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FILED
7/6/2022 9:18 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Marissa Gomez DEPUTY
CAUSE NO. DC-22-05469
VICTORIA MENDOZA, Individually and as § IN THE DISTRICT COURT OF
Anticipated Representative of the Estate of §
RICARDO MENDOZA, Deceased, RICK §
MENDOZA and ANGELO MENDOZA, §
§
Plaintlff, § DALLAS COUNTY, TEXAS
§
vs. §
§
3M COMPANY, et al., §
§
Defendants. § IOIST JUDICIAL DISTRICT
DEFENDANT IMO INDUSTRIES INC.’S SPECIAL EXCEPTIONS, AND
SUBJECT THERETO, ITS MOTION TO DISMISS FOR FORUM NON CONVENIENS,
ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION, CROSS-CLAIM,
AND ANSWER TO ALL CROSS-CLAIMS
COMES NOW Defendant, IMO Industries Inc. (incorrectly sued as successor-in-interest
to C.H. WHEELER MANUFACTURING COMPANY, ADEL FASTENERS, and WIGGINS
CONNECTORS) (“IMO”) and files this, its Special Exceptions, and Subject Thereto, Its Motion
to Dismiss for Forum Non Conveniens, Original Answer to Plaintiffs’ Original Petition, Cross-
Claim, and Answer to A11 Cross-Claims.
I.
Special Exceptions
1. Plaintiffs have filed this lawsuit against numerous Defendants claiming that
exposure to asbestos caused the claimed injuries and/or death. The Texas Rules of Civil
Procedure require that Plaintiffs’ petition “consist of a statement in plain and concise language of
the plaintiff s cause of action” and that it must be “sufficient to give fair notice of the claim
involved.” TEX. R. CIV. P. 45(b) and 47(a). Plaintiffs’ petition only satisfies these requirements
DEFENDANT IMO INDUSTRIES INc.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITS MOTION To DISMISS
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER To ALL CROSS-CLAIMS
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if, “it gives fair and adequate notice of the facts upon which the pleader bases his claim . . .
[because the purpose] is to give the opposing party information sufficient to enable him to
prepare a defense.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (emphasis added).
2. Plaintiffs’ Original Petition fails to provide IMO with fair and adequate notice of
the facts supporting Plaintiffs’ claims sufficient for IMO to prepare its defenses. Specifically,
Plaintiffs have not provided IMO with fair and adequate notice regarding what products
manufactured, marketed or sold by IMO contributed to the claimed injuries. Therefore, IMO
specially excepts to Plaintiffs’ Original Petition. Plaintiff should be required to specifically
identify the IMO product or products he claims were manufactured, marketed or sold by IMO.
Further, Plaintiffs should be required to describe the alleged circumstances of any work with or
around these products in reasonable detail to give fair and adequate notice of the facts upon
which Plaintiffs base their claims.
3. IMO specially excepts to Plaintiffs’ Original Petition because Plaintiffs did not
plead enough facts to allow IMO to evaluate the venue, forum and jurisdiction issues in this case.
4. Plaintiffs stated that venue is proper in Dallas County because all or a substantial
portion of the events that gave rise to the cause of action occurred in the county and/or one or
more of the Defendants has its principal place of business in Dallas County. Plaintiffs should
not be allowed to allege venue facts in vague terms that are impossible to evaluate. Plaintiffs
should indicate the actual basis for venue in Dallas County.
5. Plaintiffs must identify the basis for venue in Dallas County by either pleading
what event occurred in this county to contribute to Plaintiffs’ cause of action, or specifically
pleading what Defendant has a principal place of business there. If the basis is the latter,
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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Plaintiffs should be required to plead What connection that Defendant has to this case so IMO
can evaluate the validity of Plaintiffs’ venue claims.
II.
MOTION TO DISMISS FOR FORUM NON CONVENIENS
7. IMO respectfully requests that this case be dismissed for Forum Non Conveniens,
pursuant to Section 71.051 of the Texas Civil Practices and Remedies Code.
III.
ORIGINAL ANSWER
8. IMO denies each material allegation contained in the Original Petition and
demands strict proof thereof by a preponderance of the evidence before this Court and a jury.
Moreover, IMO is not obligated to answer any allegations relating to any other Defendant and,
therefore, denies them.
