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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

DAVID FINNEY, an individual,, 

 Plaintiff, 

v. 

NISSAN NORTH AMERICA, INC., a 

foreign corporation; TAKATA U.S.A. 

CORPORATION d/b/a TAKATA 

CORPORATION, a foreign corporation; 

TAKATA SEAT BELTS INC., a foreign 

corporation; TAKATA RESTRAINT 

SYSTEMS INC., a foreign corporation; 

TAKATA NORTH AMERICAN INC., a 

foreign corporation; and TAKATA INC.; a 

foreign corporation, and TAKATA 

CORPORATION; a foreign corporation 

 Defendants. 

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CIVIL ACTION NUMBER: 3:06-cv-622 

ANSWER TO FIRST AMENDED COMPLAINT

Takata U.S.A. Corporation, Takata Seat Belts Inc., Takata Restraint Systems Inc., 

Takata North American Inc., and Takata Inc. (“These Defendants”) file their answer to the 

Plaintiff’s First Amended Complaint as follows: 

First Defense

 1. These Defendants have insufficient information to either admit or to deny the 

allegations set forth in Paragraph 1 and, as a result, deny the same and demand strict proof 

thereof. 

 2. These Defendants have insufficient information to either admit or to deny the 

allegations set forth in Paragraph 2 and, as a result, deny the same and demand strict proof 

thereof. 

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 3. These Defendants deny the allegations set forth in Paragraph 3 and demand strict 

proof thereof. 

 4. These Defendants deny the allegations set forth in Paragraph 4 and demand strict 

proof thereof. 

 5. These Defendants deny the allegations set forth in Paragraph 5 and demand strict 

proof thereof. 

 6. These Defendants deny the allegations set forth in Paragraph 6 and demand strict 

proof thereof. 

 7. These Defendants deny the allegations set forth in Paragraph 7 and demand strict 

proof thereof. 

 8. As phrased, these Defendants deny the allegations set forth in paragraph 8 of 

Plaintiff’s First Amended Complaint and demand strict proof thereof. 

 9. These Defendants deny the allegations set forth in Paragraph 9 and demand strict 

proof thereof. 

 10. These Defendants deny the allegations set forth in Paragraph 10 and demand strict 

proof thereof. 

 11. The allegations set forth in Paragraph 11 of Plaintiff’s First Amended Complaint 

do not require a response, but to the extent one is deemed required, these Defendants deny the 

allegations set forth herein and further state that Plaintiff’s proposed use of the collective term 

“Defendants” is inconsistent with the Federal Rules of Civil Procedure. 

 12. These Defendants deny the allegations set forth in Paragraph 12 and demand strict 

proof thereof. 

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 13. These Defendants do not dispute that venue is proper in this Court, but they deny 

the remaining allegations set forth in this Paragraph and demand strict proof thereof. 

 14. These Defendants admit there is complete diversity of citizenship, and that 

jurisdiction based on 28 U.S.C. §1332 is proper. These Defendants further agree that Plaintiff 

seeks damages in excess of $75,000, but expressly deny that they are liable for any damages to 

Plaintiff. 

 15. These Defendants deny the allegations set forth in Paragraph 15 and demand strict 

proof thereof. 

 16. These Defendants deny the allegations set forth in Paragraph 16 and demand strict 

proof thereof. 

 17. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

 18. These Defendants deny the allegations set forth in Paragraph 18 and demand strict 

proof thereof. 

 19. These Defendants deny the allegations set forth in Paragraph 19 and demand strict 

proof thereof. 

 20. These Defendants deny the allegations set forth in Paragraph 20 and demand strict 

proof thereof. 

 21. These Defendants deny the allegations set forth in Paragraph 21 and demand strict 

proof thereof. 

 22. These Defendants deny the allegations set forth in Paragraph 22 and demand strict 

proof thereof. 

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 23. These Defendants deny the allegations set forth in Paragraph 23 and demand strict 

proof thereof. 

