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Keith M. Ameele, Esq. SBN: 221927
kameele@foleymansfield.com
Kimberly L. Rivera, Esq. SBN: 205528 | E D
krivera@foleymansfield.com
Jonathan J. Kim (SBN 322421) ALAMEDA COUNTY
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jkim@foleymansfield.com
FOLEY & MANSFIELD, PLLP MAY 1 4 2021
300 South Grand Avenue, Suite 2800 ; purr
Los Angeles, CA 90071 . ' CLERK OF p
Telephone (213) 283-2100 By () Kis
Facsimile (213) 283-2101
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Attorneys for Defendant
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COLGATE-PALMOLIVE COMPANY
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 FOR THE COUNTY OF ALAMEDA
1]
12 MEREDITH A. EGLI, Case No.: RG20075272
[Assigned to Hon. Jo-Lynne Q. Lee, Dept. 18]
13 Plaintiff,
DEFENDANT COLGATE-PALMOLIVE
14 VS. COMPANY’S ANSWER TO PLAINTIFF’S
FIRST AMENDED COMPLAINT FOR
15 JOHNSON & JOHNSON, et al., PERSONAL INJURIES; DEMAND FOR
JURY TRIAL
16 Defendants.
17
1° AC Filed: April 12, 2021
18 Complaint Filed: September 30, 2020
Trial Date: None Set
19
20
2] Defendant COLGATE-PALMOLIVE COMPANY (“Defendant”), in answer to the first
22 amended complaint of plaintiff MEREDITH EGLI (‘Plaintiff’), admits, denies and alleges as
23 follows:
24 Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant
25 denies each and every, all and singular, both generally and specifically, the allegations of Plaintiff's
26 unverified complaint, and further denies that Plaintiff has been damaged as alleged, or at all, by
27 reason of any act or omission on the part of Defendant or its agents, servants or employees.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
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FIRSTAFFIRMATIVE DEFENSE
This Court lacks personal jurisdiction over Defendant.
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff is not entitled to the damages claimed or to the relief demanded.
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SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
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neither the Complaint, nor any purported cause of action alleged therein, states facts sufficient to
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constitute a cause of action against Defendant under any legal theory.
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10 THIRD AFFIRMATIVE DEFENSE
1] AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
13 the Complaint, and each purported cause of action, is uncertain and ambiguous as it relates to
14 Defendant.
15 FOURTH AFFIRMATIVE DEFENSE
16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
17 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
18 the Complaint, and each purported cause of action fails to state a cognizable claim for the recovery
19 of damages against Defendant, including, but not limited to, recovery of punitive damages and
20 prejudgment interest.
21 FIFTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
24 the Complaint, and/or each purported cause of action against Defendant, is barred by the applicable
25 statutes of repose and/or statutes of limitations, including but not limited to California Code of Civil
26 Procedure §§ 335.1, 338(a), 338(d), 339(1), 340.2, 361, 583.210, 583.250, 583.310, and
27 583.420(a)(1). |
28 HI!
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
Plaintiff has failed to join all indispensable parties, and, therefore complete relief cannot be afforded
to the parties in this action and will result in prejudice in any future litigation.
SEVENTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery against Defendant is barred as to any non-economic
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damages except those allocated to Defendant in direct proportion to its percentage of fault, if any.
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10 EIGHTH AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that the provisions of California Civil Code § 1431.2 (commonly referred to as
13 “Proposition 51”) are applicable to Plaintiff's Complaint and to each cause of action therein.
14 NINTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
17 extent that Plaintiff has released, settled or entered into an accord and satisfaction or otherwise
18 compromised her claims, and, therefore said claims are barred by operation of law, or in the
19 alternative, Plaintiff has accepted payment for partial settlement, and therefore Defendant is entitled
20 to a set-off.
21 TENTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that
24 Plaintiff failed to take reasonable actions to avoid or mitigate her alleged damages, if any.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
27 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced by
28 the doctrine of laches in that Plaintiff waited an unreasonable period of time to file this action and
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
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that this prejudicial delay has worked to the detriment of Defendant.
TWELFTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced by
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virtue of Plaintiff and/or her agents’ unlawful, careless, negligent, and other wrongful conduct, such
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that Plaintiff is not entitled to any of the relief sought against Defendant, under the equitable doctrine
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of unclean hands.
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THIRTEENTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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10 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced in
11 that Plaintiff and/or her agents expressly or impliedly waived any rights they may have had by their
12 acts, conduct, and/or omissions.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
15 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced to the
16 extent Plaintiff consented to the acts and/or omissions of Defendant as alleged in the Complaint.
17 FIFTEENTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced by the
20 doctrines of waiver and estoppel.
21 SIXTEENTH AFFIRMAT IVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that Plaintiff's claims against Defendant are barred in whole or in part by
24 Plaintiff's contributory and/or comparative fault, because the damages, if any, were legally caused
25 by and are the result, in whole or part, of her own carelessness, recklessness, negligent acts and/or
26 omissions or failure to act reasonably. Accordingly, any recovery by Plaintiff against Defendant is
27 barred, or in the alternative, is comparatively reduced by Plaintiff's percentage of fault.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
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SEVENTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's claims against Defendant are barred in whole or in part on the
grounds that Plaintiff's employers knew, or in the exercise of ordinary care should have known the
risk of the injuries or damages alleged in the Complaint, if any, and nevertheless did freely and
voluntarily assume said risk, and this undertaking proximately caused and contributed to the losses,
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injuries or damages, if any alleged by Plaintiff.
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EIGHTEENTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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10 Defendant alleges that Plaintiff is barred from recovery against Defendant in that if Plaintiff suffered
11 any loss or damage, such loss or damage was the direct and proximate cause of the misuse of the
12 product or equipment at issue by Plaintiff or persons other than Defendant, and said misuse was
13 unreasonable and not reasonably foreseeable at the time the product(s) or equipment was sold.
14 NINETEENTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
17 extent that the dangers, if any, associated with the product(s) or equipment referenced in the
18 Complaint were not unreasonable and/or constituted commonly known dangers.
19 TWENTIETH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that Plaintiff is barred from recovery in that if she sustained any loss or damage,
22 such loss or damage was not directly or proximately caused by the acts or omissions of Defendant.