9. IMO denies that Plaintiffs sustained any injury or illness caused by, produced by,
or resulting from contact With any product manufactured, sold, or distributed by IMO.
IV.
DEFENSES
10. IMO would show that claims in the Original Petition are barred by statutes of
limitation under TEX. CIV. PRAC. & REM. CODE §§ 16.001, et seq., and all other applicable
statutes of limitations, including those of strict liability, breach of express or implied warranty,
and those of appropriate state jurisdictions.
11. IMO would show that the Due Process Clause of the Fourteenth Amendment of
the United States Constitution bars jurisdiction to proceed with this cause because the State of
Texas lacks enough contacts with both the parties and the controversy to render an assertion of
fair and reasonable jurisdiction.
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION To DISMISS
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER To PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER To ALL CROSS-CLAIMS
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12. IMO would show that, alternatively, this Court should decline jurisdiction under
the doctrine of forum non conveniens.
13. IMO would show that Plaintiffs are not entitled to recover for any alleged breach
of express or implied warranty, as there are neither any express or implied warranties nor any
privity of contract between IMO and Plaintiffs.
14. IMO would show that the Decedent may have assumed the risk of any injuries or
damages allegedly incurred as a result of exposure to products manufactured, sold, or distributed
by IMO because the Decedent, or his employers, may have had equal or greater knowledge of
the alleged hazards of exposure to asbestos. Additionally, IMO would show that the Decedent
may have used the product without showing proper regard for his/her own health and safety.
15. IMO would show that there could be no strict liability claim for any alleged
exposure to toxic materials and substances occurring prior to June 7, 1967, because the Texas
Supreme Court did not adopt strict liability under Section 402A, RESTATEMENT (SECOND) 0F
TORTS, until then in McKisson v. Sales, 416 S.W.2d 787 (Tex. 1967).
16. IMO would show that Plaintiffs should not recover exemplary damages because
such an award, pursuant to either TEX. CIV. PRAC. & REM. CODE §§ 41.001, et seq., or common
law, would: (1) violate the Excessive Fines Clause of the Eighth Amendment of the United
States Constitution by failing to place a limit on the amount; (2) be void for vagueness and
violative of the Equal Protection Clause of the Fifth and Fourteenth Amendments of the United
States Constitution; or (3) violate Article 1, Sections 10 and 13 of the Constitution of the State of
Texas.
17. IMO would show that an exemplary damages award requires proof by clear and
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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convincing evidence to comport with the Due Process Clause of the Fourteenth Amendment of
the United States Constitution, Section 19 of the Constitution of the State of Texas, and the
constitution and laws of any other applicable state.
18. IMO would show that TEX. CIV. PRAC. & REM. CODE § 41.008 limits exemplary
damages to a maximum of two times economic damages plus an amount equal to any
noneconomic damages found by a jury not to exceed $750,000, or $200,000.00, whichever is
greater.
l9. IMO would show that, if it manufactured, distributed, or sold any asbestos-
containing products, any alleged exposure of the Decedent to those products was de minimis and
insufficient to establish to a reasonable degree of probability that they caused any alleged injury.
20. [MO would show that there should be no recovery against it because the
superseding and intervening negligence of third parties caused Plaintiffs’ alleged injuries, and
this conduct, either by omission or commission, interrupted the natural and proximate causal
relationship between any alleged act or omission of IMO and Plaintiffs’ alleged resulting injuries
and damages.
21. IMO would show that there should be no recovery against it because Plaintiffs
failed to mitigate any alleged damages.
22. IMO would show that the Workers’ Compensation Act provides, as an exclusive
remedy, compensation benefits for the disability of an employee if such disability resulted from
an injury, or occupational disease, and was incurred, or sustained, in the course of employment.
Moreover, IMO would further show that any alleged exposure of the Decedent to any IMO
products occurred during a period when an entity then subscribing to Workers’ Compensation
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENs, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER To ALL CROSS-CLAIMS
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insurance employed the Decedent. Thus, IMO would Show that Workers’ Compensation, with
its attendant benefits, is the exclusive remedy for any alleged injury or occupational disease
incurred.
23. IMO would show that, at all relevant times, its products complied with industry,
federal, and state standards and regulations governing the manufacturing, sale, packaging, and
distribution of such products.
24. IMO would show that any alleged absence of warning did not lead the Decedent
to rely on the safety of any product at issue.
