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NO. 2018-56144
BEFORE THE SILICA MDL PRETRIAL JUDGE
STANLEY COLE § IN THE DISTRICT COURT OF
§
VS. § HARRIS COUNTY, TEXAS
CLEMCO INDUSTRIES CORPORATION,§
ET AL § 333RD JUDICIAL DISTRICT
TRANSFERRED FROM
NO. A-0201969
STANLEY COLE § IN THE DISTRICT COURT OF
VS. § JEFFERSON COUNTY, TEXAS
CLEMCO INDUSTRIES CORPORATION,§
ET AL § 58TH JUDICIAL DISTRICT
DEFENDANT'S MOTION TO TRANSFER, ORIGINAL ANSWER TO PLAINTIFF’S
FIRST AMENDED PETITION, AND ANSWER TO ALL CROSS ACTIONS
COMES NOW, The Quikrete Companies, LLC (hereinafter Quikrete) defendant in the
above entitled and numbered cause of action, and makes and files this its Original Answer to
Plaintiff's First Amended Petition and Answer to All Cross Actions, and would show as follows:
ORIGINAL ANSWER
1
Subject to the foregoing, Defendant generally denies each and every, all and singular, of
the material allegations of fact contained in Plaintiff's First Amended Petition and says the same
are untrue in whole or in part, and demands strict proof of the evidence before a jury.
AFFIRMATIVE DEFENSES
1 Defendant states that plaintiff's suit is barred because it was not presented within the time
prescribed by law for the commencement of an action upon the claims asserted, pursuant to the
appropriate and applicable statutes of limitations, and/or period of repose, and Defendant
BEAULITIGATION: 1655956.1
affirmatively asserts such statutes of limitations, including the two-year and four-year statutes of
limitations of the State of Texas and statute of repose or statute of limitations or repose of any
other state deemed to apply.
2 No act or omission of Defendant was the proximate cause or a producing cause of any
injuries to the plaintiff.
3 Defendant states that plaintiff has not been injured as a result of any product sold by
Defendant.
4 For further answer, if such be necessary, Quikrete would plead Stanley Cole’s failure to
exercise that degree of care and caution for their own safety, which would have been exercised
by a person of ordinary prudence in the exercise of ordinary care under the same or similar
circumstances. Further, Quikrete pleads that Stanley Cole was guilty of various acts of
contributory negligence and which either solely caused or were a contributing cause of his
injury.
5 In the alternative, and by way of separate or affirmative defense, Defendant alleges that
any injuries and damages alleged by plaintiff was solely caused by the acts and omissions of
others over whom Defendant had no supervision, control, or right of control. By way of
example, but not of exclusion, Plaintiff's alleged injuries and damages was caused in whole or in
part by one or more of the following:
(1) negligence, product misuse, failure to heed warnings or instructions, failure to use
proper equipment or safety devices or procedures, or other conduct of Stanley
Cole or persons or entities other than Defendant;
2) natural causes, or conditions or events that were not caused by this defendant;
@) intervening or superseding causes for which Defendant has no legal liability or
responsibility; or
(4) products supplied by, activities of, conditions created by, negligence of, or other
BEAULITIGATION:1655956.1
conduct of others over which Defendant did not have or exercise a right of
control, and for which Defendant has no legal liability or responsibility.
6 Defendant states that Stanley Cole assumed any risks incident to his employment,
including exposure to silica and that such voluntary assumption of the risk amounts to a bar to
any recovery against this Defendant.
7
By way of separate or affirmative defense, plaintiff may be barred from recovery herein
by the doctrine of misuse or improper use which proximately caused or proximately contributed
to cause the injuries about which plaintiff complain herein.
8 To the extent plaintiff had an obligation to mitigate any damages he claims to have
sustained, Defendant asserts the defense of failure to mitigate to the extent discovery reveals it to
be applicable.
9 By way of separate or affirmative defense, plaintiff is barred from recovery by the
doctrines of contributory negligence, comparative negligence and/or comparative causation.
Defendant would show that Stanley Cole is guilty of various acts and omissions that amounted to
negligence in the performance of his work and occupations, which acting together or separately,
were each a proximate and producing cause of his injuries. Such negligence by Stanley Cole
exceeded the negligence and/or fault attributed to Defendant, if any. Accordingly, plaintiff are
barred from recovery. Whatever damages plaintiff may have suffered, if any, was solely or
proximately caused by, or contributed to by, Stanley Cole’s own negligent acts or omissions,
including among other things:
a) Failing to exercise ordinary care for their safety when he knew or should have
known of the hazards incident to his work;
b) Failing to utilize protective clothing and safety equipment when he knew or
should have known that such protective clothing and safety equipment was
necessary to protect against potential hazards in the materials with which he was
working;
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°) Failing to advise, request, or demand that his employer or employers provide
proper safety equipment, clothing, and protective devices for his use as an
employee;
d) Failing to heed advice and warnings given about safe and proper work conditions
and product usage, and failed to use safety and protective equipment provided to
them by his employer and others;
e) Failing to read, follow, make himself aware of, or implement instructions,
regulations, rules, practices of his employers for proper safety;
Ignoring and failing to make himself aware of the content of manufacturing
warnings, labels, MSDS sheets, and instructions accompanying sandblasting and
safety equipment;
8) Knowingly engaging in sandblasting in enclosed locations or where ventilation
was obviously insufficient;
i) Failing at all times to use adequate air masks and use of paper mask instead of
adequate air masks while harmful dust was in the air;
D Failing to maintain in good condition air masks and equipment; and
k) Failing to maintain or replace hoses and failure to allow air to clear before
removing air masks.