23 TWENTY-FIRST AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
26 extent that Plaintiff never worked with, near or around any product(s) and/or equipment supplied by
27 Defendant and therefore was not harmed by such product(s) and/or equipment.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
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TWENTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery against DEFENDANT is barred, diminished or reduced in
that other person(s) and/or entity(ies), whose true names and/or capacities are unknown to
Defendant, are in some manner responsible for or at fault in proximately causing the damage
allegedly sustained by Plaintiff, and therefore the damages, if any, should be apportioned in
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proportion to the relative fault, if any, of each other person or entity, including but not limited to co-
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defendants, settling and dismissed co-defendants, third-party defendants, bankrupt or insolvent
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entities, settling and other non-parties, and other responsible persons or entities.
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10 TWENTY-THIRD AFFIRMATIVE DEFENSE
11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
13 extent that her alleged damages were caused by unforeseeable acts or omissions and Defendant
14 exercised due care with respect to foreseeable acts and omissions.
15 TWENTY-FOURTH AFFIRMATIVE DEFENSE
16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
17 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
18 extent the damages alleged in the Complaint were unavoidable.
19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
22 extent the loss or injury suffered by Plaintiff, if any, was caused by an idiosyncratic condition for
23 which Defendant could not have taken any steps to avoid.
24 TWENTY-SIXTH AFFIRMATIVE DEFENSE
25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
26 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
27 extent her damages were proximately caused by an act of God.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
extent that the dangers, if any, associated with the product(s) and/or equipment referenced in the
Complaint constitute an unavoidably unsafe product or piece of equipment.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that
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Plaintiff is attempting to assert that Defendant is liable as an agent, servant, employee and/or joint
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10 venturer, or as successor, successor in business, successor in product line or a portion thereof, assign,
11 predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter
12 ego, subsidiary, whole or partial owner, wholly or partially owned entity, or member of any group
13 engaged in funding, researching, processing, constructing, analyzing, merchandising, supplying,
14 studying, testing, designing, labeling, manufacturing, distributing, marketing, warning, warranting,
15 rebranding, leasing, buying, selling, inspecting, or servicing of a certain substance, the generic name
16 of which is asbestos and/or products containing asbestos.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiff is barred from recovery against Defendant by the exclusive remedy
20 provisions under the California Workers’ Compensation Act, including but not limited to Labor
21 Code §§ 3600, 3600.5, 2601, and 3602, or similar laws of another jurisdiction.
22 THIRTIETH AFFIRMATIVE DEFENSE
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 Defendant alleges that Plaintiff’s recovery against Defendant is barred, diminished or reduced to the
25 extent the Plaintiff received Workers’ Compensation payments for the injuries alleged in the
26 Complaint. To the extent any such payments have been made, Defendant is entitled to an offset in
27 the amount of all such benefits against any damages awarded to Plaintiff.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
THIRTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
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extent that there is no possibility of an alternate safer design for the product(s) or equipment
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referenced in the Complaint, and that the risk of danger, if any, is inherent in said product(s) or
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equipment.
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THIRTY-SECOND AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that the dangerous condition as set forth in the Complaint did not exist. If
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10 however, such dangerous condition did, in fact, exist, Defendant had no knowledge or adequate
1] knowledge of it, having exercised reasonable care in inspecting its product(s) or equipment.
12 THIRTY-THIRD AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that the alleged condition of the product set forth in the Complaint did not
15 constitute a substantial risk of injury; but if any risk of injury did exist, it constituted merely a minor,
16 trivial or insignificant risk which did not create a dangerous condition in its product(s) or equipment,
17 and therefore Defendant is not liable for Plaintiffs alleged damages.
18 THIRTY-FOURTH AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
20 Defendant alleges that Plaintiff’s recovery is barred, diminished or reduced to the extent that
21 Plaintiffs employer(s) were provided with and were aware of adequate warnings issued by
22 Defendant and others for product(s) and/or equipment supplied to them. Further, Plaintiff, and/or
23 her employer(s) who received product(s) and/or equipment alleged to have been supplied by
24 Defendant, were aware of the proper handling, care and risk of said products or materials, and failed
25 to heed said warnings and/or to advise her employees of the same. The acts and omissions of
26 Plaintiff, her employer(s), and others in this regard proximately caused Plaintiff's damages and
27 injuries, if any.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
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THIRTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that neither
Plaintiff, nor Plaintiff’s employers, justifiably relied on any alleged misrepresentation of Defendant,
nor did Defendant influence the subsequent purchase of, or use of product(s) and/or equipment
referred to in the Complaint.
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THIRTY-SIXTH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff’s recovery against Defendant is barred, diminished or reduced on the
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10 grounds that all conduct and activities of Defendant alleged in the Complaint conformed to statutes,
11 government regulations, industry standards and the state of knowledge at the time all times relevant
12 in the Complaint.
13 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
15 Defendant alleges that the product(s) or equipment referred to in Plaintiffs Complaint which may
16 have been manufactured or distributed by this Defendant, were manufactured and/or distributed in
17 accordance with specifications and requirements supplied to this Defendant by individuals or entities
18 including, but not limited to, the United States of America. The alleged defect, if any, in said
19 product(s) or equipment was, therefore, caused by said mandatory specifications and requirements
20 and the alleged defect was neither known to, nor discoverable by this Defendant with the exercise of
21 reasonable care.
22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the
25 extent the Complaint seeks recovery under the theory of “enterprise,” “industry-wide,” “alternate” or
26 “market share” (collectively referred to hereafter as “market share”) liability, and furthermore, the
27 essential elements of a cause of action premised on a market share theory of liability do not exist
28 between Plaintiff and Defendant.
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 vi
THIRTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the Complaint fails to allege facts sufficient to constitute a cause of action
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based upon market share liability and/or enterprise liability and therefore, violates the guarantees of
due process of law and equal protection of the laws guaranteed by the United States and California
Constitutions, and such violations bar Plaintiff's recovery or judgment against Defendant.