 24. These Defendants deny the allegations set forth in Paragraph 24 and demand strict 

proof thereof. 

 25. These Defendants deny the allegations set forth in Paragraph 25 and demand strict 

proof thereof. 

 26. These Defendants deny the allegations set forth in Paragraph 26 and demand strict 

proof thereof. 

 27. These Defendants deny the allegations set forth in Paragraph 27 and demand strict 

proof thereof. 

 28. These Defendants deny the allegations set forth in Paragraph 28 and demand strict 

proof thereof. 

 29. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

 30. These Defendants deny the allegations set forth in Paragraph 30 and demand strict 

proof thereof. 

 31. These Defendants deny the allegations set forth in Paragraph 31 and demand strict 

proof thereof. 

 32. These Defendants deny the allegations set forth in Paragraph 32, and its subparts, 

and demand strict proof thereof. 

 33. These Defendants deny the allegations set forth in Paragraph 33 and demand strict 

proof thereof. 

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 34. These Defendants deny the allegations set forth in Paragraph 34, and its subparts, 

and demand strict proof thereof. 

 35. These Defendants deny the allegations set forth in Paragraph 35 and demand strict 

proof thereof. 

 36. These Defendants deny the allegations set forth in Paragraph 36, and its subparts, 

and demand strict proof thereof. 

 37. These Defendants deny the allegations set forth in Paragraph 37 and demand strict 

proof thereof. 

 38. These Defendants deny the allegations set forth in Paragraph 38 and demand strict 

proof thereof. 

39. These Defendants deny the allegations set forth in Paragraph 39 and demand strict 

proof thereof. 

 40. These Defendants deny the allegations set forth in Paragraph 40 and demand strict 

proof thereof. 

 41. These Defendants deny the allegations set forth in Paragraph 41 and demand strict 

proof thereof. 

 42. These Defendants deny the allegations set forth in Paragraph 42, and its subparts, 

and demand strict proof thereof. 

43. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

 44. These Defendants deny the allegations set forth in Paragraph 44 and demand strict 

proof thereof. 

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 45. These Defendants deny the allegations set forth in Paragraph 45 and demand strict 

proof thereof. 

 46. These Defendants deny the allegations set forth in Paragraph 46 and demand strict 

proof thereof. 

 47. These Defendants deny the allegations set forth in Paragraph 47 and demand strict 

proof thereof. 

 48. These Defendants deny the allegations set forth in Paragraph 48 and demand strict 

proof thereof. 

 49. These Defendants deny the allegations set forth in Paragraph 49 and demand strict 

proof thereof. 

 50. These Defendants deny the allegations set forth in Paragraph 50 and demand strict 

proof thereof. 

 51. These Defendants deny the allegations set forth in Paragraph 51 and demand strict 

proof thereof. 

 52. These Defendants deny the allegations set forth in Paragraph 52, and its subparts, 

and demand strict proof thereof. 

 53. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

 54. These Defendants deny the allegations set forth in Paragraph 54 and demand strict 

proof thereof. 

 55. These Defendants deny the allegations set forth in Paragraph 55 and demand strict 

proof thereof. 

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 56. These Defendants deny the allegations set forth in Paragraph 56 and demand strict 

proof thereof. 

 57. These Defendants deny the allegations set forth in Paragraph 57 and demand strict 

proof thereof. 

 58. These Defendants deny the allegations set forth in Paragraph 58 and demand strict 

proof thereof. 

 59. These Defendants deny the allegations set forth in Paragraph 59, and its subparts, 

and demand strict proof thereof. 

 60. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

 61. These Defendants deny the allegations set forth in Paragraph 61 and demand strict 

proof thereof. 

 62. These Defendants deny the allegations set forth in Paragraph 62 and demand strict 

proof thereof. 

 63. These Defendants deny the allegations set forth in Paragraph 63, and its subparts, 

and demand strict proof thereof. 

