Petition for Writ of Certiorari — Dipankar Chandra, Petitioner v. Leonardo DRS, Inc., et al.

1

NO.

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Supreme Court of tlje

©nttrb States

FILEDAUG 2 4 2021

OFFICE OF THE CLERK

I SUPREME COURT l iq

p,fi

Dipankar Chandra

v.

Leonardo DRS, Inc., et al.

On Petition for Writ of Certiorari

to the Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

Dipankar Chandra

Pro se (with limited assistance of counsel)

P.O. Box 452571

Garland, Texas 75045

Telephone: 214-448-1172

dchandradl@gmail.com

PETITIONER

QUESTION PRESENTED FOR REVIEW

Can the judgment of the court below, which granted Respondents’ Motion for

Summary Judgment regarding Petitioner’s claims for negligence, gross negligence,

premises liability, and products liability be reconciled with the motion for summary

judgment standards as outlined in Federal Rules of Civil Procedure 56 and Texas

Rules of Civil Procedure 166a?

■i

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PARTIES TO THE PROCEEDING

Petitioner1.

Dipankar Chandra

Respondents1.

Leonardo DRS, Inc. and

2.

DRS Network & Imaging Services, LLC

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

1

PARTIES TO THE PROCEEDING

2

TABLE OF CONTENTS

3

TABLE OF AUTHORITIES

5

PETITION FOR A WRIT OF CERTIORARI

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OPINIONS BELOW

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STATEMENT OF JURISDICTION

7

STATUTORY PROVISIONS INVOLVED

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STATEMENT OF THE CASE

7

REASONS FOR GRANTING THE PETITION

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1. Review Should Be Granted Because the Judgment Of The Courts Below Is In

Conflict With The Definition of the Federal and Texas Motion for Summary

Judgment Standard

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A. TWCA Claim.............................

B. Statute of Limitations..............

C. Causation of Injuries/Damages

CONCLUSION

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APPENDIX

A.l. Chandra v. Leonardo DRS, Inc., No. 21-0103 (Texas Supreme Court.

April 9, 2020) Order Denying Petition for Review

A.2. Chandra v. Leonardo DRS, Inc., No. 21-0103 (Texas Supreme Court,

May 28, 2020) Order denying Motion for Rehearing

A.3. Chandra v. Leonardo DRS, Inc. and DRS Network & Imaging Services,

LLC, No. 06-20'00056-CV (Court of Appeals, Sixth Appellate District, State

of Texas, November 24, 2020) Judgment affirming trial court’s judgment.

4

A.4. Chandra v. Leonardo DRS, Inc. and DRS Network & Imaging Services,

LLC, 06-20-00056-CV (Court of Appeals, Sixth Appellate District of Texas at

Texarkana, November 24, 2020) Memorandum Opinion Affirming Trial Court

Summary Judgment.

A.5. Chandra v. Leonardo DRS, Inc. and DRS Network & Imaging Services,

LLC, No. 06-20-00056-CV (Court of Appeals, Sixth Appellate District, State

of Texas, December 15, 2020) Denial of Motion for Rehearing.

A.6. Chandra v. Leonardo DRS, Inc. and DRS Network & Imaging Services,

LLC, DC-19-03484 (116th District Court, Dallas County, June 17, 2020) Order

and Final Judgment.

A.7. Photograph of Zero Leak Reactor

A.8. Photograph of Zero Leak Reactor Upright

A.9. Flimsy Leaking Tellurium Saturated Epi-Reactors, Upright Version

A. 10. Flimsy Tellurium Epitaxial Reactors

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TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc.

477 U.S. 242 (1986).........

10

Castleberry v. Goolsby Bldg. Corp.

617 S.W.2d 665, 666 (Tex. 1981)

11

David-Lynch, Inc. v, Moreno,

667 F.3d 539, 549 (5th Cir. 2012)

10

Honore v. Douglas,

833 F.2d 565 (5th Cir. 1987)

10

Kennedy v. Silas Mason Co.,

334 U.S. 249, 256 -257 (1948)

10

Leonard v. Dixie Well Service & Supply, Inc.

828 F.2d 291, 294 (5th Cir. 1987)........

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Rules

28 U.S.C. § 1254....................................

28 U.S.C. § 1257....................................

28 U.S.C. § 1331....................................

Fed. Rule Civ. Proc. § 56......................

Tex. Civ. Prac. & Rem. Code §16.003

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7

7

7, 9, 10, 20

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6

3n tlje

Supreme Court of tfjr ®nttcb States?

Dipankar Chandra

v.

Leonardo DRS, Inc. Et Al.