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FORTIETH AFFIRMATIVE DEFENSE
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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff’s recovery is barred, diminished or reduced to the extent that
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10 Plaintiff failed to, and cannot identify the product(s) and/or equipment, and the toxins within said
1] product(s) and/or equipment, to which Plaintiff was exposed.
12 FORTY-FIRST AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that the
15 benefits of Defendant’s product(s) or equipment, if any, outweighed the risk of danger inherent in
16 said product or material.
17 FORTY-SECOND AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that
20 Plaintiff cannot show that the product(s) or equipment supplied by Defendant, if any, in all
21 reasonable medical probability, was a substantial factor in increasing the risk of bringing about the
22 injuries or damages complained of by Plaintiff.
23 FORTY-THIRD AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 Defendant alleges that the items which may have been manufactured or distributed by this
26 Defendant, were manufactured and/or distributed in accordance with specifications and requirements
27 supplied to this Defendant by individuals or entities including, but not limited to, the United States
28 of America. The alleged defect, if any, in said product was, therefore, caused by said mandatory
10
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
$077122 v1
specifications and requirements and the alleged defect was neither known to nor discoverable by this
Defendant with the exercise of reasonable care.
FORTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's recovery is barred to the extent that Plaintiff's injuries occurred on
a federal enclave or while working under the direction of a federal officer.
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FORTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that Plaintiff’s recovery is barred to the extent that Plaintiff's claims arise under
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10 the Constitution, treaties, laws of the United States, and/or admiralty or maritime law.
11 FORTY-SIXTH AFFIRMATIVE DEFENSE
12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
13 Defendant alleges that Plaintiffs recovery is barred to the extent that the venue is improper.
14 . FORTY-SEVENTH AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that Plaintiff's recovery is barred to the extent that the forum is improper.
17 FORTY-EIGHTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that Plaintiffs causes of action and claims are governed by the laws of another
20 state.
21 FORTY-NINTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that Plaintiff lacks legal capacity to sue and is not a real party in interest and is
24 thereby precluded from any recovery whatsoever.
25 FIFTIETH AFFIRMATIVE DEFENSE
26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
27 Defendant alleges that pursuant to the equitable doctrine of forum non conveniens and California
28 Code of Civil Procedure § 410.30, California is an improper forum of this action because in the
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1 °
interests of fairness and convenience, this action should be appropriately and justly tried in a forum
outside California.
FIFTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's claims are barred by the doctrines of res judicata and collateral
estoppel, and by the rule against splitting a cause of action.
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FIFTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that in the event Defendant is held liable to Plaintiff, which liability is expressly
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10 denied herein, any other co-defendants are likewise held liable, Defendant is entitled to a percentage
1 contribution of the total liability from said-co-defendants in accordance with the principles of
12 equitable indemnity and comparative contribution.
13 FIFTY-THIRD AFFIRMATIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
15 Defendant alleges that it does not have and never has had a successor, successor-in-business,
16 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
17 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
18 partner, subsidiary, whole or partial, or ownership or membership relationship with any entity upon
19 which Plaintiff bases the allegations of liability, and has no direct or derivative liability for the
20 actions or omissions of those entities, including but not limited to the alternate entities identified in
21 Plaintiff's Complaint.
22 FIFTY-FOURTH AFFIRMATIVE DEFENSE
23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 Defendant alleges that this Court lacks subject matter jurisdiction over each and every count
25 contained in Plaintiff's Complaint.
26 FIFTY-FIFTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to
12
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
Defendant, is preempted, in whole or in part, by the applicable state and/or federal statutes, rules,
standards and/or regulations.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to
Defendant, is preempted by the Federal Food, Drug, and Cosmetics Act (“FFDCA”), 21 U.S.C. §§
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301-399(a) (2009), in that the U.S. Food and Drug Administration (“FDA”) has primary and
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exclusive jurisdiction over the safety of cosmetic talc-containing products and primary and exclusive
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jurisdiction to determine whether any warning must accompany cosmetic talc-containing products.
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10 The FDA has ruled, on multiple occasions, that cosmetic grade talc is a safe substance when used as
11 intended and further ruled that manufacturers need not provide any warnings on, or in connection
12 with the sale of, cosmetic grade talc-containing products.
13 FIFTY-SEVENTH AFFIRMATIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
15 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to
16 Defendant’s manufacture and/or sale of cosmetic grade talc-containing products, is subject to the
17 FDA’s primary jurisdiction. Consequently, each and every count of the Complaint, to the extent that
18 they pertain to Defendant, should be dismissed or stayed pending further FDA review of whether
19 cosmetic tale is generally recognized as safe and whether any warning must accompany, or other
20 restrictions be placed upon the manufacture and sale of, a cosmetic talc-containing product.
21 FIFTY-EIGHTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to
24 Defendant’s manufacture and/or sale of cosmetic grade talc-containing products, is an unauthorized
25 and improper attempt to enforce privately a claim under the FFDCA, 21 U.S.C. §§ 301-399(a)
26 (2009).
27 FIFTY-NINTH AFFIRMATIVE DEFENSE
28 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
Defendant alleges that Plaintiff's claims and causes of action, to the extent asserted against
Defendant, are barred in whole or in part because the product(s) manufactured or sold by Defendant
complied with all applicable federal, state and local rules, regulations, specifications, and laws.
SIXTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any negligence on the part of Defendant was superseded by the new and
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independent conduct, including negligence of Plaintiffs employer and/or other third parties, who
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owed a duty to Plaintiff and over whom Defendant had no control and which conduct Defendant
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could neither anticipate nor reasonably foresee and which superseding conduct was not a
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10 consequence of Defendant’s alleged negligence but which was the efficient cause of the injuries
1] allegedly sustained by Plaintiff.
12 SIXTY-FIRST AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
14 Defendant alleges that the injuries complained of by Plaintiff are wholly or partially caused by
15 independent means, including, inter alia, the conduct and habits of Plaintiff and exposure to other
16 particulates in the environment.
17 SIXTY-SECOND AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that if Plaintiff’s spouse and/or any other member of Plaintiff's household was a
20 user of tobacco products, such use contributed to any medical condition from which Plaintiff
21 allegedly suffers. Further, the tobacco industry placed warnings on its products notifying the public
22 of potential hazards associated with its use, which hazards Plaintiff knew or should have known, and
23 may have adversely affected Plaintiff's health.
