KOHN & BENTLEY 1800 County Superior Court
3 | 333 Market Street, Ste. 3150
4

San Francisco, California 94105 ¢ Y 19 2004
Telephone: (415) 543-4800 ON
Facsimile: (415) 274-6301 BY: f MG
5| —"Beputy Clerk
Attorneys for Defendant eputy Clerk
6 | GRINNELL CORPORATION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE CITY AND COUNTY OF SAN FRANCISCO
40 | JAMES JORDAN and SHERYL LYNN CASE NO. 402113
JORDAN,
11 DEFENDANT, GRINNELL
Plaintiffs, CORPORATION’S ANSWER TO
12 PLAINTIFFS’ FIRST AMENDED
\ v. COMPLAINT FOR PERSONAL INJURY
13 AND LOSS OF CONSORTIUM —
ASBESTOS DEFENDANTS (BHC), et al., ASBESTOS.
14
Defendants.
15
16
17 As and for its answer to plaintiffs’ first amended complaint (“complaint”), defendant,

1g | GRINNELL CORPORATION ("defendant"), files this general denial pursuant to California Code
49 | of Civil Procedure section 431.30(d) and hereby denies each and every allegation of said complaint.
20 | The use in this answer of the singular includes the plural, and the masculine includes the feminine.

21 FIRST AFFIRMATIVE DEFENSE

22 The complaint and each of its purported causes of action fails to state facts sufficient to

23 | constitute a cause of action against defendant.

24 SECOND AFFIRMATIVE DEFENSE

25 | Asa further and separate defense, defendant alleges that plaintiffs failed to bring this suit
26 | within the applicable limitations period, including but not limited to the periods prescribed by Code
27 | of Civil Procedure Sections 337, 337.1, 337.15, 338, 338(d), 339, 340(3), 340.2, 343 and 361 and

28 | Commercial Code Section 2725.

LAW OFFICES

Roper, Mask Kohn & SF/165432.1/RG9 -l-
‘trots Corporation || DEFENDANT, GRINNELL CORPORATION'S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
3150 FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS

‘San Francisco, CA 94105
(415) 543-4860wa ~

1 THIRD AFFIRMATIVE DEFENSE
Asa further and separate defense, defendant alleges that plaintiffs were negligent with

|| respect to each of the matters described in the complaint and that this negligence was the cause in

2
3 .
4, | fact and proximate cause of the damages, if any, sustained by plaintiffs. Plaintiffs’ negligence bars
5 | recovery in this action, either in whole or in part.

FOURTH AFFIRMATIVE DEFENSE

Asa further and separate defense, defendant alleges that plaintiffs’ damages, if any, were

6
7
8 proximately caused or contributed to by the negligence or other act, omission or wrongful conduct
Qo] of persons or other entities over whom/which defendant had no control and for whom/which

0

defendant can have no responsibility or liability.

1
1 FIFTH AFFIRMATIVE DEFENSE
42 As a further and separate defense, defendant alleges that plaintiff, James Jordan, knowing of

13 | the dangers incident to the undertakings and activities described in the complaint, nevertheless
44 freely and voluntarily exposed himself to those dangers and thus assumed the risk of any resulting

15 harm or damage.

16 SIXTH AFFIRMATIVE DEFENSE
17 As a further and separate defense, defendant alleges that the complaint and each of its
18 purported causes of action is barred by plaintiffs’ failure to take reasonable steps to avoid or

4g |) otherwise mitigate the claimed damages, expenditures and costs.

20 SEVENTH AFFIRMATIVE DEFENSE

21 As a further and separate defense, defendant alleges that if plaintiffs incurred damages or
22 injuries as a result of the use of the products described in the complaint, which fact defendant
23 expressly denies, such damages and injuries were caused or contributed to, either in whole or in

24 | part, by the misuse of said products.

y

25 EIGHTH AFFIRMATIVE DEFENSE
26 Asa further and separate defense, defendant alleges that plaintiffs’ damages, if any, were

o7 caused by: (1) changes and alterations to the products-described in the complaint, which changes
2g | and alterations were made by plaintiff, James Jordan, and/or third parties beyond the control of

LAW OFFICES
Roper, Mejeski Kota] SF/165432, U/RG9 -2-
A Frotessonl Corpontion |! DEFENDANT, GRINNELL CORPORATION'S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAIN1
Ban Francisco, CA 94105 FOR PERSONAL INJURY AND LOSS CF CONSORTIUM - ASBESTOS

G15) 543-4860=

bk WO NY

oOo ON OO

28

LAW OFFICES
Ropers, Majeski, Kohn &

Cat sional C

A Potesonal Corporation
Sss'earke Stee Ste
3130

San franies, CA. 96105
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defendant; and (2) improper maintenance or installation, abuse and misuse of said products by

plaintiff, James Jordan, and/or third parties beyond the control of this defendant.

NINTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that it was under no legal duty to warn
plaintiff of the hazards associated with the use of products containing asbestos. Defendant further
alleges that the purchasers of said products, plaintiff; James Jordan’s employers, save and except
this defendant, his unions and certain third parties yet to be identified, were knowledgeable and
sophisticated users and were in a better position to warn plaintiff, James J ordan, of the risks
associated with using said products and, assuming a warning was required, it was the failure of such
persons or entities to give such warning that was the proximate and superseding cause of plaintiffs’
damages, if any.

TENTH AFFIRMATIVE DEFENSE

Asa further and separate defense, defendant alleges that the asbestos-containing products, if
any, for which it had 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, James Jordan’s
employers and by third parties yet to be identified.

ELEVENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that the complaint and each of its
purported causes of action is barred because plaintiffs unreasonably delayed in bringing this action,
without good cause therefor, and thereby prejudiced this defendant, and accordingly are guilty of
laches.

TWELFTH AFFIRMATIVE DEFENSE

Asa further and separate defense, defendant alleges that no conduct by or attributable to it
was the cause in fact or the proximate cause of the damages, if any, sustained by plaintiffs, nor a
substantial factor in bringing about said damages.
Mf
iit

SF/165432.1/RG9 -3-
DEFENDANT, GRINNELL CORPORATION’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS=

oOo ON DO ON F&F WO NY

LAW OFFICES

Ropers, Majeski, Kohn &
Bentley

‘A Professional Corporation

333 Market Street, Ste

3150.

San Francisco, CA 94105

(415) $43-4800

THIRTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that at all times pertinent to the instant
complaint, plaintiffs, and each of them, were acting within the course and scope of their
employment and were entitled to receive, did receive and will continue to receive workers’
compensation benefits. Plaintiff, James Jordan’s employers, other than defendant, failed to provide
plaintiff with a safe place in which to work and said employers’ negligence, carelessness and other
acts and omissions proximately caused the injuries and damages claimed. Therefore, said
employers and their workers’ compensation carriers are barred from any recovery by lien or
otherwise herein and defendant is entitled to set off the amount of any such workers’ compensation
benefits against any judgment rendered in favor of plaintiffs.

FOURTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that its liability, if any, in this matter is
extremely minor relative to the liability of various third parties and, therefore, the damages, if any,
assessed against it should be proportionate to the degree, nature and extent of its fault, if any.

FIFTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that there was no privity of contract
between it, its employees or agents on the one hand and plaintiffs on the other and that this lack of
privity bars any cause of action in warranty or which requires privity as an essential element.

SIXTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that plaintiffs are not able to meet the
threshold requirements necessary to proceed under the market share theory of liability.
Accordingly, defendant may not be held liable to plaintiffs based on its alleged share of the
applicable product market.

SEVENTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that plaintiffs are barred from recovery
because the products described in the complaint, if any, were installed, labeled, assembled, serviced,
supplied, manufactured, designed, packaged, distributed, marketed and/or sold in conformity with

the existing state of the art and, as a result, said products were not defective in any manner. Also,

SF/165432.1/RG9 -4-
DEFENDANT, GRINNELL CORPORATION’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSLAW OFFICES
Ropers, Majeski, Kohn &
Bentley

rn
A Professional Corporation
333 Market Street, Ste
3150

San Francisco, CA 94105
(GIS) 543-4800

based upon the then existing state of the art, any risk of harm arising out of plaintiff's exposure to
asbestos-containing products, if any, was not foreseeable.

EIGHTEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that this Court lacks subject matter
jurisdiction over the matters alleged in the complaint because said complaint and each cause of
action alleged against this defendant is barred by the provisions of Labor Code, Section 3601, et
seq.

NINETEENTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that at all times pertinent to the
complaint, plaintiff, James Jordan’s employers, save and except for defendant, were negligent in
and about the matters referred to in said complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to any loss or damage, if any there was,
including non-economic damages, complained of in said complaint. This defendant is not liable for
said employers’ proportionate share of non-economic damages.

TWENTIETH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that at all times pertinent to the
complaint, parties other than this defendant were negligent in and about the matters referred to in
said complaint, and that such negligence on the part of said parties proximately and concurrently
contributed to any loss or damage, if any there was, including non-economic damages, complained
of by plaintiffs. This defendant is not liable for said parties’ proportionate share of non-economic
damages.

TWENTY-FIRST AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that to the extent plaintiffs have
received, or in future will receive, workers’ compensation benefits pursuant to the Labor Code as a
consequence of the alleged industrial injury referred to in the complaint, and in the event plaintiffs
are awarded damages against this defendant, this defendant claims a credit against such award to the
extent that this defendant is barred from enforcing its right to reimbursement for said workers'

compensation benefits.

