On April 12, 2022 a
Answer
was filed
involving a dispute between
Shields, Robert Clay,
and
3M Company,
4520 Corporation, Inc.,
Able Supply Co.,
Ametek, Inc.,
Ashland, Llc,
Bw Ip International, Inc.,
Champion Oil Company,
Champlain Cable Corporation,
Crane Co.,
Elliott Company F K A And D B A Elliott Turbomachinery Company,
Exxon Mobil Corporation,
Flowserve Corporation,
Flowserve Us, Inc.,
Fmc Corporation,
Foster Wheeler Energy Corporation,
General Electric Company,
Goulds Pumps, Incorporated,
Hercules Llc,
International Paper Company,
Itt Corporation,
John Crane, Inc.,
Lamons Gasket Company,
Metropolitan Life Insurance Company,
Riley Power, Inc.,
Shell Oil Company,
Sterling Fluid Systems,
The Goodyear Tire & Rubber Company,
The William Powell Company,
Union Carbide Corporation,
Valero Refining - Texas, Lp,
Velan Valve Corporation,
Viacomcbs Inc.,
Warren Pumps, Llc;,
for OTHER (CIVIL)
in the District Court of Dallas County.
Preview
FILED
5/3/2022 1:45 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY
CAUSE NO. 22-03980
ROBERT CLAY SHIELDS, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
VS. § DALLAS COUNTY, TEXAS
§
3M CO., a/k/a MINNESOTA MINING & § 134T“ JUDICIAL DISTRICT
MANUFACTURING COMPANY ET AL., §
Defendants
DEFENDANT UNION CARBIDE CORPORATION’S ANSWER TO PLAIN TIFFS’
PETITION AND JURY DEMAND,
SUBJECT T0 ITS MOTION TO TRANSFER VENUE
Defendant, UNION CARBIDE CORPORATION’S (hereinafter UCC or Defendant) files this
Motion to Transfer Venue and would show as follows:
1. This motion is filed before or concurrently with any other plea, pleading, or motion.
2. Texas law requires that venue facts be pleaded specifically. The allegations contained in
the paragraph 1 of Plaintiff’s Petition and Jury Demand are insufficient to support venue against UCC
in Dallas County. The allegation that “venue is proper in this county because all or a substantial part of
the events or omissions giving rise to this cause of action arose in this county” is impermissibly vague
and is not sufficient to establish venue in Dallas County. Plaintiffs pleadings fail to identify any act or
omission giving rise to this action that allegedly occurred in Dallas County. Plaintiff’s pleadings fail to
identify any act or omission giving rise to this action that allegedly occurred in Dallas County where
Decedent was allegedly exposed to asbestos.
3. UCC specifically denies the vague and conclusory allegations in paragraph 2 of Plaintiff’s
Petition and Jury, Further:
a. UCC specifically denies that venue is proper in Dallas County.
b. UCC specifically denies that all or a substantial part of the events or omissions giving
rise to this cause of action arose in Dallas County.
UNION CARBIDE CORPORA TION ‘S Answer to Plaintifl’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page I
c. UCC specifically denies that all or a substantial portion of Decedent’s exposure to
asbestos and asbestos-containing products occurred in Dallas County.
d. UCC specifically denies that any properly joined Defendant has a principal office in
Dallas County.
e. UCC specifically denies that venue of Plaintiff’s claims against it would be proper in
Dallas County even if venue were to be proper in Dallas county on any claims allegedly
asserted against any other Defendant who allegedly has a principal office in Dallas
County.
f. UCC specifically denies that all of Plaintiff’s claims arise out of the same transaction,
occurrence, or series of transactions or occurrences.
g. UCC specifically denies that all parties are properly joined in this action pursuant to TEX.
R. CIV. P. 40(a).
h. UCC specifically denies that venue is mandatory in Dallas County.