25. IMO would show that recovery is barred because the Decedent’s misuse, or
improper use, of the products at issue was the sole cause of any alleged resulting injuries or
damages or, alternatively, was the proximate or producing cause, or contributed to causing,
Plaintiffs’ alleged injuries or damages.
26. IMO would show that Plaintiffs’ recovery is barred because the Decedent’s
negligent conduct, or fault, was the sole cause of the alleged resulting injuries or damages.
27. IMO would show that Plaintiffs’ recovery is barred because the negligent
conduct, or fault, of Decedent was a proximate and producing cause of any injuries or damages,
and also exceeded any negligence, or other fault, of IMO and other Defendants. Alternatively,
IMO would show that the claims of Plaintiffs are barred to the extent of the Decedent’s
comparative negligence or fault. Moreover, IMO would show that the Decedent’s negligence,
whether it be the sole cause or a contributing cause, is a complete bar to recovery to the extent
that any alleged exposure occurred prior to September 30, 1972.
28. IMO would show that other named Defendants caused any alleged injuries or
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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damages sustained by Plaintiffs and IMO held no right of control over these Defendants.
29. Alternatively, IMO would show that it breached no duty because the Decedent, or
his superiors, knew about any alleged risks associated with the products’ use.
30. Alternatively, IMO would show that it breached no duty because the Decedent’s
employers or supervisors knew about any alleged dangers of which Plaintiffs now complain, and
IMO hereby asserts the defense of sophisticated user/leamed intermediary.
31. IMO would show that any alleged injuries were either preexisting or not the result
of contact with any products manufactured, sold, or distributed by IMO.
32. IMO would show there is no product liability claim from any alleged exposure
under TEX. CIV. PRAC. & REM. CODE §§ 82.001, et seq.
33. IMO would show that there was no concert of action between it and any other
named Defendants.
34. IMO would show that pursuant to Chapters 32 and 33 of the Texas Civil Practices
and Remedies Code, and without accepting the truth of the pleadings and denying all liability,
IMO reserves its right, if it is found to have any liability to Plaintiffs, to a set-off, percentage, or
pro rata reduction of any such liability, or to a credit for the amount of any settlement paid by
each settling Defendants.
35. Alternatively, in the event it is not otherwise entitled to judgment as a matter of
law, IMO invokes the apportionment of damages system adopted by the Texas Supreme Court in
Duncan v. Cessna Aircraft C0., 665 S.W.2d 414 (Tex. 1984), and alleges that, if it is found to be
liable for any portion of damages to Plaintiffs, it is liable only for the percentage of damages for
which it is found comparatively at fault.
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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36. Moreover, should this case be submitted to the jury, [MO alleges that it should be
submitted in a manner that secures a determination as to the relative fault of the causation of
damages by the Decedent and by each of the parties hereto. Any judgment that is to be entered
should be so limited.
37. IMO would show that any alleged defects in its products were beyond both the
scientific and medical knowledge available at the time of manufacturing. IMO would also show
that the then existing state-of—the-art prevented IMO from knowing of any such alleged defects.
38. [MO alleges that its products were at all times reasonably fit and suitable for the
purposes for which they were sold and denies that such products were in any way defective for
such use. Thus, Plaintiffs’ alleged injuries did not result from a defect in any product
manufactured, sold, or distributed by IMO and, if products were altered after leaving [MO’s
control, such changes were the legal cause of any damages.
39. IMO asserts that the acts and omissions of others, including but not limited to
bankrupt entities, the Decedent’s employers, and the Decedent’s fellow workers were the sole
cause of any injuries and damages of the Plaintiffs, if any. This is pled in complete bar, and or
mitigation of Plaintiffs’ claims.
40. [MO adopts all affirmative defenses pled by any other Defendants.
41. IMO reserves its right to amend its pleadings upon completion of discovery.
42. IMO reserves its right to amend and adopt all applicable defenses under the laws
of any other state once the Decedent’s worksites involved in this action have been identified.
43. IMO hereby asserts the government contract defense as articulated in Boyle v.
United Technologies, Corp, 487 U.S. 500 (1988).
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER To PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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V.
REQUEST FOR BIFURCATED TRIAL
44. IMO requests that the issues regarding exemplary damages be bifurcated and that
a separate trial be had upon said issues.
VI.