24 SIXTY-THIRD AFFIRMATIVE DEFENSE
25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
26 Defendant alleges that the alleged injury or damage was sustained as a result of the occupation of
27 Plaintiff and/or was an occupational disease, and, accordingly, Defendant is not liable or responsible
28 for any occupational disease which was suffered or sustained by Plaintiff in the course of
14
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
employment over a number of years.
SIXTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it had no duty to give instructions to Plaintiff or to warn Plaintiff of any
hazards attendant to the contract with, use of, or exposure to products manufactured and/or sold by
Defendant, whether known or constructively known by Defendant.
DD
SIXTY-FIFTH AFFIRMATIVE DEFENSE
NN
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
SoS
Defendant alleges that no warranty of any kind was extended to Plaintiff in this matter.
oOo
10 SIXTY-SIXTH AFFIRMATIVE DEFENSE
1] AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
12 Defendant alleges that if Defendant was liable or negligent, each of which it expressly denies,
13 Defendant’s liability in any or all of those events has been terminated by the intervening acts,
14 omissions or negligence of others over whom Defendant had neither control, nor the right of control
15 and for whose conduct Defendant is not legally responsible.
16 SIXTY-SEVENTH AFFIRMATIVE DEFENSE
17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
18 Defendant alleges that it cannot be held liable under principles of strict tort liability because products
19 manufactured and/or products which left Defendant’s possession did so prior to the enactment of
20 California law regarding strict liability.
2] SIXTY-EIGHTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant denies that the doctrine of strict liability in tort applies to the claims alleged against it.
24 SIXTY-NINTH AFFIRMATIVE DEFENSE
25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
26 Defendant alleges that Plaintiff's allegations, claims, and causes of action, to the extent asserted
27 against Defendant, are barred in whole or in part because of the doctrine of assumption of the risk.
28 Mf
15
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
SEVENTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant denies that any material or product it manufactured and/or sold was defective or
negligently mined, processed, manufactured, designed, tested, investigated, fashioned, packaged,
distributed, delivered, and/or sold. If, however, there was any defect or negligence on the part of
Defendant, it is nonetheless not liable because it justifiably relied upon the inspections of its
DN
suppliers and certifications provided by those suppliers that the talc furnished to Defendant was free
SN
of asbestos contamination.
So
SEVENTY-FIRST AFFIRMATIVE DEFENSE
oOo
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
1] Defendant specifically denies that any talcum powder product that it manufactured and/or sold was
12 defectively designed, because the manufacturing specifications for Defendant’s taloum powder
13 products did not include asbestos.
14 SEVENTY-SECOND AFFIRMATIVE DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 Defendant alleges that the utility of the products manufactured by Defendant outweighed the danger
17 allegedly involved and, therefore, Plaintiffs claim are barred as a matter of public policy.
18 SEVENTY-THIRD AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
20 Defendant expressly denies that it manufactured, designed, and/or sold any products referred to in
21 Plaintiff's Complaint which caused injury to Plaintiff. Notwithstanding, at all times and places
22 mentioned in the Complaint, Plaintiff and/or other persons without Defendant’s knowledge and
23 approval redesigned, modified, altered, and used Defendant’s products contrary to instruction and
24 contrary to the custom and practice of the industry. This redesign, modification, alteration, and use
25 so substantially changed the product’s character that if there was a defect in the product, which
26 Defendant specifically denies, such defect resulted solely from the redesign, modification, alteration,
27 or other such treatment or change and not from any act or omission by this Defendant. Therefore,
28 said defect, if any, was created by Plaintiff and/or other persons, as the case may be, and was the
16
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1
direct and proximate cause of the injuries and damages, if any, that Plaintiff allegedly suffered.
SEVENTY-FOURTH AFFIRMATIVE DEFENSE
WN
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Ww
Defendant alleges that Plaintiff is not entitled to punitive, exemplary or enhanced damages for the
-_
following reasons:
SN
(a) Punitive, exemplary, or enhanced damages are not recoverable under applicable law;
DWN
(b) Plaintiff’s claim for punitive damages is barred by the Due Process clause of the
SN
Fourteenth Amendment to the United States Constitution;
eo
(c) Plaintiff's claim for punitive damages is barred by the proscription of the Eighth
Oo
10 Amendment to the United States Constitution, as supplied to the States through the
11 Fourteenth Amendment, prohibiting the imposition of excessive fines;
12 (d) Plaintiffs claim for punitive damages is barred by the “double jeopardy” clause of
13 the Fifth Amendment to the United States Constitution, as applied to the States
14 through the Fourteenth Amendment; and
15 (e) Plaintiff’s claim for punitive damages is unconstitutional to the extent the Court has
16 consolidated multiple actions for a single trial.
17 SEVENTY-FIFTH AFFIRMATIVE DEFENSE
18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
19 Defendant alleges that a determination of punitive damages, if any, must be deferred until a finding
20 of liability on the merits.
21 SEVENTY-SIXTH AFFIRMATIVE DEFENSE
22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
23 Defendant alleges that punitive damages cannot be awarded against Defendant for any of the alleged
24 actions or omissions of any of Defendant’s predecessors because there is not a sufficient degree of
25 identity between Defendant and any of its predecessors to justify such an award.
