wa/

CAUSE NO. D-0157746
DARLENE COKER AND IN THE DISTRICT COURT OF
SPOUSE, ROY COKER

vs. 
JErww 
BILL THAMES PHARMACY, 
CORRIGAN ENTERPRISES, INC.
f/k/a Johnson?Johnson Baby
f/k/a S.W.S. Pharmacy, Inc.;
FERTITTAS FINER FOODS, 
GIANT FOOD DISCOUNT CITY,
INC., HENKE PILLOT, INC.
HSTN., INC. f/k/a Baby
Products: JOHNSON JOHNSON
LOVOI AND
SONS PHARMACIES, INC.:
MCNEIL PPC, INC. Products;
THE KROGER COMPANY

?97 2 5E8132
JEFFERSON COUNTY, TEXAS



136TH JUDICIAL DISTRICT

ORIGJNAL ANSWER
TO THE HONORABLE JUDGE 0F SAID COURT:

Comes now the entity sued under the name PPC, INC.
f/k/a Johnson-Johnson Baby Products, one of the defendants in the
above entitled and numbered cause, and in response to Plaintiffs'
Original Petition, makes and files this, its Original Answer, and
as grounds therefor would respectfully show the Court the
following:

1.

This defendant objects and specially excepts to paragraph 3 of
Plaintiffs' Original Petition wherein plaintiffs allege the
following:

"Plaintiffs sue for the personal injury of Darlene Coker

inflicted. by the negligent, gross negligent, fraud,

deceit, misrepresentations and defective products of the
defendants."

ORIGINAL ANSWER Page 1


This defendant would show that the allegations of negligence, gross
negligence, fraud, deceit, misrepresentations and defective
products are all vague, general and indefinite, and plaintiffs have
failed to allege any act or omission complained of that would give
rise to a claim for negligence, or gross negligence, or any act
that would constitute fraud, deceit or any alleged
misrepresentation or the particular type of defect being complained
of, and therefore this defendant does not have fair notice of the
allegations being asserted against him and cannot properly prepare
its defenses. Defendant moves the Court to strike the allegation
from plaintiffs' pleading and of this exception, prays judgment of
the Court.
2 .

This defendant objects and specially excepts to paragraph 4 of
Plaintiffs' Original Petition wherein plaintiffs allege the
following:

"Defendants negligently and intentionally caused Darlene

Coker to be fatally exposed to talc, proximately causing

her to contract peritoneal mesothelioma."

This defendant would show that the allegation that this defendant
"negligently and intentionally caused Darlene Coker to be fatally
exposed to talc," is vague, general and indefinite, and plaintiffs
have failed to specify any act or omission complained of that would
give rise to a claim of negligence, or to specify in any manner how
this defendant is alleged to have "intentionally" caused plaintiff

to be fatally exposed to talc, and therefore this defendant does

ORIGINAL ANSWER - Page 2


not have fair notice of the allegations being asserted against it
and cannot properly prepare its defenses. Defendant moves the
Court to strike the allegation from plaintiffs' pleading and of
this exception, prays judgment of the Court.

3.

This defendant objects and specially excepts to paragraph 5 of
Plaintiffs' Original Petition wherein plaintiffs allege the
following:

"Defendants made, sold, or specified, talc products which

were defective and unreasonably dangerous as designed,

manufactured and marketed. These products, used as

intended and foreseen, necessarily released poisonous

talc, which was a producing cause of the mesothelioma."
This defendant would show that plaintiffs have failed to specify
which product it allegedly made, sold, or specified designed,
manufactured [or] marketed? ?which.'was vallegedly' defective and
unreasonably dangerous, and therefore this defendant does not have
fair notice of the allegations being asserted against it and cannot
properly prepare its defenses. Defendant moves the Court to strike
the allegation from plaintiffs' pleading and of this exception,
prays judgment of the Court.

4 .

This defendant objects and specially excepts to paragraph 6 of
Plaintiffs' Original Petition wherein the plaintiffs allege the
following:

"Defendants had an actual, subjective awareness of the

capacity of airborne talc components in susceptible

individuals, and defendants knew they could not with
confidence predict precisely who would become sickened,

ORIGINAL ANSWER - Page 3


yet they intentionally failed to protect, warn, instruct

or otherwise prevent the inevitable exposures and totally

preventable disease, whidh conduct evidenced such an

entire want of care as to be grossly negligent and

battery."
Defendant objects to paragraph 6 for the reason that plaintiffs
'have failed in: specify which product this defendant allegedly
"made, sold, or specified, designed, manufactured [or]
marketed? which allegedly had the capacity to "sicken" susceptible
individuals, and of which defendant was subjectively aware, or
which product defendant allegedly manufactured from.which defendant
"intentionally failed 1x3 protect, ?warn, instruct. or? otherwise
prevent the inevitable exposures and totally preventable disease,?
and therefore defendant does not have fair notice of the
allegations being asserted against it and cannot properly prepare
its defenses. Defendant moves the Court to strike the allegation
from plaintiffs' pleading and of this exception, prays judgment of
the Court.