CROSS-CLAIM
IMO, Defendant in the above-styled and numbered Cause, acting as Cross-Plaintiff, and
for cause of action against Cross-Defendants, would respectfully show the Court as follows:
45. [MO hereby asserts cross claims against all party Defendants, parties who have
settled with Plaintiffs but were not joined as Defendants, and all other parties hereafter joined as
Defendants to this action, excluding WARREN PUMPS, LLC.
46. This Cross-Action is made subject to all defenses heretofore pled by IMO which
denies all fault and liability or responsibility to Plaintiffs for the occurrences made the basis of
this lawsuit and of any alleged injuries and damages claimed by Plaintiffs.
47. In the unlikely event it is determined that IMO is liable to Plaintiffs, which is not
admitted and is expressly denied, then Cross-Plaintiff is entitled to indemnity, or, in the
alternative, contribution from Cross-Defendants, including, but not limited to the doctrine set
forth in the case of Duncan v. Cessna Aircraft C0., 665 S.W. 2d 414 (Tex. 1984), and under the
provisions of Chapter 33 of the Texas Civil Practice and Remedies Code.
VII.
ANSWER TO ALL CROSS-CLAIMS
48. IMO, Defendant herein, files this it’s Answer to all Cross-Actions of any other
Defendant and/or Third-Party Defendant herein suing as Cross-Plaintiff, and, for such Answer,
would respectfully show unto the Court the following:
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss
FOR FORUM NON CONVENIENs, ORIGINAL ANSWER To PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER To ALL CROSS-CLAIMS
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49. Defendant, IMO, enters a General Denial pursuant to the terms and provisions of
Rule 92 of the Texas Rules of Civil Procedure, and denies each and every, all and singular, the
allegations of material fact contained in all Cross-Plaintiffs’ Cross-Actions, and demands strict
proof thereof.
WHEREFORE, PREMISES CONSIDERED, Defendant, IMO moves and prays the
Court that upon trial hereof that Plaintiffs recover nothing over and against it, and, in the
alternative, in the event that Plaintiffs recover judgment against it, that it have and recover
judgment for contribution and/or indemnity against all Cross-Defendants, excluding WARREN
PUMPS, LLC, and for such other and further relief, either at law or in equity, special or general
as to which it may show itself justly entitled.
Respectfully submitted,
JONATHAN R. PRAZAK
LAW OFFICE 0F JONATHAN R. PRAZAK, PLLC
620 West 3rd Street, Ste. 404
Little Rock, Arkansas 72201
(501) 263—1800 (Telephone)
(479) 340—0041 (Facsimne)
jprazak@prazaklaw.com
By: /s/Jonathan R. Prazak
JONATHAN R. PRAZAK
Tex. Bar No. 24072288
ATTORNEY FOR DEFENDANT IMO INDUSTRIES, INC.
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETO, ITs MOTION To DISMIss
FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIFFs’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER TO ALL CROSS-CLAIMS
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument has
been forwarded to counsel for Plaintiff, Darren McDowell, Fears Nachawati, PLLC, 5473 Blair
Road, Dallas, Texas 75231 and to all other known counsel of record Via Lexis File & Serve X-
press electronic service on this 6th day of July, 2022.