10. In the alternative, and by way of separate or affirmative defense, Defendant alleges that
Stanley Cole’s employers had knowledge of the products used and the risks incident thereto and,
therefore, Defendant breached no duty owing to plaintiff.
11. In the alternative, and by way of separate or affirmative defense, Defendant alleges that
Stanley Cole’s injuries, if any, were pre-existing and/or not the result of any contact with any
product manufactured, sold, used, or distributed by Defendant.
12. In the alternative, and by way of separate or affirmative defense, Defendant alleges that
the plaintiff's damages, if any, were caused by negligent acts or omissions or products of third
parties and/or other defendants and/or exposure to certain products used, manufactured or
distributed by third parties and/or other defendants. Under applicable provisions of statutory or
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decisional law, Defendant is entitled to a comparative apportionment of fault, if any, as to other
defendants and cross-defendants and/or third parties and is entitled to a judgment against them
herein for contribution and/or indemnity and/or a percentage reduction in accordance with the
apportionment of fault for the negligence liability, or other conduct that is attributable to plaintiff
Stanley Cole or to any other party or any person or entity who has settled with plaintiff, or any
responsible third party.
13. In the alternative, and by way of separate or affirmative defense, Defendant is entitled to
a set off or dollar for dollar credit for any such settlements and any amounts received by plaintiff
from any source whatsoever with respect to the injuries and damages at issue in this suit pursuant
to the Texas Revised Civil Statutes, the Texas Civil Practice & Remedies Code or other
applicable state law. Defendant is entitled to an offset equal to the sum of the dollar amount of
all settlements. See also TEX. Civ. PRAC. & REM. CODE §33.012.
14. Defendant states that any finding of negligence against this Defendant should be
compared to the negligence of all other parties to this action, including the plaintiff, and all other
Defendants.
15. Defendant states in the alternative that any alleged injuries to Stanley Cole was due to
and solely caused by the negligence of his employers, their agents and employees in failing to
provide safe and suitable working conditions; in failing to train properly and supervise Stanley
Cole; in failing to warn Stanley Cole of any dangerous condition that such employers, their
agents and employees knew or should have known were incident to the work being performed by
Stanley Cole; and in failing to provide safety equipment to Stanley Cole. Additionally, the
negligence of said employers, their agents and employees is an intervening and superseding
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cause of the alleged injuries to the plaintiff and a bar to any recovery by the plaintiff against this
Defendant.
16. Insofar as the petition purports to assert a claim for punitive damages, it is premised on
an alleged course of conduct vis-a-vis the general public, and the plaintiff in this action is
therefore not the real party in interest and is barred and foreclosed form asserting such claim.
Further, Defendant did not participate in any of the alleged activities for which plaintiff
assert that punitive damages may be assessed. To the extent plaintiff seek to recover punitive
damages from Defendant, such recovery violates Article I, Sections 13 and 19 of the Texas
Constitution and violates Defendant’s right to due process of law and equal protection of the law
under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as
Article 1, Article 10, and Article 13 of the Constitution of the State of Texas and the constitution
of laws of any other state deemed to apply in this case.
Additionally, plaintiff's claims are so vague and indefinite that they fail to clearly
appraise Defendant of the nature and character of the damages for which plaintiff seeks to hold it
liable. However, if plaintiff’s petition can be construed as seeking punitive damages against
Defendant, the granting of such relief would be in violation of Defendant’s constitutional rights
under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution in that:
(a) punitive damages are penal in nature and tantamount to imposition of a criminal
fine;
(b) the guidelines, standards and/or instructions for the imposition of punitive
damages are vague, indefinite and uncertain, and set no limit on the damages
which can be awarded, and furthermore, do not apprise this Defendant of the
conduct that will subject it to criminal penalties;
(©) punitive damages expose this Defendant to multiple punishment and fines for the
same act;
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@) punitive damages discriminate against this Defendant on the basis of wealth, in
that different amounts can be awarded against different Defendants for the same
act, but who suffer only in material wealth; and
© the facts in this case do not meet the standard for punitive damages set forth by
the Supreme Court Transportation Ins. Co. v. Moriel, 870 S.W.2d 10 (Tex. 1994).
@ Any award of punitive damages would be imposed under a standard of conduct
formulated years after any of Defendant’s actions; a retroactive application of the
standard of conduct to Defendant would be a violation of due process.
(g) Ifa punitive damage award is not necessarily barred by the Fifth or Fourteenth
Amendment, an award of punitive damages -- depending upon its size,
relationship for the award, and other factors -- could violate the Fifth and
Fourteenth Amendments.
Punitive damages under Texas procedural law constitutes an excessive fine in violation of
the Eighth Amendment of the United States Constitution. The punitive damages sought as a part
of this petition are also unconstitutional since plaintiff have failed to place a limit on the amount
of such damage award, and they are therefore void for vagueness. To the extent necessary,
Defendant asserts the limit on punitive damages permitted by law under Tex. Civ. Prac. & Rem.
Code §41.008, et seq.