4. UCC denies that Plaintiff has any cause of action against it. As permitted by Rule 87.2(b)
of the TEXAS RULES OF CIVIL PROCEDURE, UCC alleges that if causes of action exist against it in
favor of Plaintiff, then all or a substantial part of the events or omissions giving rise to the alleged causes
of action occurred in a county or counties other than Dallas County. This allegation is not, and may not
be used as, an admission that any cause of action in fact exists against UCC.
5. UCC prays that the Court set this motion of transfer venue for hearing and that, upon
hearing. UCC further prays that all costs be taxed against Plaintiff and UCC has all other relief to which
it may show itself entitled.
UNION CARBIDE CORPORATION’S ANSWER
SUBJECT TO ITS MOTION TO TRANSFER VENUE
Subject to and without waiving its motion to transfer venue, Defendant, UNION CARBIDE
CORPORATION’S makes this Answer to Plaintiffs’ Petition and Jury Demand as follows:
UNION CARBIDE CORPORA TION ‘S Answer to Plaintifi's Petition and Jwy Demand Subject to its Motion to Transfer Venue. Page 2
Plaintiff‘s Petition fails to state a cause of action upon which relief can be granted.
II.
UCC denies each and every, all and singular, material allegations contained in Plaintiffs’
Petition and Jury Demand and specifically denies that Plaintiffs sustained any injury as a result of
contact with or use of any product manufactured by this Defendant or at any premise owned or
operated by this Defendant.
III.
Plaintiffs are barred from recovery herein by the applicable statutes of limitations and/or statutes
of repose.
IV.
Plaintiffs are barred fiom recovery herein by the doctrine of assumption of risk (volenti non fit
injuria).
V.
Plaintiffs are barred fiom recovery herein by the doctrine of misuse or improper use which
proximately caused or proximately contributed to cause the injuries about which Plaintiff complains
herein.
VI.
Plaintiffs are barred from recovery herein by the doctrines of comparative negligence,
contributory negligence, comparative responsibility and/or comparative causation.
WION CARBIDE CORPORA TION ‘S Answer to Plaintzfi’s Petition and July Demand Subject to its Motion to Transfer Venue. Page 3
VII.
This Defendant alleges that any injuries and Plaintiff’s were solely caused
damages alleged by
by the acts and omissions of others over whom this Defendant had no supervision or control and there
was no damage from the conduct of this Defendant and no substantial damages by any other Defendants.
VIII.
This Defendant alleges that Plaintiff and/or Plaintiffs employers had knowledge of the products
used and the risks incident thereto and therefore this Defendant breached no duty owing to them.
IX.
This Defendant alleges that the situation about which Plaintiffs complains herein arose out of
transitory conditions arising out of the very work of Plaintiff and/or Plaintiffs decedent and therefore
this Defendant breached no duty and has no liability.
X.
This Defendant alleges that the condition about which Plaintiffs complain is due to causes other
than exposure to asbestos and asbestos dust.
XI.
This Defendant alleges that Plaintiffs have no claim based upon allegations of strict liability
arising from any alleged exposure to asbestos dust from any product containing asbestos prior to June 6,
1967, because no cause of action existed in Texas based upon strict liability in tort for exposure to a
product, since the Supreme Court of Texas in McKisson vs. Sales Affiliates Inc., 416 S.W.2d 787, held
that prior to 1967, it had refused to extend "strict liability" to any manufacturer other than the
manufacturers and packagers of food products for human consumption, and the rule of 402A was adopted
for the first time in June, 1967. The Supreme Court of Texas would not apply the rule of strict liability
retroactively to cover exposures prior to June 1967; therefore, this Defendant pleads that no recovery
can be had upon the theory of strict liability for exposures, if any, prior to June 6, 1967. Further, the
application of strict liability on a retroactive basis would be violative of Article I, §16, of the Texas
Constitution.
UNION CARBIDE CORPORA TION 'S Answer to Plaintifl'k Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 4
XII.