 64. These Defendants deny the allegations set forth in Paragraph 64 and demand strict 

proof thereof. 

 65. These Defendants deny the allegations set forth in Paragraph 65, and its subparts, 

and demand strict proof thereof. 

 66. These Defendants restate each allegation set forth above in response to this 

Paragraph. 

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 67. These Defendants deny the allegations set forth in Paragraph 67 and demand strict 

proof thereof. 

 68. These Defendants deny the allegations set forth in Paragraph 68 and demand strict 

proof thereof. 

 69. These Defendants deny the allegations set forth in Paragraph 69 and demand strict 

proof thereof. 

 70. These Defendants deny the allegations set forth in Paragraph 70 and demand strict 

proof thereof. 

 71. These Defendants deny the allegations set forth in Paragraph 71, and its subparts 

and demand strict proof thereof. 

 The unnumbered, WHEREFORE paragraphs in the First Amended Complaint do not 

require a response by these Defendants; however, to the extent responses are deemed required, 

these Defendants deny the material allegations of same and demand strict proof thereof. 

Second Defense

 These Defendants deny having any role in the design or manufacture of the 1992 Nissan 

Sentra described in Plaintiff’s First Amended Complaint. 

Third Defense

 These Defendants contest the injuries and damages alleged in Plaintiff’s First Amended 

Complaint and, therefore, demand strict proof of any alleged injury or damage. 

Fourth Defense

 These Defendants state that they are not indebted or liable to Plaintiff in any manner or 

amount whatsoever. 

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Fifth Defense

 These Defendants state that the sole proximate cause of the injuries and damages alleged 

in Plaintiff’s First Amended Complaint may have been the actions, non-actions, or negligence of 

a person or persons other than these Defendants for whose actions, non-actions, or negligence the 

Defendant is in no way liable. Plaintiff is not therefore entitled to recover from these Defendants 

in this action. 

Sixth Defense

 These Defendants state that the injuries and damages alleged in Plaintiff’s First Amended 

Complaint may have been caused by an intervening, superseding action for which these 

Defendants are in no way liable. Plaintiff is therefore not entitled to recover from these 

Defendants in this action. 

Seventh Defense

 These Defendants state that the Plaintiff may have been contributorily negligent. Plaintiff 

is not, therefore, entitled to recover from these Defendants in this action. 

Eighth Defense

 These Defendants state that the Plaintiff may have assumed the risk of his alleged 

injuries. Plaintiff is not, therefore, entitled to recover from the Takata in this action. 

Ninth Defense

 These Defendants aver the defense of misuse. 

Tenth Defense

These Defendants deny that they were guilty of any negligence or wantonness on the 

occasion complained of in Plaintiff’s First Amended Complaint. 

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Eleventh Defense

 These Defendants state that they are not guilty of the things and matters alleged in 

Plaintiff’s First Amended Complaint. 

Twelfth Defense

 No allegedly wrongful act or omission of these Defendants was the cause in fact or the 

proximate cause of the Plaintiff’s injuries or other damages. 

Thirteenth Defense

 These Defendants assert the defense of intervening and/or superseding causation. 

Fourteenth Defense

 To the extent Plaintiff seeks to assert a claim for breach of warranty, Plaintiff failed to 

give proper notice. 

Fifteenth Defense

These Defendants state that the damages sustained by the Plaintiff, if any, were 

proximately caused and occasioned by the acts or omissions of the Plaintiff, or of others, said 

acts and omissions being the sole cause of the Plaintiff’s alleged damages. Therefore, these 

Defendants plead the intervening acts and omissions of the Plaintiff, and of others, as a complete 

bar to the Plaintiff’s claim. 

Sixteenth Defense

 These Defendants aver that Plaintiff’s claims are pre-empted by federal law. 

Seventeenth Defense

 These Defendants plead lack of jurisdiction under 12(b)(2). 

Eighteenth Defense

 These Defendants plead lack of insufficiency of process under 12(b)(4). 