17. In the alternative, and by way of separate or affirmative defense, Defendant would show
that unless Defendant’s liability for punitive damages and the appropriate amount of punitive
damages are each required to be established by clear and convincing evidence under Texas law
or the law of any other state, any award of punitive damages would violate Defendant’s due
process rights guaranteed by the Fourteenth Amendment to the United States Constitution,
Section 19 of Article I of the Texas Constitution, and the constitution or laws of any other state
deemed to apply in this case.
18. In the alternative, and by way of separate or affirmative defense, Defendant would show
that the Plaintiff's claim for punitive damages against Defendant cannot be sustained because an
BEAULITIGATION:1655956.1
award of punitive damages under Texas law or the applicable law of any other state, or federal
law is (which Defendant asserts preempts state law and precludes any recovery of punitive
damages) subject to no predetermined limit on the amount of punitive damages that a jury may
impose, such as a maximum multiple of compensatory or a maximum dollar amount, would
violate the Excessive Fines Clause of the United States Constitution and Defendants’ due process
rights guaranteed by the Fourteenth Amendment to the United States Constitution, Section 19 of
Article I of the Texas Constitution, and the constitution or laws of any other state deemed to
apply in this case.
19. In the alternative, and by way of separate or affirmative defense, Defendant would show
that the Plaintiff's claim for punitive damages against Defendant cannot be sustained because an
award of punitive damages under Texas law or the laws of any other state by a jury that (1) is not
provided any standard of sufficient clarity for determining the appropriateness, or the appropriate
size, of any punitive damage award, (2) is not instructed on the limits on punitive damages
imposed by the applicable principles of deterrence, (3) is not expressly prohibited from
awarding punitive damages, or determining the amount of an award of punitive damages, or
determining the amount of an award of punitive damages, in whole or in part, on the basis of
invidiously discriminatory characteristics, (4) is permitted to award punitive damages that is
vague and arbitrary and does not define with sufficient clarity the conduct or mental state that
makes punitive damages permissible, and (5) is not subject to judicial review on the basis of
objective standards, would violate Defendant's due process rights guaranteed by the Fourteenth
Amendment to the United States Constitution, Section 19 of Article I of the Texas Constitution,
and the constitution or laws of any other state deemed to apply in this case.
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20. In the alternative, and by way of affirmative defense, Defendant would show that
Plaintiff's claim for relief, if granted, would constitute a taking of private property for public use
without just compensation, and would contravene Defendant’s rights as preserved by the
Fourteenth Amendment to the Constitution of the United States, the Constitution of the State of
Texas, and the constitution or laws of any other state deemed to apply to this case.
21. Should an award of punitive damages be assessed and sustained, Defendant pleads the
statutory cap for punitive damages set forth in Texas Civil Practice & Remedies Code
§41.008(b).
22. In the alternative, and by way of separate or affirmative defense, Defendant would show
the Plaintiff failed to allege a claim in Plaintiffs Petition on which punitive damages can be
recovered.
23. Further answering herein, Defendant says that during the relevant time periods, the
state(s) in which Stanley Cole worked had in effect workers’ compensation laws which provide
that the disease complained of by Stanley Cole is an occupational disease for which a person
engaged in work with silica products can claim workers’ compensation disability benefits against
his employer at the time the disease is discovered. According to the plaintiff's pleadings, silica
was used over a period of many years, and if Stanley Cole has silicosis or other diseases, it is due
to the nature of the occupation, was acquired over a long period of time, and was not the result of
working with any particular product or products. The workers’ compensation statutes of those
states provide workers’ compensation benefits as the exclusive remedy for the disability of an
employee.
24, Defendant asserts that plaintiffs claims are barred due to the abuse, misuse, material
alteration, or change in conditions of the products.
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25. There should be no recovery against Defendant because of any failure to warn or
inadequacy of warning because at all times pertinent to plaintiff's claims, Stanley Cole possessed
or should have possessed good and adequate knowledge which negated any need for said
warning, and/or he was required to follow specific safety procedures as established by his
employer(s) which negated the need or requirement for any such warning. Further, Defendant
did not employ or control Stanley Cole and, therefore, had no right or opportunity to warn him.
If Defendant had given any additional warnings, Stanley Cole would not have heeded such
warnings.
26. If Defendant had a duty to warn Stanley Cole, which is specifically denied, then the
warnings and instructions provided were adequate. Plaintiff's injuries were caused, solely or in
part, by Stanley Cole and his employers! failure to heed the warnings and instructions given. If
Defendant had a duty to warn Stanley Cole, which is specifically denied, then it satisfied any
such duty by providing adequate warnings to Stanley Cole’s employers or work sites, who acted
as learned intermediaries between Defendant and Stanley Cole.
27. Defendant would invoke the provisions of Chapter 41 of the Texas Civil Practice and
Remedies Code, including but not limited to, Section 41.005, Section 41.006, Section 41.007 and
Section 41.009. Additionally, any amounts sought by Plaintiff for medical expenses are limited
to amounts actually paid or incurred by or in behalf of the plaintiff to the extent that any such
alleged amounts are reasonable and do not constitute a failure to mitigate. Further, Defendant
pleads all other statutory and common law limitations on the amounts sought by plaintiff as
alleged damages in this matter.
28. This Defendant would show that neither it nor anyone to whom it was responsible had
any duty or responsibility with regard to the manner, method, and means for performing the
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work of Stanley Cole. There was no relationship between Stanley Cole and this Defendant
which created any duty on the part of this Defendant regarding the manner, method, or
conditions under which Stanley Cole performed his work. Further, this Defendant had no right
to control the manner, method, or conditions under which Stanley Cole’s work was performed.
Defendant would show that Stanley Cole’s injuries, if any, resulted from the manner, method, or
condition under which their work was performed and over which this Defendant had no control
and that their injuries, if any, were not the result of any defect of product, breach of warranty, or
negligence on the part of this Defendant.
29. No products such as complained of by Plaintiff were manufactured, distributed or sold by
Defendant. If any products were sold by Defendant, they were reasonably fit and suitable for the
purposes for which they were manufactured, distributed or sold, and it is denied that such
products were defective in any manner whatsoever.
30. Any products complained of as being sold by Defendant were manufactured, distributed
and sold to a limited number of purchasers for use by a limited class of workmen, all of whom
held themselves out as having special knowledge and expertise in the handling and use of the
products. The purchasers of products sold by this Defendant are experienced members of that
limited class of skilled and knowledgeable entities or individuals upon whose special knowledge
and expertise concerning any alleged danger of their particular operations in which this
Defendant’s products are used and this Defendant was entitled to rely upon such purchaser to
apply specialized knowledge and expertise if the product was to be used.
31. Consistent with the Texas Supreme Court’s recent decision in Humble Sand & Gravel,
Inc. v. Gomez, (Tex. 2004);
a. The risks of silica blasting were/are commonly known in the blasting industry.
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ll
Defendant had no duty to warn Decedent’s employers as any risks of product use
were “common knowledge.”
For bulk delivery, there is no duty of Defendant to warn end users.
Defendant had no duty to investigate the practices of Decedent’s employers.
Decedent’s employers had a common law and statutory duty to warn Decedent of
the risks of abrasive blasting and any failure was (1) the proximate/producing
cause of any of Plaintiff's claimed damages; and (2) makes such employer a
“responsible third party” under the law.
32. In the event of intermediary resale, bagging that which was sold in bulk, or change of
Defendant’s product from its original delivery, Defendant avers no duty and/or fulfillment of any
statutory or common law duty to Plaintiff under the raw material/component part supplier
defenses. Defendant asserts the raw materials/eomponent part Defense as found in
RESTATEMENT THIRD OF TORTS, PRODUCT LIABILITY, Section 5 and all common law
incorporating concepts of Section 5.
33. As a matter of law, proof of “any exposure” to Defendant’s product is not sufficient to
hold Defendant responsible for Decedent’s alleged condition. Defendant avers that, in light of
Decedent’s total exposure, any alleged dose from Defendant’s product is so small that it is not
reliably quantifiable and further, in light of the negligence of Decedent and others that led to
such alleged overexposure, reasonable persons could not regard Defendant’s product as a cause
of Decedent’s alleged condition.
34. Plaintiff's employer was a sophisticated user and as a consequence there is no legal duty
between this Defendant and the plaintiff.
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35. Any alleged exposure of Defendant’s product could not be a substantial factor of
causation, nor could there be reliable expert conclusion that exposure to Defendant’s product
more than doubled Decedent’s risk of contracting Decedent’s condition. Regardless, alleged
exposure to Defendant’s product could only be de-minimis and therefore not a producing cause
of Decedent’s claimed condition.
MOTION TO RETAIN BIFURCATED TRIAL RIGHTS
Subject to and without waiver of the foregoing, Defendant retains its right to bifurcate
this trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009 and Transportation Ins. Co. v.
Moriel, 879 S.W.2d 10 (Tex. 1994). Evidence of the financial status of Defendant is not relevant
in the determination of liability. Section 41.009 of the Tex. Civ. Prac. & Rem. Code mandates a
bifurcated proceeding once a party seeks such a procedure. WHEREFORE, Defendant maintains
it right to bifurcate the trial of this matter if Defendant so elects to bifurcate.
ANSWER TO CROSS-ACTIONS
In answer to any cross-actions for indemnity or contribution filed or to be filed in the
future by other defendants, Defendant denies that such defendants are entitled to indemnity or
contribution from this Defendant, denies each and every allegation in said cross-action, and
demands strict proof thereof.
ELECTION OF CREDITS
In the event that one or more of the multiple defendants sued herein have settled
plaintiffs claims against them prior to judgment, Defendant will be entitled to a credit for the
amounts paid by settling defendants, or to a set-off in the form of a percentage or pro rata
reduction of its liability, if any, to the plaintiff.
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WHEREFORE, Defendant The Quikrete Companies, LLC respectfully pray that the
plaintiff's suit be dismissed, or alternatively that, upon final hearing hereof, plaintiff takes
nothing by this suit, that this case be dismissed with prejudice to the refiling of same with all
costs taxed against plaintiff plus whatever other and further relief to which Defendant may show
itself to be justly entitled. Defendant further prays that its Motion to Retain Bifurcated Trial
Rights be granted and that in the event of judgment in favor of plaintiff and against this
Defendant, this Defendant should have judgment for contribution and/or indemnity as pled
above, together with such other and further relief to which it may show itself justly entitled.
Respectfully Submitted,
MEHAFFY WEBER, P.C.
o
By: Lata
arbara J. Barro
State Bar No. 01817250
Attorney for The Quikrete Companies, LLC
P. O. Box 16
Beaumont, Texas 77704
(409) 835-5011
(409) 835-5177
barbarabarron@mehai ‘weber.com
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing instrument has
been forwarded to Plaintiff's counsel of record on this the 4th day of September, 2018.
BEAULITIGATION:1655956.1
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Preview
NO. 2018-56144 BEFORE THE SILICA MDL PRETRIAL JUDGE STANLEY COLE § IN THE DISTRICT COURT OF § VS. § HARRIS COUNTY, TEXAS CLEMCO INDUSTRIES CORPORATION,§ ET AL § 333RD JUDICIAL DISTRICT TRANSFERRED FROM NO. A-0201969 STANLEY COLE § IN THE DISTRICT COURT OF VS. § JEFFERSON COUNTY, TEXAS CLEMCO INDUSTRIES CORPORATION,§ ET AL § 58TH JUDICIAL DISTRICT DEFENDANT'S MOTION TO TRANSFER, ORIGINAL ANSWER TO PLAINTIFF’S FIRST AMENDED PETITION, AND ANSWER TO ALL CROSS ACTIONS COMES NOW, The Quikrete Companies, LLC (hereinafter Quikrete) defendant in the above entitled and numbered cause of action, and makes and files this its Original Answer to Plaintiff's First Amended Petition and Answer to All Cross Actions, and would show as follows: ORIGINAL ANSWER 1 Subject to the foregoing, Defendant generally denies each and every, all and singular, of the material allegations of fact contained in Plaintiff's First Amended Petition and says the same are untrue in whole or in part, and demands strict proof of the evidence before a jury. AFFIRMATIVE DEFENSES 1 Defendant states that plaintiff's suit is barred because it was not presented within the time prescribed by law for the commencement of an action upon the claims asserted, pursuant to the appropriate and applicable statutes of limitations, and/or period of repose, and Defendant BEAULITIGATION: 1655956.1 affirmatively asserts such statutes of limitations, including the two-year and four-year statutes of limitations of the State of Texas and statute of repose or statute of limitations or repose of any other state deemed to apply. 2 No act or omission of Defendant was the proximate cause or a producing cause of any injuries to the plaintiff. 3 Defendant states that plaintiff has not been injured as a result of any product sold by Defendant. 4 For further answer, if such be necessary, Quikrete would plead Stanley Cole’s failure to exercise that degree of care and caution for their own safety, which would have been exercised by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances. Further, Quikrete pleads that Stanley Cole was guilty of various acts of contributory negligence and which either solely caused or were a contributing cause of his injury. 5 In the alternative, and by way of separate or affirmative defense, Defendant alleges that any injuries and damages alleged by plaintiff was solely caused by the acts and omissions of others over whom Defendant had no supervision, control, or right of control. By way of example, but not of exclusion, Plaintiff's alleged injuries and damages was caused in whole or in part by one or more of the following: (1) negligence, product misuse, failure to heed warnings or instructions, failure to use proper equipment or safety devices or procedures, or other conduct of Stanley Cole or persons or entities other than Defendant; 2) natural causes, or conditions or events that were not caused by this defendant; @) intervening or superseding causes for which Defendant has no legal liability or responsibility; or (4) products supplied by, activities of, conditions created by, negligence of, or other BEAULITIGATION:1655956.1 conduct of others over which Defendant did not have or exercise a right of control, and for which Defendant has no legal liability or responsibility. 6 Defendant states that Stanley Cole assumed any risks incident to his employment, including exposure to silica and that such voluntary assumption of the risk amounts to a bar to any recovery against this Defendant. 7 By way of separate or affirmative defense, plaintiff may be barred from recovery herein by the doctrine of misuse or improper use which proximately caused or proximately contributed to cause the injuries about which plaintiff complain herein. 8 To the extent plaintiff had an obligation to mitigate any damages he claims to have sustained, Defendant asserts the defense of failure to mitigate to the extent discovery reveals it to be applicable. 9 By way of separate or affirmative defense, plaintiff is barred from recovery by the doctrines of contributory negligence, comparative negligence and/or comparative causation. Defendant would show that Stanley Cole is guilty of various acts and omissions that amounted to negligence in the performance of his work and occupations, which acting together or separately, were each a proximate and producing cause of his injuries. Such negligence by Stanley Cole exceeded the negligence and/or fault attributed to Defendant, if any. Accordingly, plaintiff are barred from recovery. Whatever damages plaintiff may have suffered, if any, was solely or proximately caused by, or contributed to by, Stanley Cole’s own negligent acts or omissions, including among other things: a) Failing to exercise ordinary care for their safety when he knew or should have known of the hazards incident to his work; b) Failing to utilize protective clothing and safety equipment when he knew or should have known that such protective clothing and safety equipment was necessary to protect against potential hazards in the materials with which he was working; BEAULITIGATION:1655956.1 °) Failing to advise, request, or demand that his employer or employers provide proper safety equipment, clothing, and protective devices for his use as an employee; d) Failing to heed advice and warnings given about safe and proper work conditions and product usage, and failed to use safety and protective equipment provided to them by his employer and others; e) Failing to read, follow, make himself aware of, or implement instructions, regulations, rules, practices of his employers for proper safety; Ignoring and failing to make himself aware of the content of manufacturing warnings, labels, MSDS sheets, and instructions accompanying sandblasting and safety equipment; 8) Knowingly engaging in sandblasting in enclosed locations or where ventilation was obviously insufficient; i) Failing at all times to use adequate air masks and use of paper mask instead of adequate air masks while harmful dust was in the air; D Failing to maintain in good condition air masks and equipment; and k) Failing to maintain or replace hoses and failure to allow air to clear before removing air masks. 10. In the alternative, and by way of separate or affirmative defense, Defendant alleges that Stanley Cole’s employers had knowledge of the products used and the risks incident thereto and, therefore, Defendant breached no duty owing to plaintiff. 11. In the alternative, and by way of separate or affirmative defense, Defendant alleges that Stanley Cole’s injuries, if any, were pre-existing and/or not the result of any contact with any product manufactured, sold, used, or distributed by Defendant. 12. In the alternative, and by way of separate or affirmative defense, Defendant alleges that the plaintiff's damages, if any, were caused by negligent acts or omissions or products of third parties and/or other defendants and/or exposure to certain products used, manufactured or distributed by third parties and/or other defendants. Under applicable provisions of statutory or BEAULITIGATION:1655956.1 decisional law, Defendant is entitled to a comparative apportionment of fault, if any, as to other defendants and cross-defendants and/or third parties and is entitled to a judgment against them herein for contribution and/or indemnity and/or a percentage reduction in accordance with the apportionment of fault for the negligence liability, or other conduct that is attributable to plaintiff Stanley Cole or to any other party or any person or entity who has settled with plaintiff, or any responsible third party. 13. In the alternative, and by way of separate or affirmative defense, Defendant is entitled to a set off or dollar for dollar credit for any such settlements and any amounts received by plaintiff from any source whatsoever with respect to the injuries and damages at issue in this suit pursuant to the Texas Revised Civil Statutes, the Texas Civil Practice & Remedies Code or other applicable state law. Defendant is entitled to an offset equal to the sum of the dollar amount of all settlements. See also TEX. Civ. PRAC. & REM. CODE §33.012. 14. Defendant states that any finding of negligence against this Defendant should be compared to the negligence of all other parties to this action, including the plaintiff, and all other Defendants. 15. Defendant states in the alternative that any alleged injuries to Stanley Cole was due to and solely caused by the negligence of his employers, their agents and employees in failing to provide safe and suitable working conditions; in failing to train properly and supervise Stanley Cole; in failing to warn Stanley Cole of any dangerous condition that such employers, their agents and employees knew or should have known were incident to the work being performed by Stanley Cole; and in failing to provide safety equipment to Stanley Cole. Additionally, the negligence of said employers, their agents and employees is an intervening and superseding BEAULITIGATION: 1655956.1 cause of the alleged injuries to the plaintiff and a bar to any recovery by the plaintiff against this Defendant. 16. Insofar as the petition purports to assert a claim for punitive damages, it is premised on an alleged course of conduct vis-a-vis the general public, and the plaintiff in this action is therefore not the real party in interest and is barred and foreclosed form asserting such claim. Further, Defendant did not participate in any of the alleged activities for which plaintiff assert that punitive damages may be assessed. To the extent plaintiff seek to recover punitive damages from Defendant, such recovery violates Article I, Sections 13 and 19 of the Texas Constitution and violates Defendant’s right to due process of law and equal protection of the law under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as Article 1, Article 10, and Article 13 of the Constitution of the State of Texas and the constitution of laws of any other state deemed to apply in this case. Additionally, plaintiff's claims are so vague and indefinite that they fail to clearly appraise Defendant of the nature and character of the damages for which plaintiff seeks to hold it liable. However, if plaintiff’s petition can be construed as seeking punitive damages against Defendant, the granting of such relief would be in violation of Defendant’s constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution in that: (a) punitive damages are penal in nature and tantamount to imposition of a criminal fine; (b) the guidelines, standards and/or instructions for the imposition of punitive damages are vague, indefinite and uncertain, and set no limit on the damages which can be awarded, and furthermore, do not apprise this Defendant of the conduct that will subject it to criminal penalties; (©) punitive damages expose this Defendant to multiple punishment and fines for the same act; BEAULITIGATION:1655956.1 @) punitive damages discriminate against this Defendant on the basis of wealth, in that different amounts can be awarded against different Defendants for the same act, but who suffer only in material wealth; and © the facts in this case do not meet the standard for punitive damages set forth by the Supreme Court Transportation Ins. Co. v. Moriel, 870 S.W.2d 10 (Tex. 1994). @ Any award of punitive damages would be imposed under a standard of conduct formulated years after any of Defendant’s actions; a retroactive application of the standard of conduct to Defendant would be a violation of due process. (g) Ifa punitive damage award is not necessarily barred by the Fifth or Fourteenth Amendment, an award of punitive damages -- depending upon its size, relationship for the award, and other factors -- could violate the Fifth and Fourteenth Amendments. Punitive damages under Texas procedural law constitutes an excessive fine in violation of the Eighth Amendment of the United States Constitution. The punitive damages sought as a part of this petition are also unconstitutional since plaintiff have failed to place a limit on the amount of such damage award, and they are therefore void for vagueness. To the extent necessary, Defendant asserts the limit on punitive damages permitted by law under Tex. Civ. Prac. & Rem. Code §41.008, et seq. 17. In the alternative, and by way of separate or affirmative defense, Defendant would show that unless Defendant’s liability for punitive damages and the appropriate amount of punitive damages are each required to be established by clear and convincing evidence under Texas law or the law of any other state, any award of punitive damages would violate Defendant’s due process rights guaranteed by the Fourteenth Amendment to the United States Constitution, Section 19 of Article I of the Texas Constitution, and the constitution or laws of any other state deemed to apply in this case. 18. In the alternative, and by way of separate or affirmative defense, Defendant would show that the Plaintiff's claim for punitive damages against Defendant cannot be sustained because an BEAULITIGATION:1655956.1 award of punitive damages under Texas law or the applicable law of any other state, or federal law is (which Defendant asserts preempts state law and precludes any recovery of punitive damages) subject to no predetermined limit on the amount of punitive damages that a jury may impose, such as a maximum multiple of compensatory or a maximum dollar amount, would violate the Excessive Fines Clause of the United States Constitution and Defendants’ due process rights guaranteed by the Fourteenth Amendment to the United States Constitution, Section 19 of Article I of the Texas Constitution, and the constitution or laws of any other state deemed to apply in this case. 19. In the alternative, and by way of separate or affirmative defense, Defendant would show that the Plaintiff's claim for punitive damages against Defendant cannot be sustained because an award of punitive damages under Texas law or the laws of any other state by a jury that (1) is not provided any standard of sufficient clarity for determining the appropriateness, or the appropriate size, of any punitive damage award, (2) is not instructed on the limits on punitive damages imposed by the applicable principles of deterrence, (3) is not expressly prohibited from awarding punitive damages, or determining the amount of an award of punitive damages, or determining the amount of an award of punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, (4) is permitted to award punitive damages that is vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes punitive damages permissible, and (5) is not subject to judicial review on the basis of objective standards, would violate Defendant's due process rights guaranteed by the Fourteenth Amendment to the United States Constitution, Section 19 of Article I of the Texas Constitution, and the constitution or laws of any other state deemed to apply in this case. BEAULITIGATION: 1655956. 1 20. In the alternative, and by way of affirmative defense, Defendant would show that Plaintiff's claim for relief, if granted, would constitute a taking of private property for public use without just compensation, and would contravene Defendant’s rights as preserved by the Fourteenth Amendment to the Constitution of the United States, the Constitution of the State of Texas, and the constitution or laws of any other state deemed to apply to this case. 21. Should an award of punitive damages be assessed and sustained, Defendant pleads the statutory cap for punitive damages set forth in Texas Civil Practice & Remedies Code §41.008(b). 22. In the alternative, and by way of separate or affirmative defense, Defendant would show the Plaintiff failed to allege a claim in Plaintiffs Petition on which punitive damages can be recovered. 23. Further answering herein, Defendant says that during the relevant time periods, the state(s) in which Stanley Cole worked had in effect workers’ compensation laws which provide that the disease complained of by Stanley Cole is an occupational disease for which a person engaged in work with silica products can claim workers’ compensation disability benefits against his employer at the time the disease is discovered. According to the plaintiff's pleadings, silica was used over a period of many years, and if Stanley Cole has silicosis or other diseases, it is due to the nature of the occupation, was acquired over a long period of time, and was not the result of working with any particular product or products. The workers’ compensation statutes of those states provide workers’ compensation benefits as the exclusive remedy for the disability of an employee. 24, Defendant asserts that plaintiffs claims are barred due to the abuse, misuse, material alteration, or change in conditions of the products. BEAULITIGATION:1655956.1 25. There should be no recovery against Defendant because of any failure to warn or inadequacy of warning because at all times pertinent to plaintiff's claims, Stanley Cole possessed or should have possessed good and adequate knowledge which negated any need for said warning, and/or he was required to follow specific safety procedures as established by his employer(s) which negated the need or requirement for any such warning. Further, Defendant did not employ or control Stanley Cole and, therefore, had no right or opportunity to warn him. If Defendant had given any additional warnings, Stanley Cole would not have heeded such warnings. 26. If Defendant had a duty to warn Stanley Cole, which is specifically denied, then the warnings and instructions provided were adequate. Plaintiff's injuries were caused, solely or in part, by Stanley Cole and his employers! failure to heed the warnings and instructions given. If Defendant had a duty to warn Stanley Cole, which is specifically denied, then it satisfied any such duty by providing adequate warnings to Stanley Cole’s employers or work sites, who acted as learned intermediaries between Defendant and Stanley Cole. 27. Defendant would invoke the provisions of Chapter 41 of the Texas Civil Practice and Remedies Code, including but not limited to, Section 41.005, Section 41.006, Section 41.007 and Section 41.009. Additionally, any amounts sought by Plaintiff for medical expenses are limited to amounts actually paid or incurred by or in behalf of the plaintiff to the extent that any such alleged amounts are reasonable and do not constitute a failure to mitigate. Further, Defendant pleads all other statutory and common law limitations on the amounts sought by plaintiff as alleged damages in this matter. 28. This Defendant would show that neither it nor anyone to whom it was responsible had any duty or responsibility with regard to the manner, method, and means for performing the BEAULITIGATION:1655956.1 10 work of Stanley Cole. There was no relationship between Stanley Cole and this Defendant which created any duty on the part of this Defendant regarding the manner, method, or conditions under which Stanley Cole performed his work. Further, this Defendant had no right to control the manner, method, or conditions under which Stanley Cole’s work was performed. Defendant would show that Stanley Cole’s injuries, if any, resulted from the manner, method, or condition under which their work was performed and over which this Defendant had no control and that their injuries, if any, were not the result of any defect of product, breach of warranty, or negligence on the part of this Defendant. 29. No products such as complained of by Plaintiff were manufactured, distributed or sold by Defendant. If any products were sold by Defendant, they were reasonably fit and suitable for the purposes for which they were manufactured, distributed or sold, and it is denied that such products were defective in any manner whatsoever. 30. Any products complained of as being sold by Defendant were manufactured, distributed and sold to a limited number of purchasers for use by a limited class of workmen, all of whom held themselves out as having special knowledge and expertise in the handling and use of the products. The purchasers of products sold by this Defendant are experienced members of that limited class of skilled and knowledgeable entities or individuals upon whose special knowledge and expertise concerning any alleged danger of their particular operations in which this Defendant’s products are used and this Defendant was entitled to rely upon such purchaser to apply specialized knowledge and expertise if the product was to be used. 31. Consistent with the Texas Supreme Court’s recent decision in Humble Sand & Gravel, Inc. v. Gomez, (Tex. 2004); a. The risks of silica blasting were/are commonly known in the blasting industry. BEAULITIGATION:1655956.1 ll Defendant had no duty to warn Decedent’s employers as any risks of product use were “common knowledge.” For bulk delivery, there is no duty of Defendant to warn end users. Defendant had no duty to investigate the practices of Decedent’s employers. Decedent’s employers had a common law and statutory duty to warn Decedent of the risks of abrasive blasting and any failure was (1) the proximate/producing cause of any of Plaintiff's claimed damages; and (2) makes such employer a “responsible third party” under the law. 32. In the event of intermediary resale, bagging that which was sold in bulk, or change of Defendant’s product from its original delivery, Defendant avers no duty and/or fulfillment of any statutory or common law duty to Plaintiff under the raw material/component part supplier defenses. Defendant asserts the raw materials/eomponent part Defense as found in RESTATEMENT THIRD OF TORTS, PRODUCT LIABILITY, Section 5 and all common law incorporating concepts of Section 5. 33. As a matter of law, proof of “any exposure” to Defendant’s product is not sufficient to hold Defendant responsible for Decedent’s alleged condition. Defendant avers that, in light of Decedent’s total exposure, any alleged dose from Defendant’s product is so small that it is not reliably quantifiable and further, in light of the negligence of Decedent and others that led to such alleged overexposure, reasonable persons could not regard Defendant’s product as a cause of Decedent’s alleged condition. 34. Plaintiff's employer was a sophisticated user and as a consequence there is no legal duty between this Defendant and the plaintiff. BEAULITIGATION: 1655956. 1 12 35. Any alleged exposure of Defendant’s product could not be a substantial factor of causation, nor could there be reliable expert conclusion that exposure to Defendant’s product more than doubled Decedent’s risk of contracting Decedent’s condition. Regardless, alleged exposure to Defendant’s product could only be de-minimis and therefore not a producing cause of Decedent’s claimed condition. MOTION TO RETAIN BIFURCATED TRIAL RIGHTS Subject to and without waiver of the foregoing, Defendant retains its right to bifurcate this trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009 and Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994). Evidence of the financial status of Defendant is not relevant in the determination of liability. Section 41.009 of the Tex. Civ. Prac. & Rem. Code mandates a bifurcated proceeding once a party seeks such a procedure. WHEREFORE, Defendant maintains it right to bifurcate the trial of this matter if Defendant so elects to bifurcate. ANSWER TO CROSS-ACTIONS In answer to any cross-actions for indemnity or contribution filed or to be filed in the future by other defendants, Defendant denies that such defendants are entitled to indemnity or contribution from this Defendant, denies each and every allegation in said cross-action, and demands strict proof thereof. ELECTION OF CREDITS In the event that one or more of the multiple defendants sued herein have settled plaintiffs claims against them prior to judgment, Defendant will be entitled to a credit for the amounts paid by settling defendants, or to a set-off in the form of a percentage or pro rata reduction of its liability, if any, to the plaintiff. BEAULITIGATION:1655956.1 13 WHEREFORE, Defendant The Quikrete Companies, LLC respectfully pray that the plaintiff's suit be dismissed, or alternatively that, upon final hearing hereof, plaintiff takes nothing by this suit, that this case be dismissed with prejudice to the refiling of same with all costs taxed against plaintiff plus whatever other and further relief to which Defendant may show itself to be justly entitled. Defendant further prays that its Motion to Retain Bifurcated Trial Rights be granted and that in the event of judgment in favor of plaintiff and against this Defendant, this Defendant should have judgment for contribution and/or indemnity as pled above, together with such other and further relief to which it may show itself justly entitled. Respectfully Submitted, MEHAFFY WEBER, P.C. o By: Lata arbara J. Barro State Bar No. 01817250 Attorney for The Quikrete Companies, LLC P. O. Box 16 Beaumont, Texas 77704 (409) 835-5011 (409) 835-5177 barbarabarron@mehai ‘weber.com CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing instrument has been forwarded to Plaintiff's counsel of record on this the 4th day of September, 2018. BEAULITIGATION:1655956.1 14