This Defendant alleges that Plaintiff‘s and/or Plaintiff‘s decedent's injuries, if any, were
pre-existing and/or not the result of any contact with any products manufactured, sold, or distributed by
this Defendant.
XIII.
This Defendant alleges that they did not manufacture, sell, or distribute asbestos-containing
insulation products during the alleged time of exposure by Plaintiff and/or Plaintiffs decedent.
XIV.
This Defendant alleges Plaintiff‘s and/or Plaintiffs decedent's injuries, if any, were caused in
whole or in part by Plaintiffs and/or Plaintiffs decedent's history of smoking and failure to stop smoking
and Plaintiff and/or Plaintiffs decedent were negligent and assumed any risks related to such smoking.
Plaintiffs claims, therefore, are barred by the doctrines of comparative fault, comparative responsibility,
contributory negligence and/or comparative causation.
XV.
This Defendant alleges that Plaintiffs’ action against this Defendant for injuries sustained, if any,
from asbestos-containing insulation products used while employed by this Defendant is barred by the
exclusive remedy provision of the Workers Compensation Act.
XVI.
This Defendant alleges that they are not legally liable for the sale, distribution, application, or
manufacture of any asbestos-containing insulation product by any former or current subsidiary or
predecessor.
XVII.
This Defendant alleges they are entitled to indemnity from the manufacture of any
asbestos-containing insulation product sold, distributed, or applied by other Defendants which results in
any liability to this Defendant.
UNION CARBIDE CORPORA TION'S Answer to Plaintifl’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 5
XVIII.
This Defendant adopts by reference each defense not hereinabove alleged, if any, that may be
alleged in any pleading by any other Defendants or Third-Party Defendants in this action, heretofore or
hereafier filed.
XIX.
This Defendant alleges that they are entitled to indemnity and/or contribution fiom each of the
other Defendants and/or a credit or pro rata reduction for any amounts paid by settling Defendants
pursuant to Chapter 32 and Chapter 33 of the Texas Civil Practice and Remedies Code, and/or the
doctrine of comparative fault.
XX.
This Defendant alleges that Plaintiffs’ damages, if any, were caused by negligent acts or
omissions or breach of warranty of third parties or other Defendants and/or exposure to certain products
manufactured or distributed by said third parties or Defendants, and, under the Supreme Court of Texas
opinion in Duncan v. Cessna Aircrafi Company II, this Defendant is entitled to a comparative
apportionment of fault, if any, as to the other Defendants and Cross—Defendants and/or third parties and
is entitled to a judgment against them herein for contribution and/or indemnity or a percentage reduction
in accordance with the apportionment of fault.
XXI.
This Defendant is not liable to Plaintiffs because the products to which Plaintiff and/or Plaintiffs
decedent were allegedly exposed were formulated and manufactured in accordance with specifications
and/or regulations of the United States Government and Defendant claims the benefit of the
"Government Contractor Defense" announced in Yearly v. W. A. Ross Construction Co., 304 U.S. 18
(1940) and in In Re Agent Orange Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y., 1982).
UNION CARBIDE CORPORA TI0N 'S Answer to Plaz'ntifi”s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 6
XXII.
This Defendant alleges, in the alternative, that the Plaintiffs claim of injury and damage, if any,
was the result of an unavoidable accident or occurrence.
XXIII.
Defendant further says that the state of knowledge of the medical and scientific communities
prior to recent years as it related to exposure of the asbestos insulation worker or other worker in a similar
work environment was such that the medical and scientific communities were of the opinion that the
exposures to which such workers were subject was below the Threshold Limit Values recommended by
the American Conference of Government Hygienists for dust-containing asbestos particles and such
occupation was reasonably safe. Therefore, the manufacturer of asbestos insulation materials was
charged with no greater knowledge than that of the medical and scientific communities and such
manufacturers had no reason to foresee or warn of any injury to such workers from the application of or
exposure to insulation products that contained some asbestos.