26 SEVENTY-SEVENTH AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 Defendant alleges that there was no negligence, gross negligence, willful, wanton or malicious
17
DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
5077122 v1 .
misconduct, reckless indifference or reckless disregard of the rights of Plaintiff, or malice (actual,
legal or otherwise) on the part o
Preview
ad e nnnnaan Keith M. Ameele, Esq. SBN: 221927 kameele@foleymansfield.com Kimberly L. Rivera, Esq. SBN: 205528 | E D krivera@foleymansfield.com Jonathan J. Kim (SBN 322421) ALAMEDA COUNTY Ww jkim@foleymansfield.com FOLEY & MANSFIELD, PLLP MAY 1 4 2021 300 South Grand Avenue, Suite 2800 ; purr Los Angeles, CA 90071 . ' CLERK OF p Telephone (213) 283-2100 By () Kis Facsimile (213) 283-2101 DD Attorneys for Defendant NA COLGATE-PALMOLIVE COMPANY © SUPERIOR COURT OF THE STATE OF CALIFORNIA oO 10 FOR THE COUNTY OF ALAMEDA 1] 12 MEREDITH A. EGLI, Case No.: RG20075272 [Assigned to Hon. Jo-Lynne Q. Lee, Dept. 18] 13 Plaintiff, DEFENDANT COLGATE-PALMOLIVE 14 VS. COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR 15 JOHNSON & JOHNSON, et al., PERSONAL INJURIES; DEMAND FOR JURY TRIAL 16 Defendants. 17 1° AC Filed: April 12, 2021 18 Complaint Filed: September 30, 2020 Trial Date: None Set 19 20 2] Defendant COLGATE-PALMOLIVE COMPANY (“Defendant”), in answer to the first 22 amended complaint of plaintiff MEREDITH EGLI (‘Plaintiff’), admits, denies and alleges as 23 follows: 24 Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant 25 denies each and every, all and singular, both generally and specifically, the allegations of Plaintiff's 26 unverified complaint, and further denies that Plaintiff has been damaged as alleged, or at all, by 27 reason of any act or omission on the part of Defendant or its agents, servants or employees. 28 Mi Y DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL “4 g 5077122 v1 FIRSTAFFIRMATIVE DEFENSE This Court lacks personal jurisdiction over Defendant. N AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, WwW Defendant alleges that Plaintiff is not entitled to the damages claimed or to the relief demanded. & SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, DD Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that N neither the Complaint, nor any purported cause of action alleged therein, states facts sufficient to Co constitute a cause of action against Defendant under any legal theory. Oo 10 THIRD AFFIRMATIVE DEFENSE 1] AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that 13 the Complaint, and each purported cause of action, is uncertain and ambiguous as it relates to 14 Defendant. 15 FOURTH AFFIRMATIVE DEFENSE 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 17 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that 18 the Complaint, and each purported cause of action fails to state a cognizable claim for the recovery 19 of damages against Defendant, including, but not limited to, recovery of punitive damages and 20 prejudgment interest. 21 FIFTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that 24 the Complaint, and/or each purported cause of action against Defendant, is barred by the applicable 25 statutes of repose and/or statutes of limitations, including but not limited to California Code of Civil 26 Procedure §§ 335.1, 338(a), 338(d), 339(1), 340.2, 361, 583.210, 583.250, 583.310, and 27 583.420(a)(1). | 28 HI! 2 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 SIXTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that Plaintiff has failed to join all indispensable parties, and, therefore complete relief cannot be afforded to the parties in this action and will result in prejudice in any future litigation. SEVENTH AFFIRMATIVE DEFENSE TN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery against Defendant is barred as to any non-economic Oo damages except those allocated to Defendant in direct proportion to its percentage of fault, if any. Oo 10 EIGHTH AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that the provisions of California Civil Code § 1431.2 (commonly referred to as 13 “Proposition 51”) are applicable to Plaintiff's Complaint and to each cause of action therein. 14 NINTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 17 extent that Plaintiff has released, settled or entered into an accord and satisfaction or otherwise 18 compromised her claims, and, therefore said claims are barred by operation of law, or in the 19 alternative, Plaintiff has accepted payment for partial settlement, and therefore Defendant is entitled 20 to a set-off. 21 TENTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced in that 24 Plaintiff failed to take reasonable actions to avoid or mitigate her alleged damages, if any. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 27 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced by 28 the doctrine of laches in that Plaintiff waited an unreasonable period of time to file this action and DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 that this prejudicial delay has worked to the detriment of Defendant. TWELFTH AFFIRMATIVE DEFENSE N AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Ww Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced by -& virtue of Plaintiff and/or her agents’ unlawful, careless, negligent, and other wrongful conduct, such nA that Plaintiff is not entitled to any of the relief sought against Defendant, under the equitable doctrine D of unclean hands. NN THIRTEENTH AFFIRMATIVE DEFENSE Oo AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, o 10 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced in 11 that Plaintiff and/or her agents expressly or impliedly waived any rights they may have had by their 12 acts, conduct, and/or omissions. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 15 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished, or reduced to the 16 extent Plaintiff consented to the acts and/or omissions of Defendant as alleged in the Complaint. 17 FIFTEENTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced by the 20 doctrines of waiver and estoppel. 21 SIXTEENTH AFFIRMAT IVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that Plaintiff's claims against Defendant are barred in whole or in part by 24 Plaintiff's contributory and/or comparative fault, because the damages, if any, were legally caused 25 by and are the result, in whole or part, of her own carelessness, recklessness, negligent acts and/or 26 omissions or failure to act reasonably. Accordingly, any recovery by Plaintiff against Defendant is 27 barred, or in the alternative, is comparatively reduced by Plaintiff's percentage of fault. 28 /H 4 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL $077122 v1 SEVENTEENTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's claims against Defendant are barred in whole or in part on the grounds that Plaintiff's employers knew, or in the exercise of ordinary care should have known the risk of the injuries or damages alleged in the Complaint, if any, and nevertheless did freely and voluntarily assume said risk, and this undertaking proximately caused and contributed to the losses, ND injuries or damages, if any alleged by Plaintiff. NS EIGHTEENTH AFFIRMATIVE DEFENSE Oo AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, oOo 10 Defendant alleges that Plaintiff is barred from recovery against Defendant in that if Plaintiff suffered 11 any loss or damage, such loss or damage was the direct and proximate cause of the misuse of the 12 product or equipment at issue by Plaintiff or persons other than Defendant, and said misuse was 13 unreasonable and not reasonably foreseeable at the time the product(s) or equipment was sold. 14 NINETEENTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 17 extent that the dangers, if any, associated with the product(s) or equipment referenced in the 18 Complaint were not unreasonable and/or constituted commonly known dangers. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that Plaintiff is barred from recovery in that if she sustained any loss or damage, 22 such loss or damage was not directly or proximately caused by the acts or omissions of Defendant. 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 26 extent that Plaintiff never worked with, near or around any product(s) and/or equipment supplied by 27 Defendant and therefore was not harmed by such product(s) and/or equipment. 28 Mf 5 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 TWENTY-SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery against DEFENDANT is barred, diminished or reduced in that other person(s) and/or entity(ies), whose true names and/or capacities are unknown to Defendant, are in some manner responsible for or at fault in proximately causing the damage allegedly sustained by Plaintiff, and therefore the damages, if any, should be apportioned in NN proportion to the relative fault, if any, of each other person or entity, including but not limited to co- NN defendants, settling and dismissed co-defendants, third-party defendants, bankrupt or insolvent COo& entities, settling and other non-parties, and other responsible persons or entities. Oo 10 TWENTY-THIRD AFFIRMATIVE DEFENSE 11 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 13 extent that her alleged damages were caused by unforeseeable acts or omissions and Defendant 14 exercised due care with respect to foreseeable acts and omissions. 15 TWENTY-FOURTH AFFIRMATIVE DEFENSE 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 17 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 18 extent the damages alleged in the Complaint were unavoidable. 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 22 extent the loss or injury suffered by Plaintiff, if any, was caused by an idiosyncratic condition for 23 which Defendant could not have taken any steps to avoid. 24 TWENTY-SIXTH AFFIRMATIVE DEFENSE 25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 26 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 27 extent her damages were proximately caused by an act of God. 28 Mf 6 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the extent that the dangers, if any, associated with the product(s) and/or equipment referenced in the Complaint constitute an unavoidably unsafe product or piece of equipment. TWENTY-EIGHTH AFFIRMATIVE DEFENSE NN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that Oo Plaintiff is attempting to assert that Defendant is liable as an agent, servant, employee and/or joint oOo 10 venturer, or as successor, successor in business, successor in product line or a portion thereof, assign, 11 predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter 12 ego, subsidiary, whole or partial owner, wholly or partially owned entity, or member of any group 13 engaged in funding, researching, processing, constructing, analyzing, merchandising, supplying, 14 studying, testing, designing, labeling, manufacturing, distributing, marketing, warning, warranting, 15 rebranding, leasing, buying, selling, inspecting, or servicing of a certain substance, the generic name 16 of which is asbestos and/or products containing asbestos. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiff is barred from recovery against Defendant by the exclusive remedy 20 provisions under the California Workers’ Compensation Act, including but not limited to Labor 21 Code §§ 3600, 3600.5, 2601, and 3602, or similar laws of another jurisdiction. 22 THIRTIETH AFFIRMATIVE DEFENSE 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 Defendant alleges that Plaintiff’s recovery against Defendant is barred, diminished or reduced to the 25 extent the Plaintiff received Workers’ Compensation payments for the injuries alleged in the 26 Complaint. To the extent any such payments have been made, Defendant is entitled to an offset in 27 the amount of all such benefits against any damages awarded to Plaintiff. 28 Ml 7 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 THIRTY-FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, NWN Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the Ww extent that there is no possibility of an alternate safer design for the product(s) or equipment & referenced in the Complaint, and that the risk of danger, if any, is inherent in said product(s) or mn equipment. NWN THIRTY-SECOND AFFIRMATIVE DEFENSE SN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, fo Defendant alleges that the dangerous condition as set forth in the Complaint did not exist. If oOo 10 however, such dangerous condition did, in fact, exist, Defendant had no knowledge or adequate 1] knowledge of it, having exercised reasonable care in inspecting its product(s) or equipment. 12 THIRTY-THIRD AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that the alleged condition of the product set forth in the Complaint did not 15 constitute a substantial risk of injury; but if any risk of injury did exist, it constituted merely a minor, 16 trivial or insignificant risk which did not create a dangerous condition in its product(s) or equipment, 17 and therefore Defendant is not liable for Plaintiffs alleged damages. 18 THIRTY-FOURTH AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 20 Defendant alleges that Plaintiff’s recovery is barred, diminished or reduced to the extent that 21 Plaintiffs employer(s) were provided with and were aware of adequate warnings issued by 22 Defendant and others for product(s) and/or equipment supplied to them. Further, Plaintiff, and/or 23 her employer(s) who received product(s) and/or equipment alleged to have been supplied by 24 Defendant, were aware of the proper handling, care and risk of said products or materials, and failed 25 to heed said warnings and/or to advise her employees of the same. The acts and omissions of 26 Plaintiff, her employer(s), and others in this regard proximately caused Plaintiff's damages and 27 injuries, if any. 28 Ml 8 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL $077122 v1 THIRTY-FIFTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that neither Plaintiff, nor Plaintiff’s employers, justifiably relied on any alleged misrepresentation of Defendant, nor did Defendant influence the subsequent purchase of, or use of product(s) and/or equipment referred to in the Complaint. SN THIRTY-SIXTH AFFIRMATIVE DEFENSE N AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Oo Defendant alleges that Plaintiff’s recovery against Defendant is barred, diminished or reduced on the o 10 grounds that all conduct and activities of Defendant alleged in the Complaint conformed to statutes, 11 government regulations, industry standards and the state of knowledge at the time all times relevant 12 in the Complaint. 13 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 15 Defendant alleges that the product(s) or equipment referred to in Plaintiffs Complaint which may 16 have been manufactured or distributed by this Defendant, were manufactured and/or distributed in 17 accordance with specifications and requirements supplied to this Defendant by individuals or entities 18 including, but not limited to, the United States of America. The alleged defect, if any, in said 19 product(s) or equipment was, therefore, caused by said mandatory specifications and requirements 20 and the alleged defect was neither known to, nor discoverable by this Defendant with the exercise of 21 reasonable care. 22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 Defendant alleges that Plaintiff's recovery against Defendant is barred, diminished or reduced to the 25 extent the Complaint seeks recovery under the theory of “enterprise,” “industry-wide,” “alternate” or 26 “market share” (collectively referred to hereafter as “market share”) liability, and furthermore, the 27 essential elements of a cause of action premised on a market share theory of liability do not exist 28 between Plaintiff and Defendant. 