Opposition Brief — Cline v. Ashland, Inc. (No. 06-1329)

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(2) FILED

No. 06-1329 MAY 1- 2007

OFFICE UF THE CLERK

SUPREME COURT, U.S.

In The

Supreme Court of the United States

MARTHA JANE CLINE, Executrix of the

Estate of Jackie Edward Cline,

Petitioner,

ASHLAND, INC.; CHEVRON PHILLIPS CHEMICAL LP,

successor in interest to CHEVRON CHEMICAL

COMPANY, LLC; and EXXON MOBIL CORPORATION,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Alabama

RESPONDENTS’ BRIEF IN OPPOSITION

GEORGE M. WALKER Louis C. WOOLF

Counsel of Record

HAND ARENDALL, L.L.C. WOOLF, MCLANE, BRIGHT,

Post Office Box 123 ALLEN & CARPENTER

Mobile, Alabama 36601 Post Office Box 900

Phone: (251) 432-5511 Knoxville, Tennessee

37901-0900

Phone: (615) 215-1000

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

CORPORATE DISCLOSURE

In accordance with Supreme Court Rule 29.6, Respon-

dents disclose the following:

1. Ashland, Inc., is a corporation whose stock is

publicly traded. It does not have a parent corporation. No

publicly held company owns 10% or more of the stock of

Ashland, Inc.

2. Exxon Mobil Corporation is a corporation whose

stock is publicly traded. It does not have a parent corpora-

tion. No publicly held company owns 10% or more of the

stock of Exxon Mobil Corporation.

3. Chevron Phillips Chemical Company is a joint

venture owned by Chevron Corporation and ConocoPhil-

lips, each of which is a publicly traded company.

TABLE OF CONTENTS

Page

CORPORATE CLUB rec cecvevessecveccacoveneressosenssonsonvonee i

TABLE OF CONTENTS ..............000++ aiaaiiuaichinditdiadaieiiainaeta ii

TREE Ge A ee 6 a ecensensicesnctensnsnceccavesvinarentniennnsin iv

PERCEIVED MISSTATEMENTS OF FACT OR LAW.... 1

ADDITIONAL JURISDICTIONAL FACTS ...........c:cccceeee 1

REASONS FOR DENYING THE WRIT ............::cceseeseees 5

I. THIS COURT LACKS JURISDICTION............. 5

A. The Supreme Court of Alabama did not

decide the federal constitutional issue that

is presented by the petition.....................005 6

B. The Supreme Court of Alabama did not

have jurisdiction itself to decide the fed-

eral constitutional issue that is presented

a Fe a ieneccnsnereccticdeveiveiennnteieteniiniie 12

C. The decision of the Supreme Court of Ala-

bama was based on adequate and inde-

pendent state law grounds...............:cceeeee 14

Il. THERE IS NO COMPELLING REASON FOR

THIS COURT TO EXERCISE ITS DISCRE-

TION TO REVIEW THIS CASE....................000 16

A. Decedent was not deprived of his cause of

ROTIOED scovccecenenitinnirpviaessntniiaienisteinieiiianniiiinen 16

B. There is no substantial federal question

UOIOE, occscsccnstvscsinnicnbesstainabintodietaeeiiiadinn 18

C. None of the considerations set out in Su-

preme Court Rule 10 is present in this

TABLE OF CONTENTS - Continued

Page

1. There is no conflict between the no

opinion affirmance of the Supreme

Court of Alabama and the decision of.

any other state court of last resort or

any United States court of appeal......... 21

(a) State GeckeiOws .......<<ccccceccccevoossceccorss 21

(b) Federal decisions .............:0cccecceeceeers 23

2. The no opinion affirmance of the Su-

preme Court of Alabama did not decide

an important question of federal law that

has not been decided by this Court........... 26

3. The no opinion affirmance of the Su-

preme Court of Alabama was not de-

cided in a way that conflicts with

relevant decisions of this Court............. 27

D. There is no manifest injustice resulting

from the decision of the Supreme Court of

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson, 520 U.S. 83 (1997)............ccecees passim

Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala.

TIE). vicsunssictbataamanstsecdsentcbeuaseiteneciemsadaaaariaaiins 12

Alexander v. Beech Aircraft Corp., 952 F.2d 1215

CR Ce, BI iovtascncssevesecrsisveciunsienisvemninenh 26, 29

American Mut. Liab. Ins. Co. v. Phillips, 491 So. 2d

BE CA, Se ea venseicesecacherssinciixcinienscsceremeaaan 16, 29

Anderson v. Wagner, 402 N.E.2d 560 (Ill. 1979)... 19

Armstrong v. Life Ins. Co. of Virginia, 454 So. 2d

BOE COs RD cstctksiccecucauncincvessicsccsacbestecintaueviccionaceuties 16

Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134 (Ala.

SEIT} cciisrincicdeessercadaticamb ain aaaenrae 16

Bell v. Wolfish, 441 U.S. 520 (1979).........cccccccssrrrrrrrecrsceee 13

Board of Regents of University of State of New York

v. Tomanio, 446 U.S. 478 (1980) ....ccccrcscccsseseresscsereesscoss 27

Boyce v. Cassese, 941 So. 2d 932 (Ala. 2006) .................6 29

Brackin v. Trimmier Law Firm, 897 So. 2d 207

CRE, BED vi isuccvcchesiccnvacconcacducnsaidendacencedeisiivasasmenainan 13

Branson v. O.F. Mossberg & Sons, Inc., 221 F.3d

RG Le Ge, Be ichicscstisstsaicsknictinreccenpndesn 25

Brubaker v. Cavanaugh, 741 F.2d 318 (10th Cir.

PIG cosickassenpeisdcciamnanasidecrscesaessboasenmantanamnendiasaanta 25

Bunker v. Nat'l Gypsum Co., 441 N.E.2d 8 (Ind.

1982), cert. denied, 460 U.S. 1076 (1983) ............... 19, 21

TAP UE OF AUTHORITIES — Continued

Page

Bunker v. Nat'l Gypsum Co., 460 U.S. 1076 (1983).......... 19

Campbell v. Alabama Power Co., 567 So. 2d 1222

SIE TENET: saecctabsipsiicsniietioninbishasetniieababeltieienipbnieniaiecabauupiieteiasics 12

Campbell v. Louisiana, 523 U.S. 392 (1998) ........... eee 7

Cardinale v. Louisiana, 394 U.S. 437 (1969).................0006 9

Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d

SE IUEE CIEE TED cicirevitivestvnrvuiesnemendsbinevivibiesomedinieetmnns 24

City of Mobile v. Gulf Dev., 171 So. 2d 247 (Ala.

Suara nicheneeltileiihieiainndtenapeesbicitipieuanduiisnilenstieieaniglanialiabainieraines 11

Clark v. Gulesian, 400 U.S. 993 (1971) we eeceeeeeeeeeees 19

Clark v. Gulesian, 429 F.2d 405 (1st Cir. 1970), cert.

denied, 400 U.S. 993 (1971) .........ccscsccsccceeseeeceeveeecees 19, 24

Coleman v. Thompson, 501 U.S. 722 (1991)................ 14, 15

Continental Eagle Corp. v. Mokrzycki, 611 So. 2d

SE Ey BITE wicichbsnininiieidseeeinssninhinseniehuiniaemcbininiiilienmnices 12

Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198

TEND SUITE simepnennendecsdpesdedenrebucnsniasubialeeeeiaipnasnautoeuaiblebnie 13

Cuyahoga River Power Co. v. Northern Realty Co.,

Se EN I TD Checkivisiietiadinttuininsaibaiinsalionsincddanteniniagid ae

DeVenney v. Hill, 918 So. 2d 106 (Ala. 2005)...............00. 15

Dincher v. Marlin Fire Arms Co., 198 F.2d 821 (2nd

Sih ciiiacdhbieliaciiscarnetestaabensentleepaisieninnd chsaiibaglaioatatniiuniaaiaias 24

Dinh v. Rust Int'l tht 974 F.2d 500 (4th Cir.

+ ERASE ye iene ere nro n are aC NE SO em 25

Dunn v. Felt, 379 A.2d 1140 (Del. Super. 1977)................ 22

Eaton v. Jarvis Prods. Corp., 965 F.2d 922 (10th

Ira <I IETITIT isesiniascelenancbeaieiscaionsiodiecietibbibablinniopiedbanlitnideinbieeaenibanobebi 26

TABLE OF AUTHORITIES — Continued

Page

Eddings v. Volkswagenwerk, A.G., 835 F.2d 1369

PE SE iccidecincsiineciiniendeshiceatsiiventiehesutamauibgunciiiete 20, 26

Ellerbe v. Otis Elevator Co., 459 U.S. 802, reh.

denied, 469 U.S. 10569 (1982) .........ccccccccccscessesssersers 19, 27

Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.

CO BAIR, SEED ceccicerensntnisnieserecseciensnevastntnnaniintomininnvnennicns 19

Eustis v. Bolles, 150 U.S. 361 (1893) ..........:cceccccecsessseeseens 14

Ex parte St. Vincent’s Hospital, 652 So. 2d 225 (Ala. |

SII sinclectehcihnceontescmesladedicteianecietedundbiaidiietpensitalendinnandeainebeiaaniveninioas 12

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)... 10

Fields v. Legacy Health System, 413 F. 3d 943 (9th

ERE aE ue rere ere eon em Maan Sonera one 26

Fuller v. Oregon, 417 U.S. 40 (1974)........ seciialanedebinasndnicuiitiniminds 7

Garrett v. Raytheon Co., Inc., 368 So. 2d 516 (Ala.

Saag MCE ence ta 16, 17, 29

Griffin v. Ford Motor Co., 488 U.S. 822 (1988)........... 20, 26

Harris v. Black Clawson Co., 961 F.2d 547 (5th Cir.

IIIT scsidenniteipbulitipcuatemamadessaaepiaasalisiieidesebidadiaiialimuadcessdidaaiiidtabelas 25

Harris v. Reed, 489 U.S. 255 (1989)...........cceeseeceeeeseeereeeees 15

Hartford Fire Ins. Co. v. Lawrence, Dykes,

Goodenberger, Bower & Clancy, 740 F.2d 1362

es nei nl eed eneieaaioiad 25

Heath v. Alabama, 474 U.S. 82 (1985)...............ccccceeeeeeeeeees 6

Hicks v. Miranda, 422 U.S. 332 (1975)...........cceeeeeeeeeeeeeees 18

Hillis v. Rentokil, Inc., 596 So. 2d 888 (Ala. 1992)........... 16

Hinton v. Monsanto Co., 813 So. 2d 827 (Ala.