XXIV.
This Defendant alleges that any alleged defects in their product, if any, were beyond the scientific
and medical knowledge available at the time of manufacturing, and the state-of-the-art prevented this
Defendant from knowing any defect.
XXV.
This Defendant alleges that the products which they sold were at all times reasonably fit and
suitable for the purposes for which they were sold, and this Defendant denies that such products were in
anywise defective for the use for which they were sold.
UNION CARBIDE CORPORA TION’S Answer to Plaintifi"s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 7
XXVI.
This Defendant pleads that exemplary damages are improper and that an award of punitive
damages would amount to excessive punishment in violation of due process of law and in violation of
the Constitutions of the United States, the State of Texas, and any other state which has the most
significant relationship to this action, and of the common law. If this Honorable Court rejects such
assertion, and pleading in the alternative, if necessary, this Defendant invokes Texas Civil Practice and
Remedies Code, § 41 .008(b), providing that exemplary damages awarded against a Defendant may not
exceed an amount equal to two times the amount of economic damages plus an amount equal to any non-
economic damages found by the jury, not to exceed $750,000.00; or $200,000.00, whichever is greater,
or the applicable exemplary damage limit or exclusion in any other state or admiralty jurisdiction, which
has the vested significant relationship to this action.
XXVII.
In accordance with T. R. C. P., 94, this Defendant pleads as affirmative defense, accord,
satisfaction and release.
XXIII.
This Defendant further affirmatively pleads that this court does not have jurisdiction nor authority
to award punitive damages for any alleged act or omission which occurred outside the state of Texas.
This Defendant further affirmatively pleads that pursuant to the doctrine of BMW of North America v.
116 S. Ct. 1589 (1996) no state has the power to project its practices and policies upon any other
sister state; therefore, the court sitting in the state of Texas lacks the authority or jurisdiction to award
punitive damages for alleged acts or omission, whether the result of intentional misconduct or
negligence, which occurs outside the state of Texas. Any such award of punitive damages would be
grossly excessive, unconstitutional and in violation of the due process clause of the U.S. Constitution.
UNION CARBIDE CORPORA TION ’S Answer to Plaintifi‘s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 8
WHEREORE PREMISES CONSIDERED, UNION CARBIDE CORPORATION, requests
judgment of the Court as follows:
l. That judgment be rendered for UNION CARBIDE CORPORATION, on the pleadings, or
that this action be dismissed or of this action is not dismissed that Plaintiffs take nothing by
this suit.
2. That UNION CARBIDE CORPORATION, recovers all costs together with such other and
further relief to which Defendant may be justly entitled.
Respectfully submitted,
DEHAY & ELLISTON, L.L.P.
3500 BANK OF AMERICA PLAZA
901 Main Street
Dallas 3736
(214) 2 11233721 50
By
GARY D. ELLISTON
State Bar No. 06584700
gelliston@dehay.com
COUNSEL FOR
UNION CARBIDE CORPORATION,
UNION CARBIDE CORPORA TION'S Answer to Plaintifi"s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 9
CERTIFICATE 0F SERVICE
I certify that a true and correct copy of the foregoing instrument has been forwarded to
counsel of record for Plaintiff herein, Darren McDowell, Fears Nachawati, PLLC, 5473 Blair Road,
Dallas, Texas 75231 via Lexis/Nexis, return receipt requested this day of May 2022.
/s/: Misti D. Mosteller
MISTI D. MOSTELLER
mmostcller@dehay.com
UNION CARBIDE CORPORA TION 'S Answer to Plaintzfi’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 10
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.