On Petition for Writ of Certiorari

to the Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to review the judgment

of the Supreme Court for the State of Texas in this case.

OPINIONS BELOW

The Supreme Court of Texas in Dipankar Chandra v. Leonardo DRS, Inc. and

DRS Network & Imaging Services, LLC denied Petitioner’s Petition for Review,

which is reproduced in the appendix to this petition as A.l. The Texas Supreme

Court also denied Petitioner’s Motion for Rehearing, which is reproduced in

appendix to this petition as A.2. The

Court of Appeals Sixth Appellate District of Texas affirmed the judgment of the

116th District Court of Dallas County, Texas (Tx. Ct. No. DC-19‘03484), which is

reproduced in the appendix to this petition as A.3.

Petitioner’s Motion for

Rehearing was also denied by the Sixth Appellate Court of Appeals for the State of

Texas, which is reproduced in the appendix to this petition as A.5 and A.4. The

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final Order in the 116th Judicial District Court of Dallas County, Texas, which

granted Respondent’s Motion for Summary Judgment, is reproduced in the

appendix to this petition as A.6.

STATEMENT OF JURISDICTION

The entry of the final judgment in the Supreme Court of Texas, denying Petitioner’s

Motion for Rehearing was on May 28, 2021. This Petition for a Writ of Certiorari

has been filed pursuant to Rule 13, within 90 days after entry of the judgment of

the Texas Supreme Court.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1254, 1257,

and 1331.

STATUTORY PROVISIONS INVOLVED

This case involves the proper interpretation of toxic tort injuries and the

summary judgment standard from Federal Rules of Civil Procedure 56.

STATEMENT OF THE CASE

Petitioner worked for Respondents from September 1998 to November 2009.

Petitioner was diagnosed with colon cancer in 2006. Petitioner work location and

entity was not listed on Respondents’ attached worker’s compensation insurance

policies and therefore not covered by worker’s compensation coverage. Petitioner

proposed a new design for the reactors to eliminate the leak in the reactors to his

management.

It is well-established that mercury telluride and cadmium

telluride have a causal relationship to many health conditions including colon

cancer and prostate cancer.

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Slow Destruction of the Immune system by continuous exposure to extremely

small quantities of Cadmium is a separate, independent, extremely well known and

well established result from medical research, totally separate from onset of lower

body cancers. And the incubation period is even longer - between 15 and 20 years.

In other words, Prostate Cancer itself becomes diagnosable after 15 years, and then

does not manifest itself as another reincarnation as dangerously degraded

immunity. The Immunity was degrading itself steadily and slowly and dangerously

over 15 + years from a direct impact of Cadmium, separately and independently

from Prostate Cancer (incubation period 15 years). That reaction is why Cadmium

is called both as an ultra toxin and ultra-carcinogen, not just an ultra toxin by itself

or ultra carcinogen by itself. Both can obviously happen simultaneously,

independent of each other.

Respondent made no changes to the environment despite knowing that three

of its employees developed cancer, knowing that a leak was occurring, reviewing a

design from Petitioner for a reactor that would not leak, having knowledge of the

connection between mercury telluride/cadmium telluride and cancer, and being

asked on multiple occasions by Petitioner to redesign the reactor or otherwise

implement other safety measures to prevent mercury telluride and cadmium

telluride exposures. Copies of the leak reactors are attached as Appendix A.7-A.10.

After surviving his 2006 colon cancer with permanent medical consequences, which

he still deals with to this day, Petitioner was diagnosed with prostate cancer in

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2018. All three technicians who developed cancer along with Petitioner, have now

passed.

The district court granted summary judgment for Respondents. Petitioners

filed a motion for reconsideration of the district court's decision. The district court

denied Petitioner’s motion for reconsideration.

Petitioners timely filed their notice

of appeal with the Sixth Circuit Court of Appeals, which affirmed the decision of the

district

court.

Thereafter, Petitioners filed a Motion for Rehearing, which was denied by the Sixth

Appellate District, Court of Appeals.

Petitioner then appealed to the Texas

Supreme Court. The Texas Supreme Court denied Petitioner’s Petition for Review,

and also denied the Motion for Rehearing. Petitioner then filed this Petition for a

Writ of Certiorari.

REASONS WHY REVIEW SHOULD BE GRANTED

1.

Review Should Be Granted Because The Judgment Of The Courts Below Is In

Conflict With The Definition of the Federal and Texas Motion for Summary

Judgment Standard.

Summary judgment is appropriate where, considering all the allegations in

the pleadings, depositions, admissions, answers to interrogatories, and affidavits,

and drawing inferences in the light most favorable to the non-moving party, there is

no genuine issue of material fact and the moving party is entitled to summary

judgment as a matter of law. Fed. R. Civ. P. 56 (a). The 2007 Advisory Committee

Notes state-

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“It is established that although there is no discretion to enter summary

judgment when there is a genuine issue as to any material fact, there

is discretion to deny summary judgment when it appears that there is

no genuine issue as to any material fact. Kennedy v. Silas Mason Co.,

334 U.S. 249, 256 -257 (1948).”

Fed. Rule Civ. Proc. § 56 - Advisory Notes.

By the language of this case as well as its legislative use as support of an

Advisory Committee Note under Rule 56 (a), it is clear that the legislative intent

was a bias towards denying summary judgment.

Based on the language of the

Kennedy case in the Advisory Committee Note, courts should immediately deny

summary judgment if there is even one genuine issue of material fact. At the same

time, courts also have discretion to deny summary judgment even if there is no

genuine issue of material fact.

A dispute is genuine if the evidence is such that a reasonable juror could find

for the non-moving party. E.g., David-Lynch, Inc. v, Moreno, 667 F.3d 539, 549 (5th

Cir. 2012). Finally, it is not the function of the trial judge “to weigh evidence, assess

credibility, or determine the most reasonable inference to be drawn from the

evidence. Those are functions of the trier of fact.” Honore v. Douglas, 833 F.2d 565,

567 (5th Cir. 1987) {citing Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986);

Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987)(“The

Supreme Court has not, however, approved summary judgments that rest on

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credibility determinations...[and] the Court reminds district judges not to invade

the role of the jury.”).

A. TWCA Claim

Petitioner’s injury was directly as a result of Respondents’ acts/omissions

during Petitioner’s employment with Respondents.

Respondent wholly failed to

defend their position against Petitioner’s TWCA claim.

Moreover, Respondents’

defense of limitations failed. Finally, Petitioner established causality directly from

Respondents’ acts/omissions.

Here, Petitioner’s TWCA case should have survived summary judgment as it

does not exempt employers from common law liability for intentional injuries.

Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981). The TWCA,

however, does not bar an employee from suing his employer upon a claim of

intentional tort. Respondents’ argument that the TWCA does not apply fails for two

reasons- (l) Respondents acts/omissions constitutes an intentional injury because

the employer knew it would cause certain injury; and (2) Petitioner did not work at

a worksite or entity of Respondents’ that was covered by the TWCA.

DRS STS in Texas working without TWCA, forced Petitioner to keep on

working with HgCdTe growth with varying Cd, with a significant fraction with very

high Cd levels, to grow SWIR (Short Wavelength Infra-Red) devices which have

combined defense applications and a host of other applications, including in

communication and data transfer. Cadmium release rates from the melt increased

by greater than 300 % during these growths of HgCdTe thin films from melts

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containing almost an order of magnitude higher Cadmium levels due to dissociative

sublimation and leaking Teflon O-rings. Appendix A.7*A.10.

The leaking reactors, pictured in Appendix A.7-A.10, also show separately the

steel high pressure chamber encapsulating the Zero Leak Reactor. The Zero Leak

Reactor has no leaks and can contain up to 100 + atmospheres of pressure. As

pointed out, also pictured separately is the flimsy Tellurium saturated reactors

placed on the two sides of the controllers. Clearly visible through these reactors,

with one fragile glass cylinder between the operator and the ultra-toxic and ultracarcinogenic vapors, are hints of the steel rods and tubes going through the

degrading O-rings. Appendix A.7-A-10.

Based on his expertise, Petitioner has compiled the release rates with new Orings on three separate days, which widely differ from each other. The information

is provided as followsRELEASE RATES WITH NEW O-RINGS

Day 1

Dav 2

Dav 3

11.2 gms

10.6 gms

11.2 gms

10.4 gms

11.7 gms

77.4 gms

81.2 gms

74.3 gms

Release of Mercury within 60 72.3 gms

74.3 gms

84.7 gms

Release of Cadmium within the 9.7 gms

first 60 minutes

Release of Cadmium within 60

minutes and 120 minutes

Release of Mercury within the

first 60 minutes

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minutes and 120 minutes

3.1 gms

3.7 gms

60 3.7 gms

2.8 gms

3.4 gms

Release of Tellurium within the 73.2 gms

68.4 gms

78.6 gms

74.7 gms

81.2 gms

Release of Arsenic within the first 2.8 gms

60 minutes

Release

of Arsenic

within

minutes and 120 minutes

first 60 minutes

Release of Tellurium within 60 78.3 gms

minutes and 120 minutes

The vindictiveness and irresponsibility of DRS STS in Texas working without

TWCA are also apparent from the fact that at least in the SWIR Range, alternatives

to HgCdTe existed, in the form of IIP V semiconductors, like InGaP (Indium Gallium

Phosphide) and InGaAs (Indium Gallium Arsenide).