SF/165432.1/RG9 -5-
DEFENDANT, GRINNELL CORPORATION’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS=

oOo ODN ODO TH FF WOW DY

LAW OFFICES

Ropers, Majeski, Kohn 8
Bentley

‘A Professional Corporation

333 Market Street, Ste.

3150

San Francisco, CA 94105
(G15) 543-4800

TWENTY-SECOND AFFIRMATIVE DEFENSE

As a further and separate defense, defendant denies any and all liability to the extent that
plaintiffs allege this defendant's liability as a successor, successor in business, successor in product
line, or a portion thereof; assignee, predecessor, predecessor in business, predecessor in product
line, or a portion thereof; parent, alter ego, subsidiary, whole or partial owner; wholly or partially
owned entity and/or entity that was a member of or funded.

TWENTY-THIRD AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that plaintiffs acknowledged, ratified,
consented to, and acquiesced in the alleged acts or omissions, if any, of this answering defendant,
thus barring plaintiffs from any relief as prayed for herein.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that plaintiffs herein have failed to join
indispensable parties and the complaint is thereby defective, and plaintiffs are thereby precluded
from any recovery whatsoever as prayed for in the complaint.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

As a further and separate defense, 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 1, and the Fourteenth Amendment of the
United States Constitution;

c. 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.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

As a further and separate defense, defendant alleges that to the extent plaintiffs’ claims have

been litigated and resolved in a prior action, plaintiffs’ claims herein are barred based on the
SF/165432.1/RG9 -6-
DEFENDANT, GRINNELL CORPORATION’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS=

oOo ON OO FF WO DY

LAW OFFICES
Ropers, Majeski, Kohn &
Bentley
A Professional Corporation
333 Market Street, Ste.
2180
San Francisco, CA 94105
(415) 543-4800

|

primary right and res judicata doctrines which prohibit splitting a single cause of action into
successive suits, and seeking new recovery for damages for which plaintiffs were previously
compensated by alleged joint tortfeasors.

Each denial of plaintiffs’ allegations, together with each of this defendant's allegations,
defenses and factual contentions, all as set forth herein, are hereby specifically identified as denials,
allegations, defenses and factual contentions subject to reasonable opportunity for further
investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)(4).

WHEREFORE, defendant prays:

1. That the complaint be dismissed and judgment rendered in favor of defendant and that
plaintiffs take nothing thereby;

2. For its costs of suit;
3. For appropriate credits and setoffs arising out of any payment of Workers’

Compensation benefits as alleged herein; and

4. For such other and further relief as the Court may deem just and proper.

Dated: May IF, Reo

ROPERS, MAJESKI, KOHN & BENTLEY

wh thoi oos 1 4

wh OHN A. ROWLAND
ttorneys for Defendant
RINNELL CORPORATION

SF/165432.1/RG9 -7-
DEFENDANT, GRINNELL CORPORATION’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT TO PLAINTIFFS’ COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSRopers Majeski Kohn & Bentley

A Professional Corporation

San Francisco

Co 0D Om ND HW RF WN

CASE NAME: — James Jordan, et al. y. Asbestos Defendants (BHC), et al.
ACTION NO.: 402113
PROOF OF SERVICE

Iam a citizen of the United States. My business address is 333 Market Street, Suite 3150,
San Francisco, CA 94105. Iam employed in the County of San Francisco where this service
occurs. I am over the age of 18 years, and not a party to the within cause. I am readily familiar
with my employer’s normal business practice for collection and processing of correspondence for
mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with
the U.S. Postal Service the same day as the day of collection in the ordinary course of business.

On the date set forth below, following ordinary business practice, I served a true copy of
the foregoing document(s) described as:

DEFENDANT, GRINNELL CORPORATION' ANSWER TO PLAINTIFFS' FIRST
AMENDED COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM -
ASBESTOS.

oO (BY FAX) by transmitting via facsimile the document(s) listed above to the fax
number(s) set forth below, or as stated on the attached service list, on this date
before 5:00 p.m.

& (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be
placed in the United States mail at San Francisco, California.

(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand
this date to the offices of the addressee(s).

Oo (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an
overnight delivery carrier with delivery fees provided for, addressed to the
person(s) on whom it is to be served.

O

PLAINTIFFS' COUNSEL: DESIGNATED DEFENSE COUNSEL:

BRAYTON PURCELL BERRY & BERRY
222 Rush Landing Road P. O. Box 16070
P. O. Box 6169 Oakland, CA 94610

Novato, CA 94948-6169

i (State) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.

Executed on May 19, 2004, at San oD ae -

Ruth HollowWay-Garcia

SF/165867.1/RG9

DEFENDANT, GRINNELL CORPORATION' ANSWER TO PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS.