Preview
| i UNTO A
7 23401557
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FILED
SHAWN M. RIDLEY, ESQ. SBN 144311
sridley@hrmrlaw.com
VANTHARA MEAK, ESQ. SBN 227441
ALAMEDA COUNTY
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vmeak@hrmrlaw.com
HOWARD ROME MARTIN & RIDLEY LLP JAN-2 8 2021
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1900 O’Farrell Street, Suite 280 io at
San Mateo, CA 94403 CLERK Of THE SUP#HOR COU
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Telephone: (650) 365-7715 . By ony oem 14: “Mh :
Facsimile: (650) 364-5297
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Attorneys for Defendant , '
NOXELL CORPORATION
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
HOWARD ROME MARTIN & RIDLEY LLP
10
11 MEREDITH EGLI, Case No: RG20075272
280
12
SUITE
Plaintiffs, ANSWER TO COMPLAINT FOR
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
PERSONAL INJURY — ASBESTOS
13
STREET,
VS.
14 JOHNSON & JOHNSON, et al.,
1900 O’FARRELL
15 Defendants.
16
COMES NOW, Defendant, NOXELL CORPORATION, and answering on its own behalf
17
Plaintiffs’ unverified Complaint on file herein, and for no other Defendant, admits, denies and
18
alleges as follows:
19
Whenever "Plaintiff" is used in this Answer, its reference embraces each Plaintiff
20
individually, as well as collectively, plus the words, "and each of them.”
21
Whenever “Defendant” is used in this Answer, its reference embraces each of these
22
responding Defendants individually, as well as collectively, plus the words, “and each of them.”
23 r4
Pursuant to California Code of Civil Procedure section 431.30, this Defendant files its?
24
general denial to said Complaint, and denies each and every, all and singular, generally and
25
JAN 2 8 204
specifically, the allegations in said Complaint, and each cause of action thereof, and in this
26
connection, this Defendant denies that Plaintiffs have been injured or damaged in the sums set
1
ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
forth, or in any other sums, or otherwise, or at all, or in any way whatsoever, by any alleged
product attributed to this Defendant, or by reason of any carelessness, negligence and/or any
alleged act, conduct or omission on the part of this answering Defendant.
THIS DEFENDANT HEREWITH PLEADS AN D SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT AS THOUGH PLED SEPARATELY:
FIRST AFFIRMATIVE DEFENSE
As to the Complaint and as to each and every cause of action thereon, this Defendant alleges
that neither the Complaint nor any purported cause of action alleged by the Plaintiffs therein states
ROME MARTIN & RIDLEY LLP
10 facts sufficient to constitute a cause of action against this Defendant.
11 SECOND AFFIRMATIVE DEFENSE
1900 O’FARRELL STREET, SUITE 280
12 Plaintiffs’ action, and each alleged cause of action, is barred by all applicable statutes of
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 limitation including, but not limited to, those stated in California Code of Civil Procedure Sections
14 340.2, 361, 583.210, 583.250, 583.410 and 583.420(a)(1).
15 THIRD AFFIRMATIVE DEFENSE
16 The Complaint and each purported cause of action therein are barred by the doctrine of laches
HOWARD
17 due to Plaintiffs’ unreasonable delay in commencing this action, without good cause, which directly
18 and proximately caused prejudice to this Defendant.
19 . FOURTH AFFIRMATIVE DEFENSE
20 -To the extent that Plaintiffs claim that this Defendant is the successor of another entity, this
21 Defendant alleges that Plaintiffs’ claim of successor liability and association with other entities is
22 not factually or legally supported. Plaintiffs therefore have no claim against this Defendant as
23 asserted.
24 FIFTH AFFIRMATIVE DEFENSE
25 This Defendant denies Plaintiffs ’claim that is it responsible, in whole or in part, for the acts
26 of one or more alternative entities.
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
SIXTH AFFIRMATIVE DEFENSE
To the extent any claim for relief in the Complaint seeks to recover damages against this
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Defendant for alleged acts or omissions of predecessors or successors-in-interest to this Defendant
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of any kind or description, this Defendant asserts that it is not legally responsible and cannot legally
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be held liable for punitive damages and/or exemplary damages that are or may attributable to the
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conduct of any predecessor or successor-in-interest. Further, this Defendant asserts that the conduct
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of any predecessor or successor-in-interest cannot, as a matter of law provide a legal basis for liability
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or the imposition of damages against this Defendant.
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SEVENTH AFFIRMATIVE DEFENSE
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& RIDLEY LLP
10 This answering Defendant made no warranties of any kind, express or implied, to Plaintiffs
11 herein, nor was Plaintiff(s)’ exposure to and/or use of this answering Defendant's products, or the
SUITE 280
12 injuries which allegedly resulted therefrom, foreseeable. Further, there was and is no privity of
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 contract or other relationship between Plaintiffs and this answering Defendant upon which a claim
MARTIN
STREET,
14 of express or implied warranty may be based.
1900 O’FARRELL
15 EIGHTH AFFIRMATIVE DEFENSE
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16 Plaintiffs have waived whatever right they might otherwise have had to claim a breach of
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17 warranty in that Plaintiffs failed to notify this answering Defendant of any alleged breach of express
18 or implied warranty and/or of alleged defects in the products allegedly containing asbestos
19 manufactured or marketed by this answering Defendant within a reasonable time after Plaintiffs had
20 discovered or should have discovered any defect or nonconformity, if any existed, thereby
21 prejudicing this answering Defendant from being able to fully investigate and defend the allegations
22 made against it in the Complaint.
23 NINTH AFFIRMATIVE DEFENSE
24 The Court lacks subject matter jurisdiction over the matters alleged in the Complaint because
25 the Complaint and each alleged cause of action against Defendant is barred by the provisions of
26 California Labor Code, sections 3601 et seg. and the similar laws of other states where Plaintiff
3
ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
claims he was injured. Defendant is entitled to a set-off for any such benefits Plaintiff received.
TENTH AFFIRMATIVE DEFENSE
Defendant alleges that the Complaint, and each cause of action thereof, is barred by California
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Code of Civil Procedure Section 389 because Plaintiffs have failed to join all necessary and
indispensable parties.
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ELEVENTH AFFIRMATIVE DEFENSE
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Plaintiff was negligent in and about the matters alleged in the Complaint and in each alleged
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cause of action; this negligence proximately caused and contributed, in whole or in part, to the
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incidents, injuries, losses and damages, if any, alleged in the Complaint. In the event Plaintiffs are
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& RIDLEY LLP
10 entitled to any damages, the amount of these damages should be reduced by the comparative fault of
11 Plaintiffs and any person whose negligent acts or omissions are imputed to Plaintiffs.
280
12 TWELFTH AFFIRMATIVE DEFENSE
SUITE
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 Any loss, injury or damage incurred by Plaintiffs, if any, was legally caused by the negligent
MARTIN
STREET,
14 or willful acts or omissions of parties, including Plaintiff and his employers other than this
1900 O’FARRELL
15 Defendant, whom Defendant neither controlled nor had the right to control, and was not legally
ROME
16 caused by any acts, omissions or other conduct of Defendant.
HOWARD
17 THIRTEENTH AFFIRMATIVE DEFENSE
18 Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's
19 employers other than this Defendant were negligent in and about the matters referred to in said
20 Complaint, and that such negligence on the part of said employers proximately and concurrently
21 caused and/or contributed to any loss, injuries or damages, including non-economic damages, alleged
22 in the Complaint, if any there were, and that Defendant is not liable for said employers' proportionate
23 share of non-economic damages. \-
24 FOURTEENTH AFFIRMATIVE DEFENSE
25 Defendant alleges that at the time of the injuries alleged in the Complaint, parties other than
26 this Defendant were negligent in and about the matters referred to in said Complaint, and that such
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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
negligence on the part of said parties proximately and concurrently contributed to any loss or damage,
including non-economic damages, alleged in the Complaint, if any there were; and that Defendants
herein shall not be liable for said parties' proportionate share of damages.
FIFTEENTH AFFIRMATIVE DEFENSE
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The products referred to in the Complaint were properly designed and manufactured, and
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were fit for the purpose intended. Said products were misused, abused and/or improperly modified,
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maintained, changed, transformed or altered by Plaintiffs or others. Said misuse, abuse, and/or
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improper modification, maintenance, change, transformation or alteration was not reasonably
foreseeable to Defendant and proximately caused Plaintiffs’ damages, if any there were, thus barring
ROME MARTIN & RIDLEY LLP
10 recovery herein.
11 SIXTEENTH AFFIRMATIVE DEFENSE
280
12 Plaintiff knew, or in the exercise of ordinary care should have known, of the risks and hazards
SUITE
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 involved in the undertaking in which he was engaged. Nevertheless, knowing these things, Plaintiff
STREET,
14 did freely, voluntarily and reasonably consent to assume the risks and hazards incident to said
1900 O’FARRELL
15 operations, acts and conduct at the time and place mentioned in said Complaint, and this undertaking
16 proximately caused and contributed to any loss, injury or damages alleged in the Complaint, if any.
17
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SEVENTEENTH AFFIRMATIVE DEFENSE
18 Defendant alleges that at all relevant times, Plaintiff's employers other than this Defendant
19 and/or any and all unions to which Plaintiff belonged were sophisticated users of asbestos and
20 asbestos-containing products and that said employers’ negligence in providing the products to their
21 employees in a careless and reckless manner and the unions’ failure to provide proper training and/or
22 warnings was a superseding, intervening cause of Plaintiff's injuries, if any.
23 EIGHTEENTH AFFIRMATIVE DEFENSE
24 This Defendant alleges that at all relevant times, Plaintiff was a sophisticated user of
25 asbestos and asbestos-containing products, that Plaintiff was aware or should have been aware of
26 the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a
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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
complete bar to Plaintiffs claims against the Defendant as a matter of law. (Johnson v. American
Standard, Inc. (2008) 43 Cal.4"* 56.)
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NINETEENTH AFFIRMATIVE DEFENSE
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Defendant alleges that at the time and place of the occurrences and injuries alleged in the
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Complaint and at all times material herein, Plaintiff was employed by various employers, the names
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of which are unknown to this Defendant at this time. Defendant further alleges that while working
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within the course and scope of his employments, said employers and Plaintiff were subject to the
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provisions of the Workers’ Compensation Act of the State of California and Plaintiff was entitled to
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receive Workers' Compensation benefits from his employers; that certain sums have been paid to or
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& RIDLEY LLP
10 on behalf of Plaintiff herein under the applicable provisions of the Labor Code of the State of
11 California; that said employers, other than this Defendant, and each of them, were negligent and
1900 O’FARRELL STREET, SUITE 280
12 careless in and about the matters alleged in the Complaint and that such negligence and carelessness
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 proximately and concurrently contributed to and caused the incidents complained of, as well as the
MARTIN
14 injuries and damages allegedly suffered by Plaintiff, if any there were. Accordingly, any judgment
15 rendered in favor of Plaintiffs herein, if any, must be reduced by the amount of any benefits or
ROME
16 payments made to or on behalf of, or to be made to or on behalf of, Plaintiff by his employers’
HOWARD
17 compensation carriers.
18 TWENTIETH AFFIRMATIVE DEFENSE
19 Discovery may show that at the time of the injuries alleged in the Complaint, Plaintiff was
20 employed by and entitled to Workers' Compensation benefits from Defendant; such benefits
21 constitute Plaintiff's exclusive remedy against Defendant pursuant to Labor Code sections 3600, et
22 seq. 7
23 TWENTY-FIRST AFFIRMATIVE DEFENSE
24 Defendant alleges that all of its activities, products, materials and any premises at issue herein
25 were at all times conducted, used, produced, marketed, formulated, sold, distributed and operated in
26 conformity with the existing scientific, medical, industrial hygiene and consumer knowledge, art and
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ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
practice and state-of-the-art.
TWENTY-SECOND AFFIRMATIVE DEFENSE
This answering Defendant alleges that, at all relevant times, it had no knowledge, either actual
or constructive, nor was it known or knowable in light of the generally recognized and prevailing
best scientific and medical knowledge available at the time, that any product allegedly manufactured,
distributed, designed, specified, supplied, applied and/or sold by Defendant could cause or contribute
to the creation of medical conditions or circumstances involving alleged injuries to the lung,
respiratory and cardiovascular systems, including cancer, mesothelioma, or any other illness of any
type whatsoever, related to exposure to asbestos.
ROME MARTIN & RIDLEY LLP
10 TWENTY-THIRD AFFIRMATIVE DEFENSE
11 Defendant alleges that all of its conduct and activities as alleged in Plaintiffs’ Complaint
1900 O’FARRELL STREET, SUITE 280
12 conformed to statutes, governmental regulations and industry standards based upon the state of
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 knowledge existing at all relevant times.
14 | TWENTY-FOURTH AFFIRMATIVE DEFENSE
15 To the extent the Complaint asserts “market share” or “enterprise” liability”, the Complaint
16 fails to state facts sufficient to constitute a cause of action against Defendant.
HOWARD
17 TWENTY-FIFTH AFFIRMATIVE DEFENSE
18 Defendant did not and does not have a substantial percentage of the market for the asbestos-
19 containing product which allegedly caused Plaintiff's injuries. Therefore, Defendant may not be
20 held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable market.
21 TWENTY-SIXTH AFFIRMATIVE DEFENSE
22 Defendant alleges that its products were manufactured, produced, supplied, sold and
23 distributed in mandatory conformity with specifications promulgated by the United States
24 Government under its War Powers, as set forth in the United States Constitution, and that any
25 recovery by Plaintiffs on the Complaint on file herein is barred in consequence of the exercise of
26 those sovereign powers.
ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Defendant alleges that the asbestos, “asbestos products,” or asbestos-containing products,
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allegedly used or in place at any premises for which this Defendant may have any legal
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responsibility were manufactured, packaged, distributed, sold or supplied in accordance with
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contract specifications imposed by the United States Government, by the State of California, by
Plaintiff's employers, by its co-Defendants or by third parties yet to be identified.
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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To the extent that Plaintiffs claim this Defendant is responsible for any asbestos-containing
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product manufactured, distributed, sold or supplied by others, this Defendant denies each and every
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& RIDLEY LLP
10 claim and alleges that no legal duty imposing liability on Defendant under such circumstances
11 exists and that said other entities or persons are legally and solely responsible therefore.
1900 O’FARRELL STREET, SUITE 280
12 TWENTY-NINTH AFFIRMATIVE DEFENSE
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 Plaintiffs failed to exercise due diligence to mitigate Plaintiff's loss, injury or damages;
MARTIN
14 accordingly, the amount of damages to which Plaintiffs are entitled, if any, should be reduced by the
15 amount of damages which would have otherwise been mitigated and Plaintiffs are barred from any
ROME
16 recovery of any injury or damages suffered thereby.
17
HOWARD
THIRTIETH AFFIRMATIVE DEFENSE
18 Defendant had no knowledge that any of the alleged activities of which Plaintiffs complain,
19 and which allegedly were conducted on premises where this Defendant performed work, were
20 unsafe or dangerous, and Defendant therefore did not have a duty to warn Plaintiffs regarding any
21 such alleged dangers.
22 THIRTY-FIRST AFFIRMATIVE DEFENSE
23 The imposition of any punitive damages in this matter would constitute a criminal fine or
24 penalty and should, therefore, be remitted on the ground that the award violates the United States
25 Constitution.
26 ///
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ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS
THIRTY-SECOND AFFIRMATIVE DEFENSE
The claims made by Plaintiffs for punitive damages are unconstitutional under the U.S.
Constitution and the California State Constitution.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts sufficient
to entitle Plaintiffs to an award of punitive damages against this Defendant.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
If Plaintiffs’ claims were already litigated and/or resolved in any prior action, Plaintiffs’
claims are barred based on the primary right, collateral estoppel and res judicata doctrines which
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10 prohibit splitting a single cause of action into successive suits and seeking new recovery for
11 injuries for which the Plaintiffs have been previously compensated by alleged joint tortfeasors.
280
SUITE
12 THIRTY-FIFTH AFFIRMATIVE DEFENSE
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 Defendant denies it is an “alternate entity” with respect to any of the companies so
STREET,
14 designated in the Complaint. Therefore, Defendant has no responsibility for any products
1900 O’FARRELL
15 manufactured or sold by, or any services performed by, such companies.
16 THIRTY-SIXTH AFFIRMATIVE DEFENSE
HOWARD
17 Defendant denies it is a “successor-in-interest” with respect to any of the parties so alleged
18 in the Complaint. Therefore, Defendant has no responsibility for any products manufactured or
19 sold by, or any services performed by, such alleged parties.
20 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
21 Defendant alleges that no conduct by or attributable to it was the cause in fact or the
22 proximate cause of the damages, if any, suffered by Plaintiffs, nor a substantial factor in bringing
23 about said damages.
24 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
25 Defendant alleges that substantial justice requires that pursuant to California Code of Civil
26 Procedure section 410.30, this action should be dismissed or stayed because the facts alleged in the
9
ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS
Complaint occurred outside of California and California is not the appropriate forum for this
action.
THIRTY-NINTH AFFIRMATIVE DEFENSE
Defendant alleges that all or some of the claims and/or legal issues raised in the Complaint
are governed by the substantive laws of a state other than California.
FORTIETH AFFIRMATIVE DEFENSE
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Defendant is informed and believes that Plaintiffs have or had another action pending on
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the same cause of action, arising from the same occurrences or series of occurrences alleged herein,
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and alleging the same and/or related injuries as those injuries alleged herein. Accordingly,
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10 Plaintiffs are improperly splitting the cause of action and this action is barred or should be stayed,
11 abated or dismissed.
1900 O’FARRELL STREET, SUITE 280
12 FORTY-FIRST AFFIRMATIVE DEFENSE
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
13 Defendant will assert any and all additional defenses that arise during the course of this
14 litigation and reserves the right to amend its Answer to assert such defenses.
15 FORTY-SECOND AFFIRMATIVE DEFENSE
16 Defendant alleges that it acted solely under the direction of a federal officer and pursuant to
17
HOWARD
reasonably precise specifications of the United States government and properly performed all work
18 thereunder according to such specifications in manufacturing and distributing any products for
19 which s allege caused injury to Plaintiffs. Defendant further alleges that it provided any and all
20 warnings required by said specifications and federal officer and that the United States government
21 had knowledge of any health hazards relating to the handling and use of said products which were
22 superior to that of this answering Defendant and that this answering Defendant is therefore immune
23 to suit under the military contractor immunity doctrine as set forth in Boyle v. United Tech. Corp.,
24 487 U.S. 500 (1988), and Sundstrom v. McDonnell Douglas Corp., 816 F.Supp. 587 (N.D. Cal.
25 1993).
26 Mf
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ANSWER TO COMPLAINT FOR PERSONAL INJURY —- ASBESTOS
WHEREFORE, Defendant prays:
1. That Plaintiffs take nothing by their Complaint;
2. That judgment be entered in favor of Defendant;
3. For recovery of Defendant's costs of suit; |
4. For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits as alleged above; and
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5. For such other and further relief as the Court deems just and proper.
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NOTICE OF REQUEST FOR JURY TRIAL:
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Pursuant to California Code of Civil Procedure §631, Defendant hereby gives notice of its
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ROME MARTIN & RIDLEY LLP
10 request for trial by jury. .
11 DATED: January 27, 2021
1900 O’FARRELL STREET, SUITE 280
12 HOWARD ROME MARTIN & RIDLEY LLP
TELEPHONE (650) 365-7715
SAN MATEO, CA 94403
.13
14 By: /s/ Vanthara Meak
SHAWN M. RIDLEY SBN 144311
Preview
| i UNTO A 7 23401557 \ FILED SHAWN M. RIDLEY, ESQ. SBN 144311 sridley@hrmrlaw.com VANTHARA MEAK, ESQ. SBN 227441 ALAMEDA COUNTY NN vmeak@hrmrlaw.com HOWARD ROME MARTIN & RIDLEY LLP JAN-2 8 2021 WwW 1900 O’Farrell Street, Suite 280 io at San Mateo, CA 94403 CLERK Of THE SUP#HOR COU & Telephone: (650) 365-7715 . By ony oem 14: “Mh : Facsimile: (650) 364-5297 nm Attorneys for Defendant , ' NOXELL CORPORATION a IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA HOWARD ROME MARTIN & RIDLEY LLP 10 11 MEREDITH EGLI, Case No: RG20075272 280 12 SUITE Plaintiffs, ANSWER TO COMPLAINT FOR TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 PERSONAL INJURY — ASBESTOS 13 STREET, VS. 14 JOHNSON & JOHNSON, et al., 1900 O’FARRELL 15 Defendants. 16 COMES NOW, Defendant, NOXELL CORPORATION, and answering on its own behalf 17 Plaintiffs’ unverified Complaint on file herein, and for no other Defendant, admits, denies and 18 alleges as follows: 19 Whenever "Plaintiff" is used in this Answer, its reference embraces each Plaintiff 20 individually, as well as collectively, plus the words, "and each of them.” 21 Whenever “Defendant” is used in this Answer, its reference embraces each of these 22 responding Defendants individually, as well as collectively, plus the words, “and each of them.” 23 r4 Pursuant to California Code of Civil Procedure section 431.30, this Defendant files its? 24 general denial to said Complaint, and denies each and every, all and singular, generally and 25 JAN 2 8 204 specifically, the allegations in said Complaint, and each cause of action thereof, and in this 26 connection, this Defendant denies that Plaintiffs have been injured or damaged in the sums set 1 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS forth, or in any other sums, or otherwise, or at all, or in any way whatsoever, by any alleged product attributed to this Defendant, or by reason of any carelessness, negligence and/or any alleged act, conduct or omission on the part of this answering Defendant. THIS DEFENDANT HEREWITH PLEADS AN D SETS FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION OF PLAINTIFFS’ COMPLAINT AS THOUGH PLED SEPARATELY: FIRST AFFIRMATIVE DEFENSE As to the Complaint and as to each and every cause of action thereon, this Defendant alleges that neither the Complaint nor any purported cause of action alleged by the Plaintiffs therein states ROME MARTIN & RIDLEY LLP 10 facts sufficient to constitute a cause of action against this Defendant. 11 SECOND AFFIRMATIVE DEFENSE 1900 O’FARRELL STREET, SUITE 280 12 Plaintiffs’ action, and each alleged cause of action, is barred by all applicable statutes of TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 limitation including, but not limited to, those stated in California Code of Civil Procedure Sections 14 340.2, 361, 583.210, 583.250, 583.410 and 583.420(a)(1). 15 THIRD AFFIRMATIVE DEFENSE 16 The Complaint and each purported cause of action therein are barred by the doctrine of laches HOWARD 17 due to Plaintiffs’ unreasonable delay in commencing this action, without good cause, which directly 18 and proximately caused prejudice to this Defendant. 19 . FOURTH AFFIRMATIVE DEFENSE 20 -To the extent that Plaintiffs claim that this Defendant is the successor of another entity, this 21 Defendant alleges that Plaintiffs’ claim of successor liability and association with other entities is 22 not factually or legally supported. Plaintiffs therefore have no claim against this Defendant as 23 asserted. 24 FIFTH AFFIRMATIVE DEFENSE 25 This Defendant denies Plaintiffs ’claim that is it responsible, in whole or in part, for the acts 26 of one or more alternative entities. ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS SIXTH AFFIRMATIVE DEFENSE To the extent any claim for relief in the Complaint seeks to recover damages against this LD Defendant for alleged acts or omissions of predecessors or successors-in-interest to this Defendant WW of any kind or description, this Defendant asserts that it is not legally responsible and cannot legally FSF be held liable for punitive damages and/or exemplary damages that are or may attributable to the Wn conduct of any predecessor or successor-in-interest. Further, this Defendant asserts that the conduct Dn of any predecessor or successor-in-interest cannot, as a matter of law provide a legal basis for liability AN or the imposition of damages against this Defendant. on SEVENTH AFFIRMATIVE DEFENSE \o & RIDLEY LLP 10 This answering Defendant made no warranties of any kind, express or implied, to Plaintiffs 11 herein, nor was Plaintiff(s)’ exposure to and/or use of this answering Defendant's products, or the SUITE 280 12 injuries which allegedly resulted therefrom, foreseeable. Further, there was and is no privity of TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 contract or other relationship between Plaintiffs and this answering Defendant upon which a claim MARTIN STREET, 14 of express or implied warranty may be based. 1900 O’FARRELL 15 EIGHTH AFFIRMATIVE DEFENSE ROME 16 Plaintiffs have waived whatever right they might otherwise have had to claim a breach of HOWARD 17 warranty in that Plaintiffs failed to notify this answering Defendant of any alleged breach of express 18 or implied warranty and/or of alleged defects in the products allegedly containing asbestos 19 manufactured or marketed by this answering Defendant within a reasonable time after Plaintiffs had 20 discovered or should have discovered any defect or nonconformity, if any existed, thereby 21 prejudicing this answering Defendant from being able to fully investigate and defend the allegations 22 made against it in the Complaint. 23 NINTH AFFIRMATIVE DEFENSE 24 The Court lacks subject matter jurisdiction over the matters alleged in the Complaint because 25 the Complaint and each alleged cause of action against Defendant is barred by the provisions of 26 California Labor Code, sections 3601 et seg. and the similar laws of other states where Plaintiff 3 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS claims he was injured. Defendant is entitled to a set-off for any such benefits Plaintiff received. TENTH AFFIRMATIVE DEFENSE Defendant alleges that the Complaint, and each cause of action thereof, is barred by California Ww Code of Civil Procedure Section 389 because Plaintiffs have failed to join all necessary and indispensable parties. ws ELEVENTH AFFIRMATIVE DEFENSE NWN Plaintiff was negligent in and about the matters alleged in the Complaint and in each alleged sy cause of action; this negligence proximately caused and contributed, in whole or in part, to the CO incidents, injuries, losses and damages, if any, alleged in the Complaint. In the event Plaintiffs are Oo & RIDLEY LLP 10 entitled to any damages, the amount of these damages should be reduced by the comparative fault of 11 Plaintiffs and any person whose negligent acts or omissions are imputed to Plaintiffs. 280 12 TWELFTH AFFIRMATIVE DEFENSE SUITE TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 Any loss, injury or damage incurred by Plaintiffs, if any, was legally caused by the negligent MARTIN STREET, 14 or willful acts or omissions of parties, including Plaintiff and his employers other than this 1900 O’FARRELL 15 Defendant, whom Defendant neither controlled nor had the right to control, and was not legally ROME 16 caused by any acts, omissions or other conduct of Defendant. HOWARD 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's 19 employers other than this Defendant were negligent in and about the matters referred to in said 20 Complaint, and that such negligence on the part of said employers proximately and concurrently 21 caused and/or contributed to any loss, injuries or damages, including non-economic damages, alleged 22 in the Complaint, if any there were, and that Defendant is not liable for said employers' proportionate 23 share of non-economic damages. \- 24 FOURTEENTH AFFIRMATIVE DEFENSE 25 Defendant alleges that at the time of the injuries alleged in the Complaint, parties other than 26 this Defendant were negligent in and about the matters referred to in said Complaint, and that such 4 ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS negligence on the part of said parties proximately and concurrently contributed to any loss or damage, including non-economic damages, alleged in the Complaint, if any there were; and that Defendants herein shall not be liable for said parties' proportionate share of damages. FIFTEENTH AFFIRMATIVE DEFENSE > The products referred to in the Complaint were properly designed and manufactured, and WN were fit for the purpose intended. Said products were misused, abused and/or improperly modified, HD maintained, changed, transformed or altered by Plaintiffs or others. Said misuse, abuse, and/or SN improper modification, maintenance, change, transformation or alteration was not reasonably foreseeable to Defendant and proximately caused Plaintiffs’ damages, if any there were, thus barring ROME MARTIN & RIDLEY LLP 10 recovery herein. 11 SIXTEENTH AFFIRMATIVE DEFENSE 280 12 Plaintiff knew, or in the exercise of ordinary care should have known, of the risks and hazards SUITE TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 involved in the undertaking in which he was engaged. Nevertheless, knowing these things, Plaintiff STREET, 14 did freely, voluntarily and reasonably consent to assume the risks and hazards incident to said 1900 O’FARRELL 15 operations, acts and conduct at the time and place mentioned in said Complaint, and this undertaking 16 proximately caused and contributed to any loss, injury or damages alleged in the Complaint, if any. 17 HOWARD SEVENTEENTH AFFIRMATIVE DEFENSE 18 Defendant alleges that at all relevant times, Plaintiff's employers other than this Defendant 19 and/or any and all unions to which Plaintiff belonged were sophisticated users of asbestos and 20 asbestos-containing products and that said employers’ negligence in providing the products to their 21 employees in a careless and reckless manner and the unions’ failure to provide proper training and/or 22 warnings was a superseding, intervening cause of Plaintiff's injuries, if any. 23 EIGHTEENTH AFFIRMATIVE DEFENSE 24 This Defendant alleges that at all relevant times, Plaintiff was a sophisticated user of 25 asbestos and asbestos-containing products, that Plaintiff was aware or should have been aware of 26 the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a 5 ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS complete bar to Plaintiffs claims against the Defendant as a matter of law. (Johnson v. American Standard, Inc. (2008) 43 Cal.4"* 56.) bd NINETEENTH AFFIRMATIVE DEFENSE Ww Defendant alleges that at the time and place of the occurrences and injuries alleged in the -&- Complaint and at all times material herein, Plaintiff was employed by various employers, the names GN of which are unknown to this Defendant at this time. Defendant further alleges that while working NHN within the course and scope of his employments, said employers and Plaintiff were subject to the ~ provisions of the Workers’ Compensation Act of the State of California and Plaintiff was entitled to Oo receive Workers' Compensation benefits from his employers; that certain sums have been paid to or Oo & RIDLEY LLP 10 on behalf of Plaintiff herein under the applicable provisions of the Labor Code of the State of 11 California; that said employers, other than this Defendant, and each of them, were negligent and 1900 O’FARRELL STREET, SUITE 280 12 careless in and about the matters alleged in the Complaint and that such negligence and carelessness TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 proximately and concurrently contributed to and caused the incidents complained of, as well as the MARTIN 14 injuries and damages allegedly suffered by Plaintiff, if any there were. Accordingly, any judgment 15 rendered in favor of Plaintiffs herein, if any, must be reduced by the amount of any benefits or ROME 16 payments made to or on behalf of, or to be made to or on behalf of, Plaintiff by his employers’ HOWARD 17 compensation carriers. 18 TWENTIETH AFFIRMATIVE DEFENSE 19 Discovery may show that at the time of the injuries alleged in the Complaint, Plaintiff was 20 employed by and entitled to Workers' Compensation benefits from Defendant; such benefits 21 constitute Plaintiff's exclusive remedy against Defendant pursuant to Labor Code sections 3600, et 22 seq. 7 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 24 Defendant alleges that all of its activities, products, materials and any premises at issue herein 25 were at all times conducted, used, produced, marketed, formulated, sold, distributed and operated in 26 conformity with the existing scientific, medical, industrial hygiene and consumer knowledge, art and 6 ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS practice and state-of-the-art. TWENTY-SECOND AFFIRMATIVE DEFENSE This answering Defendant alleges that, at all relevant times, it had no knowledge, either actual or constructive, nor was it known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time, that any product allegedly manufactured, distributed, designed, specified, supplied, applied and/or sold by Defendant could cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lung, respiratory and cardiovascular systems, including cancer, mesothelioma, or any other illness of any type whatsoever, related to exposure to asbestos. ROME MARTIN & RIDLEY LLP 10 TWENTY-THIRD AFFIRMATIVE DEFENSE 11 Defendant alleges that all of its conduct and activities as alleged in Plaintiffs’ Complaint 1900 O’FARRELL STREET, SUITE 280 12 conformed to statutes, governmental regulations and industry standards based upon the state of TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 knowledge existing at all relevant times. 14 | TWENTY-FOURTH AFFIRMATIVE DEFENSE 15 To the extent the Complaint asserts “market share” or “enterprise” liability”, the Complaint 16 fails to state facts sufficient to constitute a cause of action against Defendant. HOWARD 17 TWENTY-FIFTH AFFIRMATIVE DEFENSE 18 Defendant did not and does not have a substantial percentage of the market for the asbestos- 19 containing product which allegedly caused Plaintiff's injuries. Therefore, Defendant may not be 20 held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable market. 21 TWENTY-SIXTH AFFIRMATIVE DEFENSE 22 Defendant alleges that its products were manufactured, produced, supplied, sold and 23 distributed in mandatory conformity with specifications promulgated by the United States 24 Government under its War Powers, as set forth in the United States Constitution, and that any 25 recovery by Plaintiffs on the Complaint on file herein is barred in consequence of the exercise of 26 those sovereign powers. ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS TWENTY-SEVENTH AFFIRMATIVE DEFENSE Defendant alleges that the asbestos, “asbestos products,” or asbestos-containing products, NN allegedly used or in place at any premises for which this Defendant may have any legal Ww responsibility were manufactured, packaged, distributed, sold or supplied in accordance with &e contract specifications imposed by the United States Government, by the State of California, by Plaintiff's employers, by its co-Defendants or by third parties yet to be identified. DN TWENTY-EIGHTH AFFIRMATIVE DEFENSE NS To the extent that Plaintiffs claim this Defendant is responsible for any asbestos-containing Oo product manufactured, distributed, sold or supplied by others, this Defendant denies each and every oO & RIDLEY LLP 10 claim and alleges that no legal duty imposing liability on Defendant under such circumstances 11 exists and that said other entities or persons are legally and solely responsible therefore. 1900 O’FARRELL STREET, SUITE 280 12 TWENTY-NINTH AFFIRMATIVE DEFENSE TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 Plaintiffs failed to exercise due diligence to mitigate Plaintiff's loss, injury or damages; MARTIN 14 accordingly, the amount of damages to which Plaintiffs are entitled, if any, should be reduced by the 15 amount of damages which would have otherwise been mitigated and Plaintiffs are barred from any ROME 16 recovery of any injury or damages suffered thereby. 17 HOWARD THIRTIETH AFFIRMATIVE DEFENSE 18 Defendant had no knowledge that any of the alleged activities of which Plaintiffs complain, 19 and which allegedly were conducted on premises where this Defendant performed work, were 20 unsafe or dangerous, and Defendant therefore did not have a duty to warn Plaintiffs regarding any 21 such alleged dangers. 22 THIRTY-FIRST AFFIRMATIVE DEFENSE 23 The imposition of any punitive damages in this matter would constitute a criminal fine or 24 penalty and should, therefore, be remitted on the ground that the award violates the United States 25 Constitution. 26 /// 8 ANSWER TO COMPLAINT FOR PERSONAL INJURY — ASBESTOS THIRTY-SECOND AFFIRMATIVE DEFENSE The claims made by Plaintiffs for punitive damages are unconstitutional under the U.S. Constitution and the California State Constitution. THIRTY-THIRD AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged therein states facts sufficient to entitle Plaintiffs to an award of punitive damages against this Defendant. THIRTY-FOURTH AFFIRMATIVE DEFENSE If Plaintiffs’ claims were already litigated and/or resolved in any prior action, Plaintiffs’ claims are barred based on the primary right, collateral estoppel and res judicata doctrines which ROME MARTIN & RIDLEY LLP 10 prohibit splitting a single cause of action into successive suits and seeking new recovery for 11 injuries for which the Plaintiffs have been previously compensated by alleged joint tortfeasors. 280 SUITE 12 THIRTY-FIFTH AFFIRMATIVE DEFENSE TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 Defendant denies it is an “alternate entity” with respect to any of the companies so STREET, 14 designated in the Complaint. Therefore, Defendant has no responsibility for any products 1900 O’FARRELL 15 manufactured or sold by, or any services performed by, such companies. 16 THIRTY-SIXTH AFFIRMATIVE DEFENSE HOWARD 17 Defendant denies it is a “successor-in-interest” with respect to any of the parties so alleged 18 in the Complaint. Therefore, Defendant has no responsibility for any products manufactured or 19 sold by, or any services performed by, such alleged parties. 20 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 21 Defendant alleges that no conduct by or attributable to it was the cause in fact or the 22 proximate cause of the damages, if any, suffered by Plaintiffs, nor a substantial factor in bringing 23 about said damages. 24 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 25 Defendant alleges that substantial justice requires that pursuant to California Code of Civil 26 Procedure section 410.30, this action should be dismissed or stayed because the facts alleged in the 9 ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ ASBESTOS Complaint occurred outside of California and California is not the appropriate forum for this action. THIRTY-NINTH AFFIRMATIVE DEFENSE Defendant alleges that all or some of the claims and/or legal issues raised in the Complaint are governed by the substantive laws of a state other than California. FORTIETH AFFIRMATIVE DEFENSE N Defendant is informed and believes that Plaintiffs have or had another action pending on NS the same cause of action, arising from the same occurrences or series of occurrences alleged herein, Oo and alleging the same and/or related injuries as those injuries alleged herein. Accordingly, Oo ROME MARTIN & RIDLEY LLP 10 Plaintiffs are improperly splitting the cause of action and this action is barred or should be stayed, 11 abated or dismissed. 1900 O’FARRELL STREET, SUITE 280 12 FORTY-FIRST AFFIRMATIVE DEFENSE TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 13 Defendant will assert any and all additional defenses that arise during the course of this 14 litigation and reserves the right to amend its Answer to assert such defenses. 15 FORTY-SECOND AFFIRMATIVE DEFENSE 16 Defendant alleges that it acted solely under the direction of a federal officer and pursuant to 17 HOWARD reasonably precise specifications of the United States government and properly performed all work 18 thereunder according to such specifications in manufacturing and distributing any products for 19 which s allege caused injury to Plaintiffs. Defendant further alleges that it provided any and all 20 warnings required by said specifications and federal officer and that the United States government 21 had knowledge of any health hazards relating to the handling and use of said products which were 22 superior to that of this answering Defendant and that this answering Defendant is therefore immune 23 to suit under the military contractor immunity doctrine as set forth in Boyle v. United Tech. Corp., 24 487 U.S. 500 (1988), and Sundstrom v. McDonnell Douglas Corp., 816 F.Supp. 587 (N.D. Cal. 25 1993). 26 Mf 10 ANSWER TO COMPLAINT FOR PERSONAL INJURY —- ASBESTOS WHEREFORE, Defendant prays: 1. That Plaintiffs take nothing by their Complaint; 2. That judgment be entered in favor of Defendant; 3. For recovery of Defendant's costs of suit; | 4. For appropriate credits and set-offs arising out of any payment of Workers’ Compensation benefits as alleged above; and NHN 5. For such other and further relief as the Court deems just and proper. ns NOTICE OF REQUEST FOR JURY TRIAL: oO Pursuant to California Code of Civil Procedure §631, Defendant hereby gives notice of its ‘Oo ROME MARTIN & RIDLEY LLP 10 request for trial by jury. . 11 DATED: January 27, 2021 1900 O’FARRELL STREET, SUITE 280 12 HOWARD ROME MARTIN & RIDLEY LLP TELEPHONE (650) 365-7715 SAN MATEO, CA 94403 .13 14 By: /s/ Vanthara Meak SHAWN M. RIDLEY SBN 144311