Nineteenth Defense

 These Defendants plead lack of service of process under 12(b)(5). 

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Twentieth Defense

 These Defendants please failure to state a claim upon which relief can be granted. 

Twenty-First Defense

Plaintiff’s First Amended Complaint is vague with regard to the damages Plaintiff seeks, 

and it is impossible to guess at the relief he demands. If Plaintiff intends to seek punitive 

damages in his First Amended Complaint as amended, then these Defendants assert: 

(a) These Defendants denies they are guilty of conduct for which punitive 

damages could or should be awarded and deny that Plaintiff has produced 

clear and convincing evidence sufficient to support or sustain the 

imposition of punitive damages against these Defendants. 

(b) Plaintiff cannot recover punitive damages against these Defendants 

because such an award, which is penal in nature, would violate these 

Defendants’ constitutional rights protected under the Alabama 

Constitution of 1901, as amended, and the Constitution of the United 

States unless these Defendants is afforded the same procedural safeguards 

as are criminal defendants, including, but not limited, the right to avoid 

self-incrimination, the right to forego production and disclosure of any 

incriminating documents, and the right to the requirement of a level of 

proof beyond a reasonable doubt. 

(c) Subjecting to punitive damages, or affirming an award of punitive 

damages against these Defendants in this case, would amount to and 

constitute a denial of due process as afforded by the Due Process Clause 

of the Fourteenth Amendment to the United States Constitution and by 

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the Due Process Clause of the Article I, Section 13, of the Alabama 

Constitution as separation of property without due process of law, or 

standards or criteria of due process of law, based upon the following 

grounds and circumstances, separately and severally assigned: 

(i) Any award of punitive damages against these Defendants under the 

evidence in this case would necessarily be based upon an 

evidentiary standard less than a standard of proof of beyond 

reasonable doubt; 

(ii) There is a lack of reasonable standards necessary to instruct the 

jury on the propriety and amount of any punitive damages award, 

and such an award is subject to no predetermined limits; 

(iii) Any punitive damages award would not be subject to post-trial or 

appellate review on the basis of suitable and sufficient objective 

standards and criteria; 

(iv) The power and authority imposed upon the jury under Alabama 

law as to the amount of punitive damages is so relatively 

unfettered that there is lacking any reasonable or logical standard, 

uniform criteria, or guidance in the assessment of the amount of 

the award of punitive damages; 

(v) Under Alabama law and procedure, there is no objective, logical, 

or rational relationship between the award, or the amount of the 

award, of punitive damages and these Defendants’ alleged 

wrongful or culpable conduct; 

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(vi) Under Alabama law and procedure, there is no objective, logical, 

or rational relationship between the award, or the amount of the 

award, of punitive damages and the interests or goals of the State 

of Alabama referable to the imposition or allowance of punitive 

damages; 

(vii) Under Alabama law and procedure, there is no objective or rational 

criteria for the amount of the award of punitive damages as relates 

or compares to the assessment of compensatory damages, or the 

amount of compensatory damages; 

(viii) In the event that a single verdict be mandated against all 

defendants herein for an award of punitive damages in this case, 

such a single verdict would be imposed regardless of the degree 

of culpability of a particular defendant, and such a nonapportionment rule could result in a joint and several verdict 

against all defendants whereby punitive damages could be 

assessed against one defendant based in part upon culpability of 

another defendant, and such a joint verdict the single amount 

could be enforced against a defendant for any portion of that 

judgment regardless of the defendant’s culpability or relative 

culpability; 

(ix) Should the Court require the award of punitive damages in a 

single, joint, and several verdict of one amount, an adoption of 

this non-apportionment rule would be contrary to the objective of 

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punishing specific misconduct and would be contrary to the 

objective of assessing punitive damages according to culpability 

of conduct; 