B. Statute of Limitations

Second, Petitioner’s claims are not barred by the statute of limitations

because Petitioner filed the original cause of action with the trial court within 2

years of being diagnosed with prostate cancer in 2018. Tex. Civ. Prac. & Rem. Code

§16.003(a) (The statute of limitations for a personal injury case is two years.)

Petitioner was diagnosed with prostate cancer in 2018. Petitioner filed this cause of

action on March 11, 2019, well within his statute of limitations.

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C. Causation of Injuries/Damages

Finally, Respondents’ acts/omissions directly caused Petitioner’s injuries.

Chandra advanced as a renowned expert in liquid Mercury Cadmium Telluride and

its extremely high vapor pressures over the system.

Chandra has written

numerous articles on related matters. Chandra received the recognition of his

knowledge and progress and originality in all forms of single crystal and epitaxial

film growth for Mercury Cadmium Telluride by winning a prestigious and seminal

USRA Fellowship at the National Aeronautics and Space Administration to further

develop crystal growth technology. Based on his knowledge and experience, he has

outlined the leak rates for the reactors as follows:

LEAK RATES FROM TELLURIUM SATURATED EPITAXIAL REACTOR 1

Set 1

Set 2

Set 3

19.4gms

17.6gms

22.1gms

60 24.2gms

21.4gms

Reactor shut

Release of Cadmium within the first

60 minutes

Release

of Cadmium

within

down

minutes and 120 minutes

to

repair crack

Release of Cadmium within 120 Reactor

minutes and 180 minutes

Reactor shut Reactor shut

shut

down down

to down

to

repair repair crack

repair crack

crack

Release of Mercury within the first 94.2gms

91.3gms

112.8gms

to

15

60 minutes

Release

of

Mercury

within

60

127.6gms

132.4gms

Reactor shut

minutes and 120 minutes

down

to

repair crack

Release

of Mercury

within

120 Reactor

minutes and 180 minutes

Reactor shut Reactor shut

to down

shut

down down

to

repair repair crack

to

repair crack

crack

Release of Arsenic within the first 60 6.1gms

5.4gms

8.8gms

8.6gms

Reactor shut

minutes

Release

of

Arsenic

within

60 7.8gms

minutes and 120 minutes

down

to

repair crack

Release

of Arsenic

within

120 Reactor

Reactor shut Reactor shut

shut

down down

to down

to

repair repair crack

minutes and 180 minutes

to

repair crack

crack

Release of Tellurium within the first 85.7gms

92.7gms

105.7gms

110.4gms

Reactor shut

60 minutes

Release

of Tellurium

minutes and 120 minutes

within

60

103.7gms

down

repair crack

to

16

Release of Tellurium within 120 Reactor

minutes and 180 minutes

Reactor shut Reactor shut

shut

down down

to down

to

repair repair crack

to

repair crack

crack

These contain 6 * 20 grams of Cadmium, 3 ■ 4 grams of Arsenic, 70 * 100

grams of Mercury and 60 ■ 90 grams of Tellurium. They are all in their hyper

carcinogenic elemental form due to dissociative sublimation and the presence of

hydrogen. Under normal circumstances, 0.06 microgram of the Cadmium, 0.10

microgram of Arsenic, 0.08 microgram of Mercury and 0.10 microgram of Tellurium

can cause lower body cancers.

So the reactors are releasing each, between, 10

million to 500 million times the dosages required to cause cancer. A growth run

lasts for 8 hours or longer. So the total release is 8 times or more the values given

above.

RELEASE DURING MWIR GROWTH

Dav 1

Day 2

Release of Cadmium within the first 60

Dav 3

18.6 gms

20.3 gms

17.8 gms

Release of Cadmium within 60 minutes 20.4 gms

17.4 gms

22.7 gms

84.2 gms

71.7 gms

minutes

and 120 minutes

Release of Mercury within the first 60 76.3 gms

minutes

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Release of Mercury within 60 minutes 82.6 gms

77.3 gms

86.3 gms

3.8 gms

3.1 gms

2.8 gms

3.7 gms

74.7 gms

71.2 gms

73.2 gms

77.4 gms

and 120 minutes

Release of Arsenic within the first 60 3.3 gms

minutes

Release of Arsenic within 60 minutes 4.1 gms

and 120 minutes

Release of Tellurium within the first 60 71.3 gms

minutes

Release

of

Tellurium

within

60 78.6 gms

minutes and 120 minutes

These leak rates were communicated to DRS by the sole inventor and expert

on Tellurium saturated epitaxial reactors, Chandra, in September 1998, during the

transfer of Defense Systems and Electronics Group of Texas Instruments through

Raytheon to DRS Sensors and Targeting Systems. DRS ignored these bits of vital

information communicated to DRS by Chandra during the following 11 years.