9 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 vi THIRTY-NINTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the Complaint fails to allege facts sufficient to constitute a cause of action a based upon market share liability and/or enterprise liability and therefore, violates the guarantees of due process of law and equal protection of the laws guaranteed by the United States and California Constitutions, and such violations bar Plaintiff's recovery or judgment against Defendant. DD FORTIETH AFFIRMATIVE DEFENSE nN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, CO Defendant alleges that Plaintiff’s recovery is barred, diminished or reduced to the extent that oOo 10 Plaintiff failed to, and cannot identify the product(s) and/or equipment, and the toxins within said 1] product(s) and/or equipment, to which Plaintiff was exposed. 12 FORTY-FIRST AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that the 15 benefits of Defendant’s product(s) or equipment, if any, outweighed the risk of danger inherent in 16 said product or material. 17 FORTY-SECOND AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiff's recovery is barred, diminished or reduced to the extent that 20 Plaintiff cannot show that the product(s) or equipment supplied by Defendant, if any, in all 21 reasonable medical probability, was a substantial factor in increasing the risk of bringing about the 22 injuries or damages complained of by Plaintiff. 23 FORTY-THIRD AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 Defendant alleges that the items which may have been manufactured or distributed by this 26 Defendant, were manufactured and/or distributed in accordance with specifications and requirements 27 supplied to this Defendant by individuals or entities including, but not limited to, the United States 28 of America. The alleged defect, if any, in said product was, therefore, caused by said mandatory 10 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL $077122 v1 specifications and requirements and the alleged defect was neither known to nor discoverable by this Defendant with the exercise of reasonable care. FORTY-FOURTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's recovery is barred to the extent that Plaintiff's injuries occurred on a federal enclave or while working under the direction of a federal officer. ND FORTY-FIFTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Se Defendant alleges that Plaintiff’s recovery is barred to the extent that Plaintiff's claims arise under oO 10 the Constitution, treaties, laws of the United States, and/or admiralty or maritime law. 11 FORTY-SIXTH AFFIRMATIVE DEFENSE 12 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 13 Defendant alleges that Plaintiffs recovery is barred to the extent that the venue is improper. 14 . FORTY-SEVENTH AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that Plaintiff's recovery is barred to the extent that the forum is improper. 17 FORTY-EIGHTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that Plaintiffs causes of action and claims are governed by the laws of another 20 state. 21 FORTY-NINTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that Plaintiff lacks legal capacity to sue and is not a real party in interest and is 24 thereby precluded from any recovery whatsoever. 25 FIFTIETH AFFIRMATIVE DEFENSE 26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 27 Defendant alleges that pursuant to the equitable doctrine of forum non conveniens and California 28 Code of Civil Procedure § 410.30, California is an improper forum of this action because in the 11 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 ° interests of fairness and convenience, this action should be appropriately and justly tried in a forum outside California. FIFTY-FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel, and by the rule against splitting a cause of action. SN FIFTY-SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Oo Defendant alleges that in the event Defendant is held liable to Plaintiff, which liability is expressly oOo 10 denied herein, any other co-defendants are likewise held liable, Defendant is entitled to a percentage 1 contribution of the total liability from said-co-defendants in accordance with the principles of 12 equitable indemnity and comparative contribution. 13 FIFTY-THIRD AFFIRMATIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 15 Defendant alleges that it does not have and never has had a successor, successor-in-business, 16 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, 17 predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, 18 partner, subsidiary, whole or partial, or ownership or membership relationship with any entity upon 19 which Plaintiff bases the allegations of liability, and has no direct or derivative liability for the 20 actions or omissions of those entities, including but not limited to the alternate entities identified in 21 Plaintiff's Complaint. 22 FIFTY-FOURTH AFFIRMATIVE DEFENSE 23 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 Defendant alleges that this Court lacks subject matter jurisdiction over each and every count 25 contained in Plaintiff's Complaint. 26 FIFTY-FIFTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to 12 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 Defendant, is preempted, in whole or in part, by the applicable state and/or federal statutes, rules, standards and/or regulations. FIFTY-SIXTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to Defendant, is preempted by the Federal Food, Drug, and Cosmetics Act (“FFDCA”), 21 U.S.C. §§ DH 301-399(a) (2009), in that the U.S. Food and Drug Administration (“FDA”) has primary and NN exclusive jurisdiction over the safety of cosmetic talc-containing products and primary and exclusive Oo jurisdiction to determine whether any warning must accompany cosmetic talc-containing products. oOo 10 The FDA has ruled, on multiple occasions, that cosmetic grade talc is a safe substance when used as 11 intended and further ruled that manufacturers need not provide any warnings on, or in connection 12 with the sale of, cosmetic grade talc-containing products. 13 FIFTY-SEVENTH AFFIRMATIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 15 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to 16 Defendant’s manufacture and/or sale of cosmetic grade talc-containing products, is subject to the 17 FDA’s primary jurisdiction. Consequently, each and every count of the Complaint, to the extent that 18 they pertain to Defendant, should be dismissed or stayed pending further FDA review of whether 19 cosmetic tale is generally recognized as safe and whether any warning must accompany, or other 20 restrictions be placed upon the manufacture and sale of, a cosmetic talc-containing product. 21 FIFTY-EIGHTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that each and every Count of the Complaint, to the extent the Count pertains to 24 Defendant’s manufacture and/or sale of cosmetic grade talc-containing products, is an unauthorized 25 and improper attempt to enforce privately a claim under the FFDCA, 21 U.S.C. §§ 301-399(a) 26 (2009). 27 FIFTY-NINTH AFFIRMATIVE DEFENSE 28 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 13 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 Defendant alleges that Plaintiff's claims and causes of action, to the extent asserted against Defendant, are barred in whole or in part because the product(s) manufactured or sold by Defendant complied with all applicable federal, state and local rules, regulations, specifications, and laws. SIXTIETH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any negligence on the part of Defendant was superseded by the new and SN independent conduct, including negligence of Plaintiffs employer and/or other third parties, who NSN owed a duty to Plaintiff and over whom Defendant had no control and which conduct Defendant CO could neither anticipate nor reasonably foresee and which superseding conduct was not a o 10 consequence of Defendant’s alleged negligence but which was the efficient cause of the injuries 1] allegedly sustained by Plaintiff. 