Screnthia Walker on behalf of Misti Mosteller
Bar No. 24012778
scwalker@dehay.com
Envelope ID: 64140253
Status as of 5/3/2022 2:10 PM CST
Associated Case Party: ROBERTCLAYSHIELDS
Name BarNumber Email TimestampSubmitted Status
DARREN MCDOWELL dmcdowell@fnlawfirm.com 5/3/2022 1:45:59 PM SENT
DARREN MC DOWELL dmcdowell@fnlawfirm.com 5/3/2022 1:45:59 PM SENT
Associated Case Party: JOHN CRANE, INC.
Name BarNumber Email TimestampSubmitted Status
Laura Kugler Ikugler@grsm.com 5/3/2022 1:45:59 PM SENT
Debbie Maxey dmaxey@grsm.com 5/3/2022 1:45:59 PM SENT
Associated Case Party: UNION CARBIDE CORPORATION
Name BarNumber Email Timestam pSubmitted Status
Misti Mosteller mmosteller@dehay.com 5/3/2022 1:45:59 PM SENT
Preview
FILED 5/3/2022 1:45 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Marissa Gomez DEPUTY CAUSE NO. 22-03980 ROBERT CLAY SHIELDS, § IN THE DISTRICT COURT OF § Plaintiffs, § VS. § DALLAS COUNTY, TEXAS § 3M CO., a/k/a MINNESOTA MINING & § 134T“ JUDICIAL DISTRICT MANUFACTURING COMPANY ET AL., § Defendants DEFENDANT UNION CARBIDE CORPORATION’S ANSWER TO PLAIN TIFFS’ PETITION AND JURY DEMAND, SUBJECT T0 ITS MOTION TO TRANSFER VENUE Defendant, UNION CARBIDE CORPORATION’S (hereinafter UCC or Defendant) files this Motion to Transfer Venue and would show as follows: 1. This motion is filed before or concurrently with any other plea, pleading, or motion. 2. Texas law requires that venue facts be pleaded specifically. The allegations contained in the paragraph 1 of Plaintiff’s Petition and Jury Demand are insufficient to support venue against UCC in Dallas County. The allegation that “venue is proper in this county because all or a substantial part of the events or omissions giving rise to this cause of action arose in this county” is impermissibly vague and is not sufficient to establish venue in Dallas County. Plaintiffs pleadings fail to identify any act or omission giving rise to this action that allegedly occurred in Dallas County. Plaintiff’s pleadings fail to identify any act or omission giving rise to this action that allegedly occurred in Dallas County where Decedent was allegedly exposed to asbestos. 3. UCC specifically denies the vague and conclusory allegations in paragraph 2 of Plaintiff’s Petition and Jury, Further: a. UCC specifically denies that venue is proper in Dallas County. b. UCC specifically denies that all or a substantial part of the events or omissions giving rise to this cause of action arose in Dallas County. UNION CARBIDE CORPORA TION ‘S Answer to Plaintifl’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page I c. UCC specifically denies that all or a substantial portion of Decedent’s exposure to asbestos and asbestos-containing products occurred in Dallas County. d. UCC specifically denies that any properly joined Defendant has a principal office in Dallas County. e. UCC specifically denies that venue of Plaintiff’s claims against it would be proper in Dallas County even if venue were to be proper in Dallas county on any claims allegedly asserted against any other Defendant who allegedly has a principal office in Dallas County. f. UCC specifically denies that all of Plaintiff’s claims arise out of the same transaction, occurrence, or series of transactions or occurrences. g. UCC specifically denies that all parties are properly joined in this action pursuant to TEX. R. CIV. P. 40(a). h. UCC specifically denies that venue is mandatory in Dallas County. 4. UCC denies that Plaintiff has any cause of action against it. As permitted by Rule 87.2(b) of the TEXAS RULES OF CIVIL PROCEDURE, UCC alleges that if causes of action exist against it in favor of Plaintiff, then all or a substantial part of the events or omissions giving rise to the alleged causes of action occurred in a county or counties other than Dallas County. This allegation is not, and may not be used as, an admission that any cause of action in fact exists against UCC. 5. UCC prays that the Court set this motion of transfer venue for hearing and that, upon hearing. UCC further prays that all costs be taxed against Plaintiff and UCC has all other relief to which it may show itself entitled. UNION CARBIDE CORPORATION’S ANSWER SUBJECT TO ITS MOTION TO