5.

This defendant objects and specially excepts to that portion
of paragraph 6 wherein plaintiffs allege "battery," for the reason
that the allegation is vague, general and indefinite and plaintiffs
have failed to specify any acts which would constitute legal
battery, and therefore defendant does not have fair notice of the

allegations being asserted against it and cannot properly prepare

its defenses. Defendant moves the Court to strike the allegation

ORIGINAL ANSWER Page 4


from plaintiffs' pleading and of this exception, prays judgment of
the Court.
6.

This defendant objects and specially excepts to that portion
of paragraph 7-d wherein plaintiffs allege damages for "loss of
inheritance," for the reason that inheritance damages are not
recoverable absent a muongful death claim, which has not been
asserted in this cause of action. iPlaintiffs are therefore
attempting to place a greater burden on this defendant than is
allowed or permitted by law. Defendant moves the Court to strike
the allegation from plaintiffs' pleading and of this exception,
prays judgment of the Court.

7.

This defendant objects and specially excepts to paragraph 7wf
of Plaintiffs' Original Petition wherein plaintiffs allege "hedonic
damages for lifetime lost," for the reason that there is no such
compensable item of damages permitted by common law or statute in
the state of Texas, and plaintiffs are therefore attempting to
place a :greater' burden. on this defendant ?than. is allowed. or
permitted by law. Defendant moves the Court to strike the
allegation from plaintiffs' pleading and of this exception, prays
judgment of the Court.

8.
This defendant objects and specially excepts to that portion

of paragraph 7-h wherein plaintiffs seek damages for "prejudgment

ORIGINAL ANSWER Page 5

G: 0212 1 . ANS

interest from the first date of injurious exposure," for the reason
that there is no statutory or common law basis for recovery of
prejudgment interest from "the date of injurious exposure," the
same being specified, if an: all, by statute. Plaintiffs are
attempting to place a greater burden on this defendant than is
allowed or permitted by law and defendant moves the Court to strike
the allegation from plaintiffs' pleading and of this exception,
prays judgment of the Court.
9.

This defendant objects and specially excepts to that portion
of paragraph 1 wherein plaintiffs claim damages ?in excess of the
minimum jurisdictional limits of the Court," for the reason that
the allegation is vague, general and indefinite and open-ended, and
plaintiffs have failed to specify the total amount of damages
sought from this defendant and therefore defendant does not have
fair notice of all of the allegations being asserted against it and
cannot properly prepare its defenses. Defendant moves the Court to
require plaintiffs to amend and allege a total amount of damages
being claimed in this lawsuit and of this exception, prays judgment
of the Court.

10.

This defendant denies that he is liable to plaintiff for any
amount of money whatsoever, and says that in any event, the damages
which plaintiff could seek herein are limited by law pursuant to

?ll.01-ll.04 of Art. 4590i, TEL C?h Sewn AML

ORIGINAL ANSWER - Page 6

G: 02121\ PLEADI . ANS



This defendant would show that plaintiffs' cause of action is
barred by the statute of limitations.

TO THE COURT ONLY
1.2 .

Defendant denies that it is liable to p?aintiffs for any
amount of damages or money whatsoever, but states that inasmuch as
plaintiffs have alleged exemplary and punitive damages, defendant
hereby invokes all of the provisions of Chapter 41, PWKL
including but not limited to ??41.007 and 41.008.

13.

With respect to the allegations asserted by plaintiffs against
this defendant and others, defendant hereby invokes all of the
rights, remedies, elections and provisions of Chapters 32 and 33 of
the TEL REL Cam, including but not limited to ??33.013
- 33.017.

WHEREFORE, PREMISES CONSIDERED, defendant prays that its
special exceptions be sustained, and that upon final trial and
hearing hereof plaintiffs take nothing from it, but that it go
hence without day and recover its costs in this behalf expended,
and for such other and further relief, both at law and in equity,

to which defendant may show itself to be justly entitled.

ORIGINAL ANSWER - Page 7


Respectfully submitted,

FOWLER, WILES KEITH, L.L.P.

By: W?m Q?mf/Jt?c

William Dixon Wiles
State Bar No. 21467800

1900 Cityplace Center

2711 North Haskell

Dallas, Texas 75204-2944
(214) 841~3000 Telephone
(214) 841-3099 - Telecopier

Attorney for Defendant
McNeil PCC, Inc.

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above

and foregoing answer was forwarded to plaintiffs' counsel this 17th
day of October, 1997.



William Dixon Wiles

ORIGINAL ANSWER Page 8