defendant wilbur ellis company llcs answer to plaintiffs complaint

Cal. Super. - 1st Dist.September 15, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P. GERHARDT ZACHER (SBN: 043184) gzacher@grsm.com THOMAS J. TOBIN (SBN: 187062) ttobin@grsm.com MATTHEW P. NUGENT (SBN: 214844) mnugent@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 101 W. Broadway, Suite 2000 San Diego, CA 92101 Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Attorneys for Defendant WILBUR-ELLIS COMPANY LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO RODOLFO AMAYA, Plaintiff, vs. SYNGENTA AG; SYNGENTA CROP PROTECTION, LLC; CHEVRON USA, INC.; WILBUR-ELLIS COMPANY, LLC; and DOES ONE through ONE HUNDRED, inclusive, Defendant. CASE NO. CGC-21-594136 DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT Complaint filed: July 28, 2021 Defendant Wilbur-Ellis Company LLC ("Wilbur-Ellis"), for itself and no others, answers the unverified Complaint for Damages ("Complaint") of Plaintiff Rodolfo Amaya ("Plaintiff'), and for each and every cause of action allegedly set forth therein, denies, and alleges as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure section 431.30(d), Wilbur-Ellis generally denies each and every material allegation of the Complaint, and the whole thereof, including those causes of action applicable to it. Wilbur-Ellis denies that Plaintiff was damaged as alleged, or at all, by reason of any act or omission on the part of Wilbur-Ellis, and further denies that Plaintiff is entitled to the relief requested or any relief whatsoever. / / / -1- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 “ ” “ ” “ tiff” ) ) ) ) ) ) ) ) ) ) ) ) ’ I ’ ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/15/2021 Clerk of the Court BY: ERNALYN BURA Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENSES AND AFFIRMATIVE DEFENSES Wilbur-Ellis specifically denies any liability to Plaintiff, and, in further response to the Complaint, Wilbur-Ellis asserts the following defenses and affirmative defenses. By including these defenses in this Answer, Wilbur-Ellis is not assuming the burden of proof on any such defense and is not conceding that Wilbur-Ellis bears any burden of proof on these defenses, except as required by law. Wilbur-Ellis reserves the right to assert additional defenses or otherwise supplement this Answer upon discovery of additional facts or evidence. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The Complaint, and each cause of action therein, fails to state facts sufficient to constitute a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE (Preemption) The claims alleged in the Complaint are, in whole or in part, preempted by federal and/or state law, including, but not limited to, the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., because they seek to impose "requirements for labeling and packaging in addition to or different from those required" under FIFRA 7 U.S.C. § 136vb. Furthermore, all of Plaintiff's claims are barred by the doctrine of conflict preemption because Plaintiffs claims "stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" under FIFRA. Grier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 873 (2002). THIRD AFFIRMATIVE DEFENSE (Compliance with FIFRA) The conduct of Wilbur-Ellis, and the characteristics and other properties of paraquat- containing products sold by Wilbur-Ellis (including the labels and warnings for paraquat- containing products) at all times complied with the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), its implementing regulations, and other mandates imposed by the United States Department of Agriculture ("USDA") and the Environmental Protection Agency -2- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 “ ” “ ” f’ i tif ’ “ ” “ ” “ ” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ("EPA") with respect to pesticides. 7 U.S.C. § 136 et seq. FOURTH AFFIRMATIVE DEFENSE (No Causation and/or Proximate Causation) Plaintiff's claims are barred because Plaintiff's alleged injuries and damages were not legally or proximately caused by any acts or omissions by Wilbur-Ellis and/or were caused, if at all and to the extent such causation can even be identified, by the conduct of Plaintiff himself, third parties over which Wilbur-Ellis had no authority or control, and/or events and conditions wholly unrelated to Wilbur-Ellis. Wilbur-Ellis cannot be held liable for loss or damage caused by such independent persons or entities, whether or not they are parties to this action. FIFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff's claims are barred by the applicable provisions of the pertinent statutes of limitations, including but not limited to, Code of Civil Procedure sections 335.1, 338(a), 339(1), 340.8. SIXTH AFFIRMATIVE DEFENSE (Good Faith) Any and all actions taken by Wilbur-Ellis with respect to any of the matters alleged in the Complaint were taken in good faith and in accordance with established practice. SEVENTH AFFIRMATIVE DEFENSE (Due Care) Plaintiff's claims are barred, in whole or in part, because Wilbur-Ellis exercised due care and took appropriate precautions against any reasonably foreseeable acts or omissions of third parties and any reasonably foreseeable consequences of such acts or omissions. EIGHTH AFFIRMATIVE DEFENSE (Compliance with Standards of Care and Regulations) Plaintiff's claims must be dismissed because Wilbur-Ellis's paraquat-containing products were properly manufactured, marketed, and distributed, were not defective in any -3- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 “ ” i f’ f’ i f’ i f’ i f’ lli ’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manner, were at all relevant times reasonably fit and suited for the purpose for which they were manufactured, delivered and supplied and were delivered with sufficient advice and warnings that were consistent with the state of the existing scientific, medical, technological, and industrial knowledge. Wilbur-Ellis complied with all applicable government standards and regulations and all applicable standards of care under all laws, regulations, industry practice, and state-of-the-art knowledge. NINTH AFFIRMATIVE DEFENSE (Compliance with Scientific and Design Standards) All products of Wilbur-Ellis were and are designed, manufactured, distributed and supplied in accordance with the stated scientific and technical knowledge available to the manufacturer or supplier at the time the products were placed on the market and in accordance with the customary designs, methods, standards and techniques of designing, manufacturing, inspecting and testing of other manufacturers or suppliers of similar products. TENTH AFFIRMATIVE DEFENSE (No Duty to Warn) Wilbur-Ellis did not have a duty to warn Plaintiff of any risks attendant to the use or application of its products beyond those requiring disclosure by the Environmental Protection Agency and/or any other federal laws or regulations, and specifically denies that it had any duty to warn of the alleged "risks" identified by Plaintiff in the Complaint or that such "risks" exist. Furthermore, Wilbur-Ellis is entitled to rely upon knowledgeable, learned and sophisticated market intermediaries, suppliers and applicators to pass on necessary warnings, if any. ELEVENTH AFFIRMATIVE DEFENSE (Independent Causes) The injuries and damages of which Plaintiff complains and for which Plaintiff seeks recovery, if any, were the result of causes independent of any purported acts, omissions or breaches of duty on the part of Wilbur-Ellis, which causes operated as intervening and superseding causes, thereby precluding any potential liability on the part of Wilbur-Ellis. -4- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 “ ” “ ” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWELFTH AFFIRMATIVE DEFENSE (Plaintiff's Negligence) Plaintiff's damages are barred, in whole or in part, by the doctrines of comparative fault and comparative negligence, to the extent Plaintiff's own acts, omissions, and/or negligence contributed to any alleged damages. THIRTEENTH AFFIRMATIVE DEFENSE (Any Liability Attributable to Plaintiff or Others) If there is any negligence or liability of any of the parties named herein, it is the sole and exclusive negligence and liability of the other entities or individuals, and not of Wilbur-Ellis. FOURTEENTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiff and other entities or individuals knew or in the exercise of ordinary care should have known, of the risks and hazards involved in the undertaking in which they engaged but nevertheless and with full knowledge, did fully and voluntarily consent to assume the risks and hazards involved in the undertaking and are therefore barred from recovery of damages herein. FIFTEENTH AFFIRMATIVE DEFENSE (Misuse of Products) To the extent Plaintiff's alleged damages were caused by a misuse, abuse, and/or alteration of any Wilbur-Ellis product, there can be no liability against Wilbur-Ellis. SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Comply with Labels and Directions) To the extent that Wilbur-Ellis was involved in the manufacture, supply, or distribution of any chemical or product which is alleged to have caused injury, Plaintiff and other parties by their manner and method of application misused or made unintended use of those chemicals and products and failed to act in accordance with the labels and directions provided by Wilbur- Ellis and/or others and Plaintiff is therefore barred from recovery of damages from Wilbur- Ellis. / / / -5- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 ’ i f’ i f’ f’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTEENTH AFFIRMATIVE DEFENSE (Contribution, Indemnity, and Offset) Wilbur-Ellis reserves all rights of contribution and/or indemnity and for the apportionment of fault against Plaintiff and any other persons or entities to the fullest extent permitted. Wilbur-Ellis expressly reserves the right, in the event that Plaintiff settles with other persons or entities, to seek a credit or offset for any portion of any Plaintiff's alleged injuries that may be attributed to such other persons or entities. Wilbur-Ellis is entitled to offset against any judgment entered against it of all amounts recovered by or benefiting Plaintiff, and resulting from any settlement, judgment or any other basis permitted by law. EIGHTEENTH AFFIRMATIVE DEFENSE (Privilege) Plaintiff's claims are barred because Wilbur-Ellis's acts or omissions are privileged pursuant to California law, including, but not limited to, under the doctrines of fair competition, ordinary business risk, and all defenses which are or may become available under the provisions of the Restatement (Second) of Torts §§ 768-773, and all comments thereto. NINETEENTH AFFIRMATIVE DEFENSE (Punitive Damages) To the extent he seeks punitive and/or exemplary damages, Plaintiff is barred from recovering punitive and/or exemplary damages because Plaintiff fails to state facts sufficient to state a claim for punitive and/or exemplary