TRANSFER VENUE Subject to and without waiving its motion to transfer venue, Defendant, UNION CARBIDE CORPORATION’S makes this Answer to Plaintiffs’ Petition and Jury Demand as follows: UNION CARBIDE CORPORA TION ‘S Answer to Plaintifi's Petition and Jwy Demand Subject to its Motion to Transfer Venue. Page 2 Plaintiff‘s Petition fails to state a cause of action upon which relief can be granted. II. UCC denies each and every, all and singular, material allegations contained in Plaintiffs’ Petition and Jury Demand and specifically denies that Plaintiffs sustained any injury as a result of contact with or use of any product manufactured by this Defendant or at any premise owned or operated by this Defendant. III. Plaintiffs are barred from recovery herein by the applicable statutes of limitations and/or statutes of repose. IV. Plaintiffs are barred fiom recovery herein by the doctrine of assumption of risk (volenti non fit injuria). V. Plaintiffs are barred fiom recovery herein by the doctrine of misuse or improper use which proximately caused or proximately contributed to cause the injuries about which Plaintiff complains herein. VI. Plaintiffs are barred from recovery herein by the doctrines of comparative negligence, contributory negligence, comparative responsibility and/or comparative causation. WION CARBIDE CORPORA TION ‘S Answer to Plaintzfi’s Petition and July Demand Subject to its Motion to Transfer Venue. Page 3 VII. This Defendant alleges that any injuries and Plaintiff’s were solely caused damages alleged by by the acts and omissions of others over whom this Defendant had no supervision or control and there was no damage from the conduct of this Defendant and no substantial damages by any other Defendants. VIII. This Defendant alleges that Plaintiff and/or Plaintiffs employers had knowledge of the products used and the risks incident thereto and therefore this Defendant breached no duty owing to them. IX. This Defendant alleges that the situation about which Plaintiffs complains herein arose out of transitory conditions arising out of the very work of Plaintiff and/or Plaintiffs decedent and therefore this Defendant breached no duty and has no liability. X. This Defendant alleges that the condition about which Plaintiffs complain is due to causes other than exposure to asbestos and asbestos dust. XI. This Defendant alleges that Plaintiffs have no claim based upon allegations of strict liability arising from any alleged exposure to asbestos dust from any product containing asbestos prior to June 6, 1967, because no cause of action existed in Texas based upon strict liability in tort for exposure to a product, since the Supreme Court of Texas in McKisson vs. Sales Affiliates Inc., 416 S.W.2d 787, held that prior to 1967, it had refused to extend "strict liability" to any manufacturer other than the manufacturers and packagers of food products for human consumption, and the rule of 402A was adopted for the first time in June, 1967. The Supreme Court of Texas would not apply the rule of strict liability retroactively to cover exposures prior to June 1967; therefore, this Defendant pleads that no recovery can be had upon the theory of strict liability for exposures, if any, prior to June 6, 1967. Further, the application of strict liability on a retroactive basis would be violative of Article I, §16, of the Texas Constitution. UNION CARBIDE CORPORA TION 'S Answer to Plaintifl'k Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 4 XII. This Defendant alleges that Plaintiff‘s and/or Plaintiff‘s decedent's injuries, if any, were pre-existing and/or not the result of any contact with any products manufactured, sold, or distributed by this Defendant. XIII. This Defendant alleges that they did not manufacture, sell, or distribute asbestos-containing insulation products during the alleged time of exposure by Plaintiff and/or Plaintiffs decedent. XIV. This Defendant alleges Plaintiff‘s and/or Plaintiffs decedent's injuries, if any, were caused in whole or in part by Plaintiffs and/or Plaintiffs decedent's history of smoking and failure to stop smoking and Plaintiff and/or Plaintiffs decedent were negligent and assumed any risks related to such