(x) Where a joint and several punitive damages award is mandated to 

be in a single amount against each defendant, such a rule 

additionally violates a defendant’s right to trial by jury as the jury 

would be prohibited from apportioning damages against these 

defendants according to the degree of culpability of the conduct 

of these Defendants; 

(xi) An award of punitive damages should not be permitted to be 

assessed against defendant for unauthorized acts of an agent or 

agents without any additional requirement of knowledge or fault 

on the part of the Defendant; 

(xii) An award of punitive damages should not be permitted to be 

assessed against these Defendants vicariously as a principle 

without any further proof of independent, wrongful conduct, or 

ratification by these Defendants; 

(xiii) Alabama procedures, pursuant to which amounts of punitive 

damages are awarded, permit the imposition of different penalties 

for the same or similar acts; 

(xiv) Under Alabama law and procedures governing the award in 

assessment of punitive damages there is no objective, logical, or 

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reasonable standard or criteria which governs the award or the 

amount of the award of punitive damages; 

(xv) The procedures pursuant to which punitive damages are awarded 

fail to provide a reasonable limit on the amount of the award 

against these Defendants; 

(xvi) The procedures pursuant to which punitive damages are awarded 

are unconstitutionally vague; 

(xvii) The procedures pursuant to which punitive damages are awarded 

fail to provide a clear post-trial or appellate standard of review on 

an award of punitive damages; 

(xviii)The procedures pursuant to which punitive damages are awarded 

may permit admission of evidence relative to punitive damages in 

the same proceedings during which liability and compensatory 

damages are determined; and 

(xix) An award of punitive damages would constitute an arbitrary and 

capricious taking of property of these Defendants without due 

process of law. 

(d) Plaintiff is not entitled to punitive damages from these Defendants 

pursuant to the facts as alleged in Plaintiff’s First Amended Complaint. 

(e) The claim of plaintiff for punitive damages against these Defendants is 

barred by the Fourteenth Amendment to the United States Constitution 

and by the Alabama Constitution. 

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(f) Imposition of punitive damages in this case against these Defendants 

would contravene the commerce clause of the United States Constitution 

in that such an award would constitute, if imposed, an undue and 

unreasonable burden on interstate commerce. 

(g) To award punitive damages against these Defendants in this case would 

have a chilling affect upon these Defendants’ right to open access to the 

courts of this State in violation of the United States Constitution and the 

Alabama Constitution, separately and severally. 

(h) Imposition of punitive damages in this case would violate the Excessive 

Fines Clause of the Eighth Amendment to the United States Constitution 

and Article I, Section 15, of the Alabama Constitution. 

(i) To award punitive damages against these Defendants in this case would 

violate the Contracts Clause of Article I, Section 10, of the United States 

Constitution as an award of punitive damages would impair contractual 

obligations. 

(j) Based upon Alabama procedures relative punitive damages, which provide 

no objective, logical, or reasonable standards or criteria to govern the 

award or the amount of the award of punitive damages, these Defendants 

are denied equal protection of the laws as guaranteed by the Fourteenth 

Amendment of the United States Constitution and Article I, §§ 1, 6, and 

22, of the Alabama Constitution, separately and severally. 

(k) Plaintiff’s claim for punitive damages violates the rights of these 

Defendants to due process of law and equal protection of the law as 

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guaranteed by the United States Constitution and the Alabama 

Constitution in that the procedure for post-trial review of punitive 

damages as set forth in Hammond v. City of Gadsden and Green Oil 

Company v. Hornsby is unconstitutionally vague and inadequate in the 

following respects: 

(i) The Hammond and Green Oil procedure provides no clearly 

defined standard for courts to apply in reviewing punitive 

damages; 

(ii) The Hammond and Green Oil procedure provides inadequate 

review as to the need to deter, whether deterrence has been 

accomplished, and whether punishment is appropriate for these 

Defendants; 

(iii) The Hammond and Green Oil procedure provides inadequate 

review and a vague standard regarding the relationship of the 

punitive damages award to the harm; 

(iv) The Hammond and Green Oil procedure does not address, nor does 

it cure, the lack of guidelines to be given to the jury in the 

assessment of punitive damages; 

(v) The Hammond and Green Oil procedure is inadequate in that the 

trial court “may” take certain factors into account and these 

procedures lack predictable and objective standards of review, 

allow for inconsistent application of the factors, and allow for 

unpredictable and inconsistent results; and 

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(vi) The Hammond and Green Oil procedure fails to provide definite 

and meaningful constraints on the jury’s discretion in awarding 

punitive damages. 