Chandra designed and built a totally leak tight reactor and demonstrated its

massive producibility. Without any explanation or discussion, DRS STS destroyed

the leak tight reactor.

Petitioner has direct knowledge that

manufacturing of the films was

invented, developed and demonstrated by Chandra to be possible from a range of

epitaxial processes, Tellurium rich epitaxy, Mercury rich epitaxy, Metal Organic

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Chemical Vapor Deposition, and Molecular Beam Epitaxy. Volume production is

possible more directly from the Liquid Phase Epitaxy processes, which include the

Tellurium rich epitaxial reactors, and the Mercury rich epitaxial reactors. Chandra

invented and developed both types of the Liquid Phase Epitaxy process for the high

volume growth of the Mercury Cadmium Telluride films - Tellurium Rich and

Mercury Rich.

During substrate loading, this transfer chamber is disconnected from the

reactor, and after closing of the transfer chamber valve, the transfer chamber is

flushed with hydrogen to drive out air, and then the valve connecting this to the

main reactor is opened, the substrate holder assembly holding the substrate, inside

of which there is a stirrer, are all lowered to the melt container. The melt container

may be superficially protected by a loose lid, all made of glass, and which can be

opened or closed by another glass rod going through the top of the reactor, which is

the same as the top of the transfer chamber.

There are at least three relatively flimsy Oring joints separating the

dangerous vapors in the reactor from the outside air in the laboratory. As O-rings

degrade, they leak. Furthermore, two O-rings are constantly experiencing

contaminated hot glass rods and tubes being withdrawn through them straight out

in the outside ambient air fast.

And micro-cracks also form in the relatively flimsy supports holding the melt

container with a heavy load of melt to the wall of the reactor. And these micro­

cracks allow direct release of all the toxic vapors into outside ambient air fast.

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The vapors vaporize by the process of dissociative sublimination. Presence of

hydrogen kept the vapors (species) in their reduced elemental stage. Hydrogen does

not react with Cadmium, Arsenic, Mercury and Tellurium. When the melt consists

of a mixture of tellurium and selenium, the whole laboratory becomes full of

dangerous strong rotten egg smell of hydrogen selenide, indicating a concentration

of 100 ppm or more, confirming directly our release data on Cadmium, Arsenic,

Mercury and Tellurium.

The releases are particularly aided by the presence of a separate Mercury

Reservoir below the Melt Container, hydrogen constantly flowing and sweeping up

the Mercury vapor to sweep all other vapors, defects/cracks in the glass in these

flimsy designs, raising, lowering and rotations of the tubes for homogenizing the

melt, determination of the liquids, and the growth itself. During these times, either

a solid glass rod is rotating inside a degrading Oring, releasing toxic vapors or

another glass tube is rotating inside another degrading Oring, frequently

accentuated by micro-cracks which may not be spottable. The combined Mercury

Reservoir flow upwards, Melt running at > 400 C, Hydrogen flow, dissociative

sublimation, Tubes or Rods rotating within degrading O-rings, Micro-cracks, all

combine to produce leak rates equivalent to > 50 million times the magnitudes

required to onset cancer.

But hydrogen does react with Selenium and Sulphur, forming obnoxious

smelling and dangerous vapors like hydrogen selenide or hydrogen sulphide.

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Petitioner worked in this environment at Respondents’ workplace for a

substantial time that it caused him health issues, including but not limited to

prostrate and colon cancer.

Respondents’ failed to provide a safe working

environment that directly led to his cancer, which is the basis of the underlying

lawsuit.

The evidence with inference in favor of the nonmovant clearly negates

Respondents’ original motion for summary judgment. Under Rule 56, Petitioner is

only required to show one genuine issue of material fact to prevent the granting of

summary judgment and here Petitioner has presented several that were simply not

acknowledged by the lower courts.

CONCLUSION

For the reasons stated above, the Court should issue a writ of certiorari to

review the judgment of the Texas Supreme Court in this case.

Respectfully submitted this 21st day of August, 2021.

/s/ Dinankar Chandra

Dipankar Chandra

Pro se (with limited assistance of counsel)

P.O. Box 452571

Garland, Texas 75045

Telephone: 214-448-1172

dchandradl @gmail.com

PETITIONER