smoking. Plaintiffs claims, therefore, are barred by the doctrines of comparative fault, comparative responsibility, contributory negligence and/or comparative causation. XV. This Defendant alleges that Plaintiffs’ action against this Defendant for injuries sustained, if any, from asbestos-containing insulation products used while employed by this Defendant is barred by the exclusive remedy provision of the Workers Compensation Act. XVI. This Defendant alleges that they are not legally liable for the sale, distribution, application, or manufacture of any asbestos-containing insulation product by any former or current subsidiary or predecessor. XVII. This Defendant alleges they are entitled to indemnity from the manufacture of any asbestos-containing insulation product sold, distributed, or applied by other Defendants which results in any liability to this Defendant. UNION CARBIDE CORPORA TION'S Answer to Plaintifl’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 5 XVIII. This Defendant adopts by reference each defense not hereinabove alleged, if any, that may be alleged in any pleading by any other Defendants or Third-Party Defendants in this action, heretofore or hereafier filed. XIX. This Defendant alleges that they are entitled to indemnity and/or contribution fiom each of the other Defendants and/or a credit or pro rata reduction for any amounts paid by settling Defendants pursuant to Chapter 32 and Chapter 33 of the Texas Civil Practice and Remedies Code, and/or the doctrine of comparative fault. XX. This Defendant alleges that Plaintiffs’ damages, if any, were caused by negligent acts or omissions or breach of warranty of third parties or other Defendants and/or exposure to certain products manufactured or distributed by said third parties or Defendants, and, under the Supreme Court of Texas opinion in Duncan v. Cessna Aircrafi Company II, this Defendant is entitled to a comparative apportionment of fault, if any, as to the other Defendants and Cross—Defendants and/or third parties and is entitled to a judgment against them herein for contribution and/or indemnity or a percentage reduction in accordance with the apportionment of fault. XXI. This Defendant is not liable to Plaintiffs because the products to which Plaintiff and/or Plaintiffs decedent were allegedly exposed were formulated and manufactured in accordance with specifications and/or regulations of the United States Government and Defendant claims the benefit of the "Government Contractor Defense" announced in Yearly v. W. A. Ross Construction Co., 304 U.S. 18 (1940) and in In Re Agent Orange Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y., 1982). UNION CARBIDE CORPORA TI0N 'S Answer to Plaz'ntifi”s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 6 XXII. This Defendant alleges, in the alternative, that the Plaintiffs claim of injury and damage, if any, was the result of an unavoidable accident or occurrence. XXIII. Defendant further says that the state of knowledge of the medical and scientific communities prior to recent years as it related to exposure of the asbestos insulation worker or other worker in a similar work environment was such that the medical and scientific communities were of the opinion that the exposures to which such workers were subject was below the Threshold Limit Values recommended by the American Conference of Government Hygienists for dust-containing asbestos particles and such occupation was reasonably safe. Therefore, the manufacturer of asbestos insulation materials was charged with no greater knowledge than that of the medical and scientific communities and such manufacturers had no reason to foresee or warn of any injury to such workers from the application of or exposure to insulation products that contained some asbestos. XXIV. This Defendant alleges that any alleged defects in their product, if any, were beyond the scientific and medical knowledge available at the time of manufacturing, and the state-of-the-art prevented this Defendant from knowing any defect. XXV. This Defendant alleges that the products which they sold were at all times reasonably fit and suitable for the purposes for which they were sold, and this Defendant