damages under Civil Code section 3294 and Wilbur-Ellis committed no acts justifying an award of punitive and/or exemplary damages. TWENTIETH AFFIRMATIVE DEFENSE (Consequential, Special, or Indirect Damages) Plaintiff is precluded from recovering any consequential, special, indirect or incidental damages, if any, from Wilbur-Ellis by the disclaimer and/or limitation of liability language on its product label(s). / / / / / / -6- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 f’ i i i f’ llis’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (Speculative Damages) Plaintiff's claims are barred in whole or in part because Plaintiff's claimed damages are too legally uncertain, remote, indirect, and/or speculative. TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff's claims are barred in whole or in part because Plaintiff failed to mitigate his alleged injuries and damages, or both. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Entitlement to Attorney's Fees) The Complaint fails to state a claim upon which attorney's fees may be awarded. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Unjust Enrichment) Plaintiff's claims against Wilbur-Ellis for damages are barred, in whole or in part, because Plaintiff would be unjustly enriched if allowed to recover any portion of the damages alleged in the Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Statutory Limitations on Recovery) Any damages recovered by Plaintiff from Wilbur-Ellis must be limited by the applicable statutory ceilings on recoverable damages. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Waiver, Laches, Unclean Hands) Plaintiff is barred from recovery based on the equitable doctrines of waiver, estoppel, laches, unclean hands, and/or in pari delicto. RESERVATION OF RIGHTS AND DEFENSES Wilbur-Ellis's pleading is based on its reasonable investigation of Plaintiff's claims to date. Wilbur-Ellis has not knowingly or intentionally waived any applicable defenses and reserves the right to assert and rely on such other applicable defenses as may become available -7- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 i f’ f’ i f’ ’ ’ i f’ llis’ i f’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or apparent during discovery proceedings. Wilbur-Ellis reserves the right to amend its Answer and/or affirmative defenses accordingly, and/or withdraw affirmative defenses that it determines to be inapplicable during the course of subsequent discovery. Additionally, Wilbur-Ellis reserves its rights regarding preemption, which it has contested. PRAYER FOR RELIEF WHEREFORE, Wilbur-Ellis prays for relief as follows: 1. That the Court enter judgment in favor of Wilbur-Ellis and against Plaintiff on all claims asserted in the Complaint; 2. That Wilbur-Ellis be awarded reasonable costs incurred in defending the Complaint, including attorney's fees; 3. Such other and further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL Wilbur-Ellis demands a trial by jury on all issues so triable. Dated: September 15, 2021 GORDON REES SCULLY MANSUICHANI, LLP By: P. Gerhardt Zacher Thomas J. Tobin Matthew P. Nugent Attorneys for Defendant WILBUR-ELLIS COMPANY LLC -8- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 ’ K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 101 W. Broadway, Suite 2000, San Diego, CA 92101, my electronic mail address is jburrell@grsm.com. On September 15, 2021, I served the foregoing document(s) as follows: DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFFS' COMPLAINT Ei ELECTRONIC TRANSMISSION: By transmitting a pdfformat version of the document(s) via electronic mail to the party(s) identified on the service list using the email address(es) indicated. ❑ MAIL: By placing the document(s) listed above in a sealed envelope withpostage thereon fully prepaid, in United States mail in the State of California addressed as set forth below. ❑ ELECTRONIC SERVICE: through the CM/ECF System which automatically generates a Notice ofElectronic Filing at the time said document is fired to the email address(es) listed in the Electronic Mail Notice List and denoted below, which constitutes service pursuant to FRCP 5(b)(2)(E). PLEASE SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the laws of the United States of America that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. Executed on September 15, 2021, at San Diego, California. I Is' I lacl uefine Zurreff Jacqueline Burrell -9- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 ’ ’  .f r  p  Ele t l // // Jacq l Burrell 1 2 3 4 5 6 7 8 9 10 11 1-4 1-4 g 12 N 1.,4 13 A -et 14 15 z 0.) 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Rodolfo Amaya v. Syngenta AG et al. San Francisco Superior Court Case No.: CGC-21-594136 Michael A. Kelly Khaldoun A. Baghdadi Sara M. Peters WALKUP, MELODIA, KELLY & SCHOENBERGER A Professional Corporation 650 California Street, 26th Floor San Francisco, California 94108-2615 T: (415) 981-7210 • F: (415) 391-6965 Email: mkelly@walkuplawoffice.com kbaghdad@walkuplawoffice.com peters@walkuplawoffice.com Leslie Lamacchia Adam Pulaski PULASKI KHERKHER LLC 2925 Richmond Avenue, Suite 1725 Houston, Texas 77098 T: (832) 690-4013 . F: (713) 664-7543 Email: llamacchia@pulaskilawfirm.com apulaski@pulaskilawfirm.com Attorneys for Plaintiff -10- DEFENDANT WILBUR-ELLIS COMPANY LLC'S ANSWER TO PLAINTIFF'S COMPLAINT ’ I ’ G o rd o n R ee s S cu ll y M a n su k h a n i, L L P 1 0 1 W . B ro a d w a y, S u it e 2 0 00 S a n D ie g o , C A 9 2 10 1 ∙ speters@walkupla f i