UU Pcciccipishaiadtielibetliieoincaisasisdibcnsibicancchad lMtanaehdanisaaaasnidudnaiid 1,17, 18

vil

TABLE OF AUTHORITIES — Continued

Page

Home Ins. Co. v. Stuart-McCorkle, Inc., 285 So. 2d

< BE Cs FER einccorccininitintcatbeniaiaaionmmiaae 16, 17

Hubbard v. Liberty Mut. Ins. Co., 599 So. 2d 20

CR, TIED cccisnnenstitniicbicitatinkintatsinettiaatemaman malian 16

Illinois v. Gates, 462 U.S. 213 (19838)............sscsccrresseserseees 6

Johnson v. Garlock, Inc., 682 So. 2d 25 (Ala. 1996)......... 16

Knetsch v. United States, 364 U.S. 361 (1970)..............0.. 13

Lambrix v. Singletary, 520 U.S. 518 (1997) oes 14

Landers v. O’Neal Steel, Inc., 564 So. 2d 925 (Ala.

SEIT. xsvinrevinssnntpisiietusasivastiasdamnniaenaseaniiaaimaiaaiadaal 12

Landgraff v. Wagner, 546 P.2d 26 (Ariz. App. 1976)......... 22

Langley v. Mut. Fire, Marine and Inland Ins. Co.,

GES Bo. Be FER CAte, BT i ccecccccscutersecsesasssentisseventveetactin 16

Laster, Jr. ex rel. Laster, Sr. v. Norfolk Ry. Co., Inc.,

SOG Wi, BOCFS GAda. FOBT) ccccessesnetsvivecnsserenecionsmeivercnens 15

Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. 1968) ...... 21, 22

Liberty Nat'l Life Ins. Co. v. Univ. of Ala. Hlth.

Sucs. Found., 881 So. 2d 1013 (Ala. 2003)...............:e 5

Lourdes High School v. Sheffield Brick & Tile Co.,

SFO F.Bb GES COs Gar, BR ccsircccnsiscstseternmcieriietstnen 25

Lynch v. New York, 293 U.S. 52 (1934) ......cccceseesserreeees 6, 10

Mathis v. Eli Lilly & Co., 719 F.2d 134 (6th Cir.

SOD: ssucinis cassie vdasintabuietidiccammniiaiieniiaiaas sawaheanaa 24

Matter of Anonymous, 515 So. 2d 1254 (Ala. Civ.

| RTM ETE I APIA EE TO 11

Michigan v. Long, 463 U.S. 1032 (1983)... 14, 15

TABLE OF AUTHORITIES — Continued

: Page

Mobile Airport Auth. v. HealthStrategies, Inc., 886

TILT ns cas ctresntncnennetooenendocsoedseecorteeee 15

Moon v. Harco Drugs, Inc., 435 So. 2d 218 (Ala.

sass ensmnbenennnnnunneneens 29

Munn v. Illinois, 94 U.S. 113 (1877)... eceeeeeeeeeeees 28

Nat'l Comm’n on Egg Nutrition v. Federal Trade

Comm’n, 570 F.2d 157 (7th Cir. 1977), cert.

Bete, SBS U.B, GB1 (1978) ...cccccceccecccevccceveveveeevessceeveese 13

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

a cores gciprcnmenepeneenonensensassewndes 8

Norwest Bank v. W.R. Grace & Co., 960 F.2d 754

a a puneshdosonepeneiionesintens 25

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959)............... 18

Order of R.R. Telegraphers v. Ry. Exp. Agency, 321

Ea 29

Owen v. Wilson, 537 S.W.2d 543 (Ark. 1976)............... 21, 22

Payton v. Monsanto Co., 802 So. 2d 829 (Ala. 2001)........ 29

Pittman v. United States, 341 F.2d 739 (9th Cir.

as srceadosnnsusonenennsoseiues 25

Pitts v. GAF Corp., 464 U.S. 1003 (1983) ......... cee 1,19

Pitts v. Unarco Indus., Inc., 712 F.2d 276 (7th Cir.

rita ca dase sarencentenoenevoneontonseoeootonees 20

Railroad Co. v. Rock, 71 U.S. 177 (1866)..............cccccceeeeeees 7

Ramey v. Guyton, 394 So. 2d 2 (Ala. 1980)........:cccccceeeeees 29

Silver v. Silver, 280 U.S. 117 (1929) .......ccceeeseeeeeeeeeees 28

State ex rel. Baxley v. Johnson, 300 So. 2d 106 (Ala.