/s/ Jonathan Prazak
JONATHAN R. PRAZAK
DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITS MOTION TO DISMISS
FOR FORUM NON CONVENIENs, ORIGINAL ANSWER To PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND
ANSWER To ALL CROSS-CLAIMS
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Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Jonathan Prazak on behalf of Jonathan Prazak
Bar No. 24072288
jprazak@prazaklaw.com
Envelope ID: 66082074
Status as of 7/7/2022 10:16 AM CST
Associated Case Party: FLOWSERVE CORPORATION
Name BarNumber Email TimestampSubmitted Status
James L.Ware jware@sheehyware.com 7/6/2022 9:18:14 PM SENT
Kimberly Rose krose@sheehyware.com 7/6/2022 9:18:14 PM SENT
Wesley Sprague wsprague@sheehyware.com 7/6/2022 9:18:14 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Darren Patrick McDowell 24025520 dmcdowell@fn|awfirm.com 7/6/2022 9:18:14 PM SENT
Chelsea Britton cbritton@fnlawfirm.com 7/6/2022 9:18:14 PM SENT
Jorge Sanchez 101court@dallascounty.org 7/6/2022 9:18:14 PM SENT
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FILED 7/6/2022 9:18 PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Marissa Gomez DEPUTY CAUSE NO. DC-22-05469 VICTORIA MENDOZA, Individually and as § IN THE DISTRICT COURT OF Anticipated Representative of the Estate of § RICARDO MENDOZA, Deceased, RICK § MENDOZA and ANGELO MENDOZA, § § Plaintlff, § DALLAS COUNTY, TEXAS § vs. § § 3M COMPANY, et al., § § Defendants. § IOIST JUDICIAL DISTRICT DEFENDANT IMO INDUSTRIES INC.’S SPECIAL EXCEPTIONS, AND SUBJECT THERETO, ITS MOTION TO DISMISS FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS COMES NOW Defendant, IMO Industries Inc. (incorrectly sued as successor-in-interest to C.H. WHEELER MANUFACTURING COMPANY, ADEL FASTENERS, and WIGGINS CONNECTORS) (“IMO”) and files this, its Special Exceptions, and Subject Thereto, Its Motion to Dismiss for Forum Non Conveniens, Original Answer to Plaintiffs’ Original Petition, Cross- Claim, and Answer to A11 Cross-Claims. I. Special Exceptions 1. Plaintiffs have filed this lawsuit against numerous Defendants claiming that exposure to asbestos caused the claimed injuries and/or death. The Texas Rules of Civil Procedure require that Plaintiffs’ petition “consist of a statement in plain and concise language of the plaintiff s cause of action” and that it must be “sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 45(b) and 47(a). Plaintiffs’ petition only satisfies these requirements DEFENDANT IMO INDUSTRIES INc.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITS MOTION To DISMISS FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER To ALL CROSS-CLAIMS Page 1 of 11 1700.000 if, “it gives fair and adequate notice of the facts upon which the pleader bases his claim . . . [because the purpose] is to give the opposing party information sufficient to enable him to prepare a defense.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) (emphasis added). 2. Plaintiffs’ Original Petition fails to provide IMO with fair and adequate notice of the facts supporting Plaintiffs’ claims sufficient for IMO to prepare its defenses. Specifically, Plaintiffs have not provided IMO with fair and adequate notice regarding what products manufactured, marketed or sold by IMO contributed to the claimed injuries. Therefore, IMO specially excepts to Plaintiffs’ Original Petition. Plaintiff should be required to specifically identify the IMO product or products he claims were manufactured, marketed or sold by IMO. Further, Plaintiffs should be required to describe the alleged circumstances of any work with or around these products in reasonable detail to give fair and adequate notice of the facts upon which Plaintiffs base their claims. 3. IMO specially excepts to Plaintiffs’ Original Petition because Plaintiffs did not plead enough facts to allow IMO to evaluate the venue, forum and jurisdiction issues in this case. 4. Plaintiffs stated that venue is proper in Dallas County because all or a substantial portion of the events that gave rise to the cause of action occurred in the county and/or one or more of the Defendants has its principal place of business in Dallas County. Plaintiffs should not be allowed to allege venue facts in vague terms that are impossible to evaluate. Plaintiffs should indicate the actual basis for venue in Dallas County. 