denies that such products were in anywise defective for the use for which they were sold. UNION CARBIDE CORPORA TION’S Answer to Plaintifi"s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 7 XXVI. This Defendant pleads that exemplary damages are improper and that an award of punitive damages would amount to excessive punishment in violation of due process of law and in violation of the Constitutions of the United States, the State of Texas, and any other state which has the most significant relationship to this action, and of the common law. If this Honorable Court rejects such assertion, and pleading in the alternative, if necessary, this Defendant invokes Texas Civil Practice and Remedies Code, § 41 .008(b), providing that exemplary damages awarded against a Defendant may not exceed an amount equal to two times the amount of economic damages plus an amount equal to any non- economic damages found by the jury, not to exceed $750,000.00; or $200,000.00, whichever is greater, or the applicable exemplary damage limit or exclusion in any other state or admiralty jurisdiction, which has the vested significant relationship to this action. XXVII. In accordance with T. R. C. P., 94, this Defendant pleads as affirmative defense, accord, satisfaction and release. XXIII. This Defendant further affirmatively pleads that this court does not have jurisdiction nor authority to award punitive damages for any alleged act or omission which occurred outside the state of Texas. This Defendant further affirmatively pleads that pursuant to the doctrine of BMW of North America v. 116 S. Ct. 1589 (1996) no state has the power to project its practices and policies upon any other sister state; therefore, the court sitting in the state of Texas lacks the authority or jurisdiction to award punitive damages for alleged acts or omission, whether the result of intentional misconduct or negligence, which occurs outside the state of Texas. Any such award of punitive damages would be grossly excessive, unconstitutional and in violation of the due process clause of the U.S. Constitution. UNION CARBIDE CORPORA TION ’S Answer to Plaintifi‘s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 8 WHEREORE PREMISES CONSIDERED, UNION CARBIDE CORPORATION, requests judgment of the Court as follows: l. That judgment be rendered for UNION CARBIDE CORPORATION, on the pleadings, or that this action be dismissed or of this action is not dismissed that Plaintiffs take nothing by this suit. 2. That UNION CARBIDE CORPORATION, recovers all costs together with such other and further relief to which Defendant may be justly entitled. Respectfully submitted, DEHAY & ELLISTON, L.L.P. 3500 BANK OF AMERICA PLAZA 901 Main Street Dallas 3736 (214) 2 11233721 50 By GARY D. ELLISTON State Bar No. 06584700 gelliston@dehay.com COUNSEL FOR UNION CARBIDE CORPORATION, UNION CARBIDE CORPORA TION'S Answer to Plaintifi"s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 9 CERTIFICATE 0F SERVICE I certify that a true and correct copy of the foregoing instrument has been forwarded to counsel of record for Plaintiff herein, Darren McDowell, Fears Nachawati, PLLC, 5473 Blair Road, Dallas, Texas 75231 via Lexis/Nexis, return receipt requested this day of May 2022. /s/: Misti D. Mosteller MISTI D. MOSTELLER mmostcller@dehay.com UNION CARBIDE CORPORA TION 'S Answer to Plaintzfi’s Petition and Jury Demand Subject to its Motion to Transfer Venue. Page 10 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. Screnthia Walker on behalf of Misti Mosteller Bar No. 24012778 scwalker@dehay.com Envelope ID: 64140253 Status as of 5/3/2022 2:10 PM CST Associated Case Party: ROBERTCLAYSHIELDS Name BarNumber Email TimestampSubmitted Status DARREN MCDOWELL dmcdowell@fnlawfirm.com 5/3/2022 1:45:59 PM SENT DARREN MC DOWELL dmcdowell@fnlawfirm.com 5/3/2022 1:45:59 PM SENT Associated Case Party: JOHN CRANE, INC. Name BarNumber Email TimestampSubmitted Status Laura Kugler Ikugler@grsm.com 5/3/2022 1:45:59 PM SENT Debbie Maxey dmaxey@grsm.com 5/3/2022 1:45:59 PM SENT Associated Case Party: UNION CARBIDE CORPORATION Name BarNumber Email Timestam pSubmitted Status Misti Mosteller mmosteller@dehay.com 5/3/2022 1:45:59 PM SENT