(l) Plaintiff’s First Amended Complaint seeks to make these Defendants 

liable for punitive damages. these Defendants adopt by reference the 

defenses, criteria, limitations, and standards mandated by the Supreme 

Court of the United States in BMW of North America, Inc. v. Gore, 517 

U.S. 559, 116 S. Ct. 1589 (1996), Cooper Industries, Inc. v. Leatherman 

Tool Group, Inc., 532 U.S. 424, 121 S. Ct. 1678 (2001), and State Farm 

Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 

S. Ct. 1513, 155 L. Ed. 2d 585 (2003). 

(m) The demand for punitive damages in the instant case is subject to those 

limitations established by the Alabama Legislature and set forth in 

Section 6-11-21, Code of Alabama. 

(n) If multiple punitive damages awards were assessed against these 

Defendants in different jurisdictions, or in the same jurisdiction, it would 

violate the Constitutions of the United States and of the State of Alabama, 

violating these Defendants’ rights to due process and to a jury trial and 

violating these Defendants’ right against double jeopardy. 

(o) If punitive damages were assessed against these Defendants for conduct or 

events allegedly occurring in states other than in the forum state, these 

Defendants would be denied due process of law, the right to trial by jury, 

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and the right against double jeopardy under the Constitutions of the 

United States and the State of Alabama. 

(p) The imposition of punitive damages sought by Plaintiff violates these 

Defendant’s right to due process and equal protection of the laws under 

the Fourteenth Amendment of the United States Constitution and the 

prohibition against excessive fines under the Eighth Amendment to the 

United States Constitution in that: 

(i) Alabama law and the Alabama punitive damages scheme, both 

facially and as applied in this case, provide no constitutionally 

adequate or meaningful standards to guide a jury or the court in 

determining whether, and if so, in what amount, to award punitive 

damages; there is no sufficiently clear definition of the conduct or 

mental state that makes punitive damages permissible, and no 

sufficient clear standard for determining the appropriate size of 

such an award. Alabama law and the Alabama punitive damages 

scheme leave the determination of whether to award and, if so, the 

amount of punitive damages to the arbitrary discretion of the finder 

of fact without providing adequate or meaningful guidelines for, or 

limits to, the exercise of that discretion. 

(ii) These Defendants had no notice or means of ascertaining whether, 

or if so in what amount, they might be subject to a penalty for the 

conduct alleged by Plaintiff in this case. That lack of notice was 

compounded by the absence of any adequate or meaningful 

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standards as to the kind of conduct that might subject these 

Defendants to punitive damages or as to the potential amount of 

such an award. 

(iii) Under Alabama and the Alabama punitive damages scheme, the 

jury is not instructed on the limits of punitive damages imposed by 

the purposes for which such damages are assessed. 

(iv) Under Alabama law and the Alabama punitive damages scheme, 

the jury is not expressly prohibited from awarding punitive 

damages, in whole or in part, on the basis of unduly discriminatory 

characteristics, including the corporate status of the defendant. 

(v) No provision of Alabama law or the Alabama punitive damages 

scheme provides adequate procedural safeguards consistent with 

the criteria set forth in State Farm Mutual Automobile Insurance v. 

Campbell, BMW of North America, Inc. v. Gore, Pacific Mutual 

Life Insurance Company v. Haslip, and Matthews v. Eldridge, exist 

for the imposition of a punitive damages award. 