5. Plaintiffs must identify the basis for venue in Dallas County by either pleading what event occurred in this county to contribute to Plaintiffs’ cause of action, or specifically pleading what Defendant has a principal place of business there. If the basis is the latter, DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 2 of 11 1700.000 Plaintiffs should be required to plead What connection that Defendant has to this case so IMO can evaluate the validity of Plaintiffs’ venue claims. II. MOTION TO DISMISS FOR FORUM NON CONVENIENS 7. IMO respectfully requests that this case be dismissed for Forum Non Conveniens, pursuant to Section 71.051 of the Texas Civil Practices and Remedies Code. III. ORIGINAL ANSWER 8. IMO denies each material allegation contained in the Original Petition and demands strict proof thereof by a preponderance of the evidence before this Court and a jury. Moreover, IMO is not obligated to answer any allegations relating to any other Defendant and, therefore, denies them. 9. IMO denies that Plaintiffs sustained any injury or illness caused by, produced by, or resulting from contact With any product manufactured, sold, or distributed by IMO. IV. DEFENSES 10. IMO would show that claims in the Original Petition are barred by statutes of limitation under TEX. CIV. PRAC. & REM. CODE §§ 16.001, et seq., and all other applicable statutes of limitations, including those of strict liability, breach of express or implied warranty, and those of appropriate state jurisdictions. 11. IMO would show that the Due Process Clause of the Fourteenth Amendment of the United States Constitution bars jurisdiction to proceed with this cause because the State of Texas lacks enough contacts with both the parties and the controversy to render an assertion of fair and reasonable jurisdiction. DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION To DISMISS FOR FORUM NON CONVENIENS, ORIGINAL ANSWER To PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER To ALL CROSS-CLAIMS Page 3 of 11 1700.000 12. IMO would show that, alternatively, this Court should decline jurisdiction under the doctrine of forum non conveniens. 13. IMO would show that Plaintiffs are not entitled to recover for any alleged breach of express or implied warranty, as there are neither any express or implied warranties nor any privity of contract between IMO and Plaintiffs. 14. IMO would show that the Decedent may have assumed the risk of any injuries or damages allegedly incurred as a result of exposure to products manufactured, sold, or distributed by IMO because the Decedent, or his employers, may have had equal or greater knowledge of the alleged hazards of exposure to asbestos. Additionally, IMO would show that the Decedent may have used the product without showing proper regard for his/her own health and safety. 15. IMO would show that there could be no strict liability claim for any alleged exposure to toxic materials and substances occurring prior to June 7, 1967, because the Texas Supreme Court did not adopt strict liability under Section 402A, RESTATEMENT (SECOND) 0F TORTS, until then in McKisson v. Sales, 416 S.W.2d 787 (Tex. 1967). 16. IMO would show that Plaintiffs should not recover exemplary damages because such an award, pursuant to either TEX. CIV. PRAC. & REM. CODE §§ 41.001, et seq., or common law, would: (1) violate the Excessive Fines Clause of the Eighth Amendment of the United States Constitution by failing to place a limit on the amount; (2) be void for vagueness and violative of the Equal Protection Clause of the Fifth and Fourteenth Amendments of the United States Constitution; or (3) violate Article 1, Sections 10 and 13 of the Constitution of the State of Texas. 17. IMO would show that an exemplary damages award requires proof by clear and DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 4 of 11 1700.000 convincing evidence to comport with the Due Process Clause of the Fourteenth Amendment of the United States Constitution, Section 19 of the Constitution of the State of Texas, and the constitution and laws of any other applicable state. 18. IMO would show that TEX. CIV. PRAC. & REM. CODE § 41.008 limits exemplary damages to a maximum of two times economic damages plus an amount equal to any noneconomic damages found by a jury not to exceed $750,000, or $200,000.00, whichever is greater. l9. IMO would show that, if it manufactured, distributed, or sold any asbestos- containing products, any alleged exposure of the Decedent to those products was de minimis and insufficient to establish to a reasonable degree of probability that they caused any alleged injury. 20. [MO would show that there should be no recovery against it because the superseding and intervening negligence of third parties caused Plaintiffs’ alleged injuries, and this conduct, either by omission or commission, interrupted the natural and proximate causal relationship between any alleged act or omission of IMO and Plaintiffs’ alleged resulting injuries and damages. 21. IMO would show that there should be no recovery against it because Plaintiffs failed to mitigate any alleged damages. 22. IMO would show that the Workers’ Compensation Act provides, as an exclusive remedy, compensation benefits for the disability of an employee if such disability resulted from an injury, or occupational disease, and was incurred, or sustained, in the course of employment. Moreover, IMO would further show that any alleged exposure of the Decedent to any IMO products occurred during a period when an entity then subscribing to Workers’ Compensation DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENs, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER To ALL CROSS-CLAIMS Page 5 of 11 1700.000 insurance employed the Decedent. Thus, IMO would Show that Workers’ Compensation, with its attendant benefits, is the exclusive remedy for any alleged injury or occupational disease incurred. 