TABLE OF AUTHORITIES — Continued

Page

Street v. New York, 394 U.S. 576 (1969) .........ccccccceeeeeeeeeeees 7

Terry v. Anderson, 95 U.S. 628 (1877) .........ccceeceees 18, 21, 23

Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d

CBG GI, Fe cecicecacniacciletithignitecietebiieiacuiliaaainatanimtiieaisineiee 1

Travis v. Ziter, 681 So. 2d 1348 (Ala. 1996)................00000 29

Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263

Cita, TD ccciccnccicitcincieaisuisiisiceailininasipaddapiiianipunienbainiititis 16

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56

CE Sic scebrvsisnsscousebuncesonbeneiinisoiiabaietslsiesiialiieisbdtibiamainiinoniaa 13

United States v. Kubrick, 444 U.S. 111 (1979)............. 28, 29

Van Den Hul v. Baltic Farmers Elevator Co., 716

es Se Se NE ie cccsaiicineptetintinneiennincnanctiniietedsetins 25

Village of North Atlanta v. Cook, 133 S.E.2d 585

Gee, Tit sntacnsteinlinteninenetecnvaiieensevehicimcctaiiiastdnisbiendiiiehaiia 13

Walter A. Wood Mowing & Reaping Mach. Co. v.

FP ome OS GO | 6

Wayne v. Tennessee Valley Auth., 469 U.S. 1159

CIs ccsninesuiaiscinaiaaeintianala in tnaiieamaed ceed iadaitahliesicieaseibial 20

Wayne v. Tennessee Valley Authority, 730 F.2d 392

(5th Cir. 1984), cert. denied, 469 U.S. 1159 (1985) ..20, 25

Webb v. Webb, 451 U.S. 493 (1981) .......cceeeceeeeeeeerees 8,9, 14

Williams v. Kaiser, 323 U.S. 471 (1945) ..........cccccceecceeeeneees 5

Woodward v. Burnham City Hospital, 449 U.S. 807

CR cccvinridecneinsiitccipsincsbesicssiininipiaiiimainininenasiianss 18, 27

Yee v. Escondido, 503 U.S. 519 (1992) ........... ccc ccee eee 6, 10

TABLE OF AUTHORITIES — Continued

Page

RULES

Alabama Rules of Appellate Procedure, Rule 53(d)................. ll

Alabama Rules of Appellate Procedure, Rule 44..............:c:00 4

Alabama Rules of Appellate Procedure, Rule 53(aX2XF)....... 11

Alabama Rules of Civil Procedure, Rule 53............ccccccceseeseeees 15

United States Supreme Court, Rule 10 ..0..........ccccccecseeseeeseeeees 20

United States Supreme Court, Rule 15.2 .000.......ccccceeseeeeeeeees 1

United States Supreme Court, Rulle 29.6 ..0.......cccccccsceceeeeeeneeees i

STATUTES

SE ela: ae SITET sirvecninsninscisoenitaiipmninheiteadiipbseciinitainnianaiiacaeiagabliddinedinhtit 6

ALA. CODE § 6-2-30(a) (1975) .......rcccrsrorcosersenrrorsescoressersserees 5

ALA. CODE § 6-2-38(a) (1975) ...........ccrcccrooresesserorsscvsrserseees 5

AEA, CODE § CS-BEE) (IB FE) nccvcccccccevecsccocoversoccovesvonssosossssees 3

pg Tg SEE Le 3,4

Be Se Oe FR Oe Ce itenctedee ccecntisenteceedeiclncetesncacenstsasnsies 3

OTHER AUTHORITIES

ne PII GOO TE .. cuisccnndecsascetcionsdaneedsecneovene 13

Charles A. Wright & Miller, 16B Fed. Prac. & Proc.

is SE Ue ae esdetiaitacintbitaheslinecincinndinteivatddiinninioteaatniinedestaned 6

PERCEIVED MISSTATEMENTS

OF FACT OR LAW

Pursuant to Supreme Court Rule 15.2, Respondents

suggest that the following misstatements of fact or law

appear in the petition:

1. The “manifest, present injury” rule is not an

“ancient” rule in Alabama. See Pet. at 5. To the contrary,

that phrase was first used by the Supreme Court of Ala-

bama in Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala.

2001), a case in which plaintiffs sought medical monitor-

ing costs while disavowing any present injury or illness.

None of the five cases that Hinton cited as support for its

reference to a “manifest, present injury” rule was actually

a personal injury case, and each of those five decisions was

issued after 1995.

2. Thomas v. BSE Indus. Contractors, Inc., 624 So.

2d 1041 (Ala. 1993), did not apply the “manifest, present

injury” rule. See Pet. at 5. Thomas was not even a personal

injury case. Rather, it was a case brought under Alabama’s

tort of outrage cause of action, which required plaintiff to

prove that defendant engaged in intentional or reckless

conduct that was extreme and that caused plaintiff to

suffer emotional distress so severe that no reasonable

person could be expected to endure it. Jd. at 1043. Sum-

mary judgment was affirmed in Thomas not because of a

lack of a “manifest, present injury,” but rather because the

court concluded that “Thomas’s generalized fear of cancer,

unsupported by any clinical evidence, does not rise to the

level of ‘severe emotional distress’ necessary to present a

jury question on the tort of outrage.” Jd. at 1046.

ADDITIONAL JURISDICTIONAL FACTS

Petitiemér’s Statement of the Case contains many of

the facts necessary to this Court’s determination of its

jurisdiction to review this case, but such Statement omits

a number of facts relevant to the jurisdictional analysis.

Those omitted facts include all of the following:

1. There was no mention in Petitioner’s decedent’s’

Complaint’ of any constitutional or other challenge to the

two year statute of limitations applicable to decedent’s tort

claims. App. 1.