(vi) Alabama law and the Alabama punitive damages scheme do not 

provide for adequate post-trial review of punitive damages awards 

or the amount thereof and do not provide objective standards for 

such review. 

(vii) Under Alabama law and the Alabama punitive damages scheme, 

there is no limit to the number of times these Defendants could be 

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held accountable for punitive damages based on the same alleged 

conduct as that alleged in this case. 

(q) Another effect of Alabama’s punitive damages scheme is to impose 

punitive damages in an arbitrary, capricious, and discriminatory manner. 

The lack of adequate guidelines or review inevitably leads to variations in 

result without any rational basis for differentiation, and without serving 

any legitimate governmental purpose or interest. As a result, the 

constitutional mandates for equal protection of the laws as provided 

under the Fourteenth Amendment to the United States Constitution are 

violated. 

(r) Insofar as the punitive damages awards sought by Plaintiff seeks to 

impose punitive damages under Alabama law for conduct in other states, 

the award violates: 

(i) these Defendants’ rights to due process and due course of law 

under the Fourteenth Amendment to the United States Constitution 

and the guarantees of due process of law provided under the 

Alabama Constitution of 1901; 

(ii) The dormant or negative commerce clause derived from Article I, 

Section 8, Clause 3, of the United States Constitution; 

(iii) The full faith and credit clause of Article IV, Section 1, of the 

United States Constitution; 

(iv) The requirement of the United States Constitution that a state 

respect the autonomy of other states within their spheres; and 

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(v) The prohibition against excessive fines in the United States 

Constitution. 

Twenty-Second Defense

These Defendants have not had an opportunity to conduct a sufficient investigation or to 

engage in adequate discovery touching on the circumstances of the Plaintiff’s allegations. these 

Defendants intend to act as best they can to inform themselves as to the pertinent facts and 

prevailing circumstances surrounding any reported injury or damage to the Plaintiff as alleged in 

the First Amended Complaint, and hereby give notice of their intent to assert any further 

affirmative defenses that their information-gathering process may indicate is supported by fact 

and law, including but not limited to, a defense that the action is barred in whole or in part by 

any applicable statute, contract, release, covenant, the doctrine of laches, the Plaintiff’s 

assumption of risk, the negligence of the operator of the product at issue in failing to keep a 

reasonable and proper lookout, and in otherwise failing to exercise due care. These Defendants 

thus reserve the right to amend this Answer to assert any such defenses. 

Twenty-Third Defense

 These Defendants reserve the right to amend their answer. 

 

s/ Charles A. Stewart III 

Charles A. Stewart III (ASB-4955-a56c) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

Attorneys for “These Defendants” 

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CERTIFICATE OF SERVICE

I hereby certify that on December 18, 2006, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification of such filing 

to the following: 

Joel Lee DiLorenzo 

Jackson and Tucker, PC 

Black Diamond Building 

2229 First Avenue North 

Birmingham, AL 35203 

Email: joel@ksjpc.com

Joseph Luther Tucker 

Jackson and Tucker, P.C. 

2229 1st Avenue North 

Birmingham, AL 35203 

Email: josh@jacksonandtucker.com

Kenneth S Jackson 

Jackson and Tucker, P.C. 

Black Diamond Building 

2229 1st Avenue North 

Birmingham, AL 35203 

Email: steve@jacksonandtucker.com

Walter B. Calton 

Calton & Rutland LLC 

PO Box 696 

Eufaula, AL 36027-0696 

Email: wcalton@bellsouth.net

Robert C Khayat, Jr. 

King & Spalding LLP 

1180 Peachtree St, NE 

Atlanta, AL 30309 

Email: rkhayat@kslaw.com

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non-CM/ECF participants: 

None. 

s/ Charles A. Stewart III 

Charles A. Stewart III (ASB-4955-a56c) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

E-mail: cstewart@bradleyarant.com 

1/1481053.1

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