23. IMO would show that, at all relevant times, its products complied with industry, federal, and state standards and regulations governing the manufacturing, sale, packaging, and distribution of such products. 24. IMO would show that any alleged absence of warning did not lead the Decedent to rely on the safety of any product at issue. 25. IMO would show that recovery is barred because the Decedent’s misuse, or improper use, of the products at issue was the sole cause of any alleged resulting injuries or damages or, alternatively, was the proximate or producing cause, or contributed to causing, Plaintiffs’ alleged injuries or damages. 26. IMO would show that Plaintiffs’ recovery is barred because the Decedent’s negligent conduct, or fault, was the sole cause of the alleged resulting injuries or damages. 27. IMO would show that Plaintiffs’ recovery is barred because the negligent conduct, or fault, of Decedent was a proximate and producing cause of any injuries or damages, and also exceeded any negligence, or other fault, of IMO and other Defendants. Alternatively, IMO would show that the claims of Plaintiffs are barred to the extent of the Decedent’s comparative negligence or fault. Moreover, IMO would show that the Decedent’s negligence, whether it be the sole cause or a contributing cause, is a complete bar to recovery to the extent that any alleged exposure occurred prior to September 30, 1972. 28. IMO would show that other named Defendants caused any alleged injuries or DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 6 of 11 1700.000 damages sustained by Plaintiffs and IMO held no right of control over these Defendants. 29. Alternatively, IMO would show that it breached no duty because the Decedent, or his superiors, knew about any alleged risks associated with the products’ use. 30. Alternatively, IMO would show that it breached no duty because the Decedent’s employers or supervisors knew about any alleged dangers of which Plaintiffs now complain, and IMO hereby asserts the defense of sophisticated user/leamed intermediary. 31. IMO would show that any alleged injuries were either preexisting or not the result of contact with any products manufactured, sold, or distributed by IMO. 32. IMO would show there is no product liability claim from any alleged exposure under TEX. CIV. PRAC. & REM. CODE §§ 82.001, et seq. 33. IMO would show that there was no concert of action between it and any other named Defendants. 34. IMO would show that pursuant to Chapters 32 and 33 of the Texas Civil Practices and Remedies Code, and without accepting the truth of the pleadings and denying all liability, IMO reserves its right, if it is found to have any liability to Plaintiffs, to a set-off, percentage, or pro rata reduction of any such liability, or to a credit for the amount of any settlement paid by each settling Defendants. 35. Alternatively, in the event it is not otherwise entitled to judgment as a matter of law, IMO invokes the apportionment of damages system adopted by the Texas Supreme Court in Duncan v. Cessna Aircraft C0., 665 S.W.2d 414 (Tex. 1984), and alleges that, if it is found to be liable for any portion of damages to Plaintiffs, it is liable only for the percentage of damages for which it is found comparatively at fault. DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 7 of 11 1700.000 36. Moreover, should this case be submitted to the jury, [MO alleges that it should be submitted in a manner that secures a determination as to the relative fault of the causation of damages by the Decedent and by each of the parties hereto. Any judgment that is to be entered should be so limited. 37. IMO would show that any alleged defects in its products were beyond both the scientific and medical knowledge available at the time of manufacturing. IMO would also show that the then existing state-of—the-art prevented IMO from knowing of any such alleged defects. 38. [MO alleges that its products were at all times reasonably fit and suitable for the purposes for which they were sold and denies that such products were in any way defective for such use. Thus, Plaintiffs’ alleged injuries did not result from a defect in any product manufactured, sold, or distributed by IMO and, if products were altered after leaving [MO’s control, such changes were the legal cause of any damages. 39. IMO asserts that the acts and omissions of others, including but not limited to bankrupt entities, the Decedent’s employers, and the Decedent’s fellow workers were the sole cause of any injuries and damages of the Plaintiffs, if any. This is pled in complete bar, and or mitigation of Plaintiffs’ claims. 40. [MO adopts all affirmative defenses pled by any other Defendants. 