2. Respondents in their May 23, 2001, Answer

specifically averred that “all of plaintiff’s claims are

barred by the applicable statutes of limitation.” App. 8.

3. Following investigation and discovery, on August

28, 2002, Respondents filed a motion for summary judg-

ment, relying solely upon the argument that all of the

claims presented were barred by the applicable statutes of

limitation. App. 11; 15-16.

4. Decedent’s October 7, 2002, response to the

motion for summary judgment did not raise any challenge

to the coustitutionality of the statutes of limitation.

Rather, the response simply averred that the tort claims

were not barred by the two year statute of limitations

because decedent had been exposed to benzene supplied by

one of the other defendants within the two year period

before he filed his Complaint. App. 19; 21-27.

5. On January 14, 2003, the trial court denied Re-

spondents’ motion for summary judgment as to decedent’s

' Petitioner is the Executrix of the Estate of Jack Cline, who died

shortly after the Supreme Court of Alabama issued its second no

opinion affirmance in this case on January 5, 2007. For ease of refer-

ence, Mary Jane Cline will be referred to herein as “Petitioner” and -

Jack Cline will be referred to herein as “decedent.”

* The Complaint also named as defendants BP Amoco Chemical

Company, BP Amoco Corporation, Holmes Oil Company, Inc., and

Thompson & Formby Company. In exchange for pro tanto settlement

payments totaling $60,000.00, decedent in January of 2005 stipulated

to the dismissal of his claims against all defendants other than

Respondents.

tort claims, but it granted the motion for summary judg-

ment as to decedent’s breach of warranty claim.’ App. 29.

6. On January 8, 2004, Respondents filed a second

motion for summary judgment. In addition to renewing

their contention that decedent’s claims were barred by the

two year statute of limitations, Respondents asserted that

they were separately and independently entitled to sum-

mary judgment on state law substantive grounds. App. 30-

31.

7. Decedent served his response on June 21, 2004.

There was no mention therein of any challenge to the

constitutionality of the two year statute of limitations. In

fact, decedent simply took the position that the statute of

limitations issue had already been decided in his favor and

that the issue need not be reconsidered. App. 37.

8. The trial court heard arguments on Respondents’

motion for summary judgment on January 12, 2005, and

took the motion under submission at that time. During

such arguments, counsel for decedent did not raise or

assert any challenge to the constitutionality of the two

year statute of limitations.

9. The constitutional due process issue was first

suggested in an amicus curiae brief filed on February 8,

2005, while the summary judgment motion was under

submission. But neither that brief nor its accompanying

article was served upon the Attorney General of the State

of Alabama, as is required by Alabama law when a party

challenges the constitutionality of a statute.‘ ALA. CODE

§ 6-6-227 (1975).

* The breach of warranty claim was governed by a separate statute

of limitations that required that the claim be brought within four years

from the tender of delivery of the product. ALA. CODE § 7-2-725 (1975).

* As Respondents understand Petitioner’s claimed constitutional

question, it is that the Alabama statute of limitations, ALA. CODE § 6-5-

38(1) (1975), is unconstitutional as applied to toxic tort victims with

(Continued on following page)

10. Decedent’s Notice of Appeal did not identify any

constitutional issue. The “ISSUES” section of the Notice of

Appeal identified only a single non-constitutional issue:

In an AEMLD personal injury action for injury

caused by exposure to a toxic substance, does the

statute of limitations accrue against all joint

tortfeasors upon the plaintiff’s last exposure to

the toxic substance.

App. 52. Also, decedent answered “No” to the specific

question on the Notice of Appeal form whether the provi-

sions of Rule 44 of the Alabama Rules of Appellate Proce-

dure’ were applicable to the appeal. App. 50. Thet question

is posed in a box on the Notice of Appeal form entitled

“CONSTITUTIONAL ISSUES.” Id.

11. On appeal to the Supreme Court of Alabama, in

addition to arguing the bar created by the statute of

limitations to sustain the trial court’s judgment, Respon-

dents also argued that the judgment should be affirmed

because: (a) decedent had not produced substantial evi-

dence that he experienced a substantial benzene exposure;

(b) he had not produced substantial evidence that any

product supplied by any Respondent was defective or

unreasonably dangerous; and (c) he had not produced any

admissible evidence causally associating his illness with

any exposures. Pet. App. at 83. Under Alabama law, the

Supreme Court of Alabama was authorized to affirm the

latent or late-discovered injuries, because it bars lawsuits filed more

than two years after the last date on which the claimed exposure

occurred.

* Rule 44 of the Alabama Rules of Appellate Procedure, similar to

ALA. CODE § 6-6-227 (1975), requires that any party in an appellate

matter challenging the validity of any statute serve a copy of the party’s

written brief on the Alabama Attorney General. Decedent’s counsel did

serve copies of his appellate briefs on the Alabama Attorney General,

evidencing coumsel’s belief that a challenge to the constitutionality of a

statute was involved.

judgment of the trial court on any of these bases, notwith-

standing that the trial court’s judgment relied solely upon

the bar created by the statute of limitations. Liberty Nat'l

Life Ins. Co. v. Univ. of Ala. Hith. Sucs. Found., 881 So. 2d

1013, 1020 (Ala. 2003).