12 SIXTY-FIRST AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 14 Defendant alleges that the injuries complained of by Plaintiff are wholly or partially caused by 15 independent means, including, inter alia, the conduct and habits of Plaintiff and exposure to other 16 particulates in the environment. 17 SIXTY-SECOND AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that if Plaintiff’s spouse and/or any other member of Plaintiff's household was a 20 user of tobacco products, such use contributed to any medical condition from which Plaintiff 21 allegedly suffers. Further, the tobacco industry placed warnings on its products notifying the public 22 of potential hazards associated with its use, which hazards Plaintiff knew or should have known, and 23 may have adversely affected Plaintiff's health. 24 SIXTY-THIRD AFFIRMATIVE DEFENSE 25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 26 Defendant alleges that the alleged injury or damage was sustained as a result of the occupation of 27 Plaintiff and/or was an occupational disease, and, accordingly, Defendant is not liable or responsible 28 for any occupational disease which was suffered or sustained by Plaintiff in the course of 14 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 employment over a number of years. SIXTY-FOURTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it had no duty to give instructions to Plaintiff or to warn Plaintiff of any hazards attendant to the contract with, use of, or exposure to products manufactured and/or sold by Defendant, whether known or constructively known by Defendant. DD SIXTY-FIFTH AFFIRMATIVE DEFENSE NN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, SoS Defendant alleges that no warranty of any kind was extended to Plaintiff in this matter. oOo 10 SIXTY-SIXTH AFFIRMATIVE DEFENSE 1] AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 12 Defendant alleges that if Defendant was liable or negligent, each of which it expressly denies, 13 Defendant’s liability in any or all of those events has been terminated by the intervening acts, 14 omissions or negligence of others over whom Defendant had neither control, nor the right of control 15 and for whose conduct Defendant is not legally responsible. 16 SIXTY-SEVENTH AFFIRMATIVE DEFENSE 17 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 18 Defendant alleges that it cannot be held liable under principles of strict tort liability because products 19 manufactured and/or products which left Defendant’s possession did so prior to the enactment of 20 California law regarding strict liability. 2] SIXTY-EIGHTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant denies that the doctrine of strict liability in tort applies to the claims alleged against it. 24 SIXTY-NINTH AFFIRMATIVE DEFENSE 25 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 26 Defendant alleges that Plaintiff's allegations, claims, and causes of action, to the extent asserted 27 against Defendant, are barred in whole or in part because of the doctrine of assumption of the risk. 28 Mf 15 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 SEVENTIETH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant denies that any material or product it manufactured and/or sold was defective or negligently mined, processed, manufactured, designed, tested, investigated, fashioned, packaged, distributed, delivered, and/or sold. If, however, there was any defect or negligence on the part of Defendant, it is nonetheless not liable because it justifiably relied upon the inspections of its DN suppliers and certifications provided by those suppliers that the talc furnished to Defendant was free SN of asbestos contamination. So SEVENTY-FIRST AFFIRMATIVE DEFENSE oOo 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 1] Defendant specifically denies that any talcum powder product that it manufactured and/or sold was 12 defectively designed, because the manufacturing specifications for Defendant’s taloum powder 13 products did not include asbestos. 14 SEVENTY-SECOND AFFIRMATIVE DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 Defendant alleges that the utility of the products manufactured by Defendant outweighed the danger 17 allegedly involved and, therefore, Plaintiffs claim are barred as a matter of public policy. 18 SEVENTY-THIRD AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 20 Defendant expressly denies that it manufactured, designed, and/or sold any products referred to in 21 Plaintiff's Complaint which caused injury to Plaintiff. Notwithstanding, at all times and places 22 mentioned in the Complaint, Plaintiff and/or other persons without Defendant’s knowledge and 23 approval redesigned, modified, altered, and used Defendant’s products contrary to instruction and 24 contrary to the custom and practice of the industry. This redesign, modification, alteration, and use 25 so substantially changed the product’s character that if there was a defect in the product, which 26 Defendant specifically denies, such defect resulted solely from the redesign, modification, alteration, 27 or other such treatment or change and not from any act or omission by this Defendant. Therefore, 28 said defect, if any, was created by Plaintiff and/or other persons, as the case may be, and was the 16 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 direct and proximate cause of the injuries and damages, if any, that Plaintiff allegedly suffered. SEVENTY-FOURTH AFFIRMATIVE DEFENSE WN AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Ww Defendant alleges that Plaintiff is not entitled to punitive, exemplary or enhanced damages for the -_ following reasons: SN (a) Punitive, exemplary, or enhanced damages are not recoverable under applicable law; DWN (b) Plaintiff’s claim for punitive damages is barred by the Due Process clause of the SN Fourteenth Amendment to the United States Constitution; eo (c) Plaintiff's claim for punitive damages is barred by the proscription of the Eighth Oo 10 Amendment to the United States Constitution, as supplied to the States through the 11 Fourteenth Amendment, prohibiting the imposition of excessive fines; 12 (d) Plaintiffs claim for punitive damages is barred by the “double jeopardy” clause of 13 the Fifth Amendment to the United States Constitution, as applied to the States 14 through the Fourteenth Amendment; and 15 (e) Plaintiff’s claim for punitive damages is unconstitutional to the extent the Court has 16 consolidated multiple actions for a single trial. 17 SEVENTY-FIFTH AFFIRMATIVE DEFENSE 18 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 19 Defendant alleges that a determination of punitive damages, if any, must be deferred until a finding 20 of liability on the merits. 21 SEVENTY-SIXTH AFFIRMATIVE DEFENSE 22 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 23 Defendant alleges that punitive damages cannot be awarded against Defendant for any of the alleged 24 actions or omissions of any of Defendant’s predecessors because there is not a sufficient degree of 25 identity between Defendant and any of its predecessors to justify such an award. 26 SEVENTY-SEVENTH AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 Defendant alleges that there was no negligence, gross negligence, willful, wanton or malicious 17 DEFENDANT COLGATE-PALMOLIVE COMPANY’S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL 5077122 v1 . misconduct, reckless indifference or reckless disregard of the rights of Plaintiff, or malice (actual, legal or otherwise) on the part o