41. IMO reserves its right to amend its pleadings upon completion of discovery. 42. IMO reserves its right to amend and adopt all applicable defenses under the laws of any other state once the Decedent’s worksites involved in this action have been identified. 43. IMO hereby asserts the government contract defense as articulated in Boyle v. United Technologies, Corp, 487 U.S. 500 (1988). DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER To PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 8 of 11 1700.000 V. REQUEST FOR BIFURCATED TRIAL 44. IMO requests that the issues regarding exemplary damages be bifurcated and that a separate trial be had upon said issues. VI. CROSS-CLAIM IMO, Defendant in the above-styled and numbered Cause, acting as Cross-Plaintiff, and for cause of action against Cross-Defendants, would respectfully show the Court as follows: 45. [MO hereby asserts cross claims against all party Defendants, parties who have settled with Plaintiffs but were not joined as Defendants, and all other parties hereafter joined as Defendants to this action, excluding WARREN PUMPS, LLC. 46. This Cross-Action is made subject to all defenses heretofore pled by IMO which denies all fault and liability or responsibility to Plaintiffs for the occurrences made the basis of this lawsuit and of any alleged injuries and damages claimed by Plaintiffs. 47. In the unlikely event it is determined that IMO is liable to Plaintiffs, which is not admitted and is expressly denied, then Cross-Plaintiff is entitled to indemnity, or, in the alternative, contribution from Cross-Defendants, including, but not limited to the doctrine set forth in the case of Duncan v. Cessna Aircraft C0., 665 S.W. 2d 414 (Tex. 1984), and under the provisions of Chapter 33 of the Texas Civil Practice and Remedies Code. VII. ANSWER TO ALL CROSS-CLAIMS 48. IMO, Defendant herein, files this it’s Answer to all Cross-Actions of any other Defendant and/or Third-Party Defendant herein suing as Cross-Plaintiff, and, for such Answer, would respectfully show unto the Court the following: DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITs MOTION TO DISMIss FOR FORUM NON CONVENIENs, ORIGINAL ANSWER To PLAINTIEEs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER To ALL CROSS-CLAIMS Page 9 of 11 1700.000 49. Defendant, IMO, enters a General Denial pursuant to the terms and provisions of Rule 92 of the Texas Rules of Civil Procedure, and denies each and every, all and singular, the allegations of material fact contained in all Cross-Plaintiffs’ Cross-Actions, and demands strict proof thereof. WHEREFORE, PREMISES CONSIDERED, Defendant, IMO moves and prays the Court that upon trial hereof that Plaintiffs recover nothing over and against it, and, in the alternative, in the event that Plaintiffs recover judgment against it, that it have and recover judgment for contribution and/or indemnity against all Cross-Defendants, excluding WARREN PUMPS, LLC, and for such other and further relief, either at law or in equity, special or general as to which it may show itself justly entitled. Respectfully submitted, JONATHAN R. PRAZAK LAW OFFICE 0F JONATHAN R. PRAZAK, PLLC 620 West 3rd Street, Ste. 404 Little Rock, Arkansas 72201 (501) 263—1800 (Telephone) (479) 340—0041 (Facsimne) jprazak@prazaklaw.com By: /s/Jonathan R. Prazak JONATHAN R. PRAZAK Tex. Bar No. 24072288 ATTORNEY FOR DEFENDANT IMO INDUSTRIES, INC. DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETO, ITs MOTION To DISMIss FOR FORUM NON CONVENIENS, ORIGINAL ANSWER TO PLAINTIFFs’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER TO ALL CROSS-CLAIMS Page 10 of 11 1700.000 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument has been forwarded to counsel for Plaintiff, Darren McDowell, Fears Nachawati, PLLC, 5473 Blair Road, Dallas, Texas 75231 and to all other known counsel of record Via Lexis File & Serve X- press electronic service on this 6th day of July, 2022. /s/ Jonathan Prazak JONATHAN R. PRAZAK DEFENDANT IMO INDUSTRIES INC.’s SPECIAL EXCEPTIONS, AND SUBJECT THERETo, ITS MOTION TO DISMISS FOR FORUM NON CONVENIENs, ORIGINAL ANSWER To PLAINTIEES’ ORIGINAL PETITION, CROSS-CLAIM, AND ANSWER To ALL CROSS-CLAIMS Page 11 of 11 1700.000 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jonathan Prazak on behalf of Jonathan Prazak Bar No. 24072288 jprazak@prazaklaw.com Envelope ID: 66082074 Status as of 7/7/2022 10:16 AM CST Associated Case Party: FLOWSERVE CORPORATION Name BarNumber Email TimestampSubmitted Status James L.Ware jware@sheehyware.com 7/6/2022 9:18:14 PM SENT Kimberly Rose krose@sheehyware.com 7/6/2022 9:18:14 PM SENT Wesley Sprague wsprague@sheehyware.com 7/6/2022 9:18:14 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Darren Patrick McDowell 24025520 dmcdowell@fn|awfirm.com 7/6/2022 9:18:14 PM SENT Chelsea Britton cbritton@fnlawfirm.com 7/6/2022 9:18:14 PM SENT Jorge Sanchez 101court@dallascounty.org 7/6/2022 9:18:14 PM SENT