REASONS FOR DENYING THE WRIT

“ The petition for writ of certiorari should be denied

because this Court lacks jurisdiction to reach the constitu-

tional issue that Petitioner presents. Howéver, in the

event that the Court nevertheless determines that it has

jurisdiction to review the no opinion affirmance of the

Supreme Court of Alabama, the Court should nevertheless

exercise its ample discretion and deny the petition because

Petitioner has not demonstrated any compelling reason

why this Court should exercise its discretion to accept the

petition, nor has she demonstrated that a question of

substantial constitutional importance is presented.

I. THIS COURT LACKS JURISDICTION.

Petitioner presents the substantive question whether

ALA. CODE §§ 6-2-30(a) and 6-2-38(a), as interpreted by the

Supreme Court of Alabama, violate Petitioner’s due

process rights under the Fourteenth Amendment of the

United States Constitution. Pet. at i. However, before this

Court can or should endeavor to answer this question, it

must first determine whether it has jurisdiction to do so.

See, e.g., Adams v. Robertson, 520 U.S. 83 (1997) (dismiss-

ing writ of certiorari as improvidently granted when it

became apparent that the Court did not have jurisdiction).

As stated in Williams v. Kaiser, 323 U.S. 471 (1945):

It is a well established principle of this Qourt

that before we will review a decision of a state

court it must affirmatively appear from the re-

cord that the federal question was presented to

the highest court of the State having jurisdiction

and that its decision of the federal question was

necessary to its determination of the cause ...

And where the decision of the state court might

have been either on a state ground or on a fed-

eral ground and the state ground is sufficient to

sustain the judgment, the Court will not under-

take to review it.

Id. at 477 (internal citations omitted); see also Lynch v.

New York, 293 U.S. 52, 54 (1934). In the present case, the

petition should be denied because the record does not show

that the Supreme Court of Alabama was presented or

decided the federal question. In fact, the Supreme Court of

Alabama did not have jurisdiction to decide the federal

question. Further, the decision of the state court could

have been decided on independent and adequate state

grounds, which likewise deprives this Court of jurisdiction

to review the question presented.

A. The Supreme Court of Alabama did not de-

cide the federal constitutional issue that is

presented by the petition.

The threshold procedural requirement for United

States Supreme Court review is that the federal question _

has been presented to the state courts. Charles A. Wright,

et al., 16B Fed. Prac. & Proc. Juris. 2d § 4022. With “very

rare exceptions,” the Court has “adhered to the rule in

reviewing state court judgments under 28 U.S.C. § 1257

that [it] will not consider a petitioner’s federal claim

unless it was either addressed by, or properly presented to,

the state court that rendered the decision [the Court] has

been asked to review.” Adams, 520 U.S. at 86 (citing Yee v.

Escondido, 503 U.S. 519, 533 (1992)); see also, e.g., Heath

v. Alabama, 474 U.S. 82, 87 (1985); Illinois v. Gates, 462

U.S. 213, 217-19 (1983); Walter A. Wood Mowing & Reap-

ing Mach. Co. v. Skinner, 139 U.S. 293 (1891) (dismissing

appeal for want of jurisdiction where the highest court

of the state affirmed with no opinion when it was

unclear whether the lower court decided on state or

federal law grounds). Furthermore, it must appear “on the

face of the record” that the state court considered the

federal question “before it can be re-examined in this

court.” Railroad Co. v. Rock, 71 U.S. 177, 180 (1866)

(holding even where state court certified that the federal

question was presented this Court found it not authorita-

tive and examined it independently and found the record

did not support this contention).

The party seeking review must carry the burden of

proving that the federal question was presented to the

state courts. E.g., Campbell v. Louisiana, 523 U.S. 392,

401 (1998); Fuller v. Oregon, 417 U.S. 40, 50 n.11 (1974);

Street v. New York, 394 U.S. 576, 582 (1969). But, it is

clear that the Supreme Court of Alabama did not review or

decide the federal due process issue in this case. The

Supreme Court of Alabama simply affirmed, without

opinion, the trial court’s grant of summary judgment. The

trial court’s grant of summary judgment was not based on,

and did not even address, the federal due process issue.

Pet. App. at 54-55. The trial court judgment was instead

based on long-standing and oft-reaffirmed Alabama law

relating to the applicable statutes of limitation: “plaintiff’s

claims against those defendants expired within two years

of his last exposures to their products (1989), or within

four years of the last tender of delivery of benzene by any

of them to which he was exposed (1991).” Pet. App. at 55.

The trial court also concluded that recent exposures to one

‘manufacturer’s product did not serve to resurrect dece-

dent’s claims against manufacturers of other products to _-

which he was previously exposed. Jd. As Petitioner con-

cedes, there is absolutely no mention of the federal due

process issue in any of the concurrences or in the dissent

* This was the holding that decedent actually appealed to the

Supreme Court of Alabama, according to his Notice of Appeal. App. 52.

to the no opinion affirmance of the Supreme Court of

Alabama. Pet. at 9. Under the circumstances, Petitioner

has failed to meet her burden of demonstrating that the

question presented in this Court was presented to the

court below or that the court below actually decided the

question.

When the state court decision is silent on the federal

issue, as in this case, this Court assumes that the issue

was not properly presented to the highest state court and

the petitioner bears the burden of defeating this assump-

tion “by demonstrating that the state court had ‘fair

opportunity to address the federal question... .’” Adams,

520 U.S. at 86-87 (quoting Webb v. Webb, 451 U.S. 493, 501

(1981)); see also, e.g., New York ex rel. Bryant v. Zimmer-

man, 278 U.S. 63, 67 (1928). In Adams, the Court de-

scribed the different ways a petitioner may satisfy this

requirement:

In some cases, we have focused on the need for

petitioners either to establish that the claim was

raised “‘at the time and in the manner required

by the state law,’” or to persuade us that the

state procedural requirements could not serve as

an independent and adequate state-law ground

for the state court’s judgment. In other cases, we.

have described a petitioner’s burden as involving

the need to demonstrate that it presented the

particular claim at issue here with “fair precision \

and in due time.” ;

Adams, 520 U.S. at 87 (internal citations omitted). In the

present case, the federal claim was not presented to the

Supreme Court of Alabama in the time and manner

required by Alabama law, there are a number of substan-

tive arguments that serve as independent and adequate

state-law grounds for the decision of the Supreme Court of

Alabama, and, in any event, the federal claim now made

by Petitioner was not made with “fair precision and in due

time.” Plainly, Petitioner has failed to make the requisite

jurisdictional showing under Adams.

In Webb v. Webb, 451 U.S. 493 (1981), the petitioner

argued that although the Georgia Supreme Court was

silent in its opinion with regard to the federal question,

the record demonstrated that she did raise the federal

question and that the “State Supreme Court must be

understood as having implicitly rejected her federal

claim.” 451 U.S. at 496. The Court recognized that the

petitioner did use the constitutional phrase “full faith and

credit” at several points in the proceedings, but found this

insufficient. Jd. at 498. Despite the absence of a full faith

and credit provision in the Georgia Constitution, the Court

still found that “[wJe cannot conclude on this record that

petitioner raised the federal claim that she now presents

to this court at any point in the state-court proceedings.”

Id. Citing the policy reasons’ underlying the rule, this

Court reasoned:

" Policy reasons discussed in Webd and in other case law include:

(1) “Principles of comity in our federal system require that the state

courts be afforded the opportunity to perform their duty, which includes

responding to attacks on state authority based on the federal law, or, if

the litigation is wholly private, construing and applying the applicable

federal requirements.” Webb, 451 U.S. at 499; see also Cardinale v.

Louisiana, 394 U.S. 437, 439 (1969); (2) “The requirement affords the

parties the opportunity to develop the record necessary for adjudicating

the issue.” Webb, 451 U.S. at 500; (3) “The rule also insures that if there

are independent and adequate state grounds that would pretermit the

federal issue, they will be identified and acted upon in an authoritative

manner.” Id.; (4) “Finally, if the parties to state-court litigation are

required to present their federal claims in the state tribunals in the

first instance, those issues will be adjudicated in the state courts where

necessary to dispose of the case. In most instances, such a judgment

will be supported by an opinion that may well obviate any reason for

our giving plenary consideration to the case. In terms of our own

workload, this is a very substantial matter.” Jd. at 500-01. As demon-

strated more fully herein, denying writ of certiorari in this case would

serve all of these policy concerns.

At the minimum, however, there should be no

doubt from the record that a claim under a fed-

eral statute or the Federal Constitution was pre-

sented in the state courts and that those courts

were apprised of the nature or substance of the

federal claim at the time and in the manner re-

quired by the state law.

Id. at 501 (emphasis by the Court).

Similarly, in Yee v. City of Escondido, 503 U.S. 519

(1992), the petitioner did not raise federal due process

claims in the state courts properly. Yee did not include a

due process claim in his complaint, nor did he raise it in

the California Court of Appeals. It was not until his

petition for review to the California Supreme Court that

Yee finally raised a substantive due process claim, but the

California Supreme Court denied discretionary review.

This Court stated that “[s]uch a denial, as-in this Court,

expresses no view as to the merits.” Jd. at 533. As such,

this Court reasoned that the state court did not address

the federal claim; therefore, the United States Supreme

Court would not consider it. Jd.

The burden on Petitioner to establish federal jurisdic-

tion is even greater when the state’s highest court is

completely silent on the federal question, as in this case.

In Lynch, supra, the state’s highest court affirmed a trial

court order without an opinion, “and the grounds of its

decision [were] left to conjecture.” 293 U.S. at 54. Although

language in the lower court’s decision suggested that it

decided the federal issue, and “[iJt may be surmised ...

that the affirmance ... went upon the same ground,” that

was insufficient to establish the Court’s jurisdiction

because “jurisdiction cannot be founded upon surmise.” |

Id.; see also Exxon Corp. v. Eagerton, 462 U.S. 176, 181 n.3

(1983) (“The decision below does not discuss thle federal

issue], and ‘when the highest state court has failed to pass

upon a federal question, it will be’assumed that the omis-

sion was due to want of proper presentation in the state

courts, unless the aggrieved party in this Court can

affirmatively show the contrary.’”) (internal citations

omitted) (emphasis added); Cuyahoga River Power Co. uv.

Northern Realty Co., 244 U.S. 300, 304 (1917) (in the

“absence of an opinion expressed by the court below, it is

impossible to say whether its judgment was rested upon

state questions adequate to sustain it independent of the

Federal questions, or upon such Federal questions, both

being in the case.”). It is significant in this regard that

under Alabama law the Supreme Court of Alabama will

not decide the constitutionality of a statue unless the

question is “essential” to the disposition of the cause. E.g.,

City of Mobile v. Gulf Dev., 171 So. 2d 247, 255 (Ala. 1965);

Matter of Anonymous, 515 So. 2d 1254, 1256 (Ala. Civ.

App. 1987).

In the present case, there is no opinion below.’ Peti-

tioner cannot establish from the record that the Supreme

Court of Alabama considered the federal due process issue.

In fact, Alabama law presumes this issue was not decided

because a decision on the constitutional issue was not

essential to the disposition of the cause. The record reveals

only that the Supreme Court of Alabama affirmed the trial

court judgment, and it is absolutely clear that the trial

court judgment was not based upon, and did not even

make mention of, any federal due process issue. Finally,

and perhaps most significantly, Petitioner’s own Notice of

Appeal to the Supreme Court of Alabama affirmatively

* The Alabama Rules of Civil Procedure provide that a no opinion

affirmance “shall have no precedential value and shall not be cited in

arguments or briefs and shall not be used by any court within this

state,” except for very limited purposes. Ala. R. App. Proc. 53(d). The

Supreme Court of Alabama identified Rule 53(a)(2)F) as the basis for

its no opinion affirmance, which indicates that “[t}he Court, after a

review of the record and the contentions of the parties, concludes that

the judgment or order was entered without an error of law.” /d.; Pet.

App. at 2.

states that no constitutional issues were being presented.

App. 50. For all of the foregoing reasons, this Court lacks

jurisdiction and should deny the petition.

B. The Supreme Court of Alabama did not

have jurisdiction itself to decide the federal

constitutional issue that is presented by

the petition.

The Supreme Court of Alabama could not have de-

cided the federal due process issue in any event because it

lacked jurisdiction itself over the issue inasmuch as

decedent failed to raise the issue in the trial court. Under

Alabama law, the Supreme Court of Alabama may reach

and decide a constitutional issue “only when it has been

raised by a party at the trial level... .” Ex parte St. Vin-

cent’s Hospital, 652 So. 2d 225, 228 (Ala. 1994); see also

Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313, 322

(Ala. 1992); Campbell v. Alabama Power Co., 567 So. 2d

1222, 1225 (Ala. 1990) (holding that issues not raised in

the trial court may not be raised later on appeal); Landers

v. O’Neal Steel, Inc., 564 So. 2d 925, 926 (Ala. 1990)

(failure to raise constitutional issue in trial court pre-

cludes review of that issue on appeal). Stated slightly

differently, the law in Alabama is as follows:

In order for an appellate court to review a consti-

tutional issue, that issue must have been raised

by the appellant and presented to and reviewed

by the trial court. Additionally, in order to chal-

lenge the constitutionality of a statute, an appel-

lant must identify and make specific arguments

regarding what specific rights it claims have

been violated.

Alabama Power Co. v. Turner, 575 So. 2d 551, 552 (Ala.

1991) (internal citations omitted) (emphasis added).

Neither of these requirements was met in this case.

Petitioner simply argues that the constitutional issue

was presented in an amicus curiae brief submitted to the

trial court on February 4, 2005. Pet. at 7. But an argument

not made by the parties themselves is not properly before

the appellate court when presented in an amicus brief. 3B

C.J.S. Amicus Curiae § 18; United Parcel Serv., Inc. v.

Mitchell, 451 U.S. 56, 60 n.2 (1981); Bell v. Wolfish, 441

U.S. 520, 531 n.13 (1979); Knetsch v. United States, 364

U.S. 361, 370 (1970); Nat’l Comm’n on Egg Nutrition v.

Federal Trade Comm’n, 570 F.2d 157, 160 n.3 (7th Cir.

1977), cert. denied, 439 U.S. 821 (1978). This reasoning

should apply with equal force to arguments made to the

trial court only in an amicus brief.

In Alabama, an amicus curiae is not considered a

party in the action, and it cannot litigate issues that are

not presented by the parties: “An amicus curiae is not a

party, cannot assume the functions of a party, and cannot

contro] the litigation.” Brackin v. Trimmier Law Firm, 897

So. 2d 207, 232 (Ala. 2004) (statement of non-recusal by

Justice Brown) (quoting State ex rel. Baxley v. Johnson,

300 So. 2d 106, 110-11 (Ala. 1974)); see also Courtaulds

Fibers, Inc. v. Long, 779 So. 2d 198, 202 n.1 (Ala. 2000).

Instead, an amicus curiae must “accept the case before the

court with the issues made by the parties.” Brackin, 897

So. 2d at 233 (quoting Village of North Atlanta v. Cook,

133 S.E.2d 585 (Ga. 1963)).

In the present case, decedent never made mention in

the trial court of any federal constitutional issue at all,

and the trial court opinion upon which the appeal was

taken to the Supreme Court of Alabama made absolutely

no mention of either state or federal constitutional issues.

Since this argument was not presented to the trial court

by a party, the Supreme Court of Alabama lacked jurisdic-

tion to review or decide the federal constitutional issue

now argued by Petitioner, and its own lack of jurisdiction

now deprives this Court of jurisdiction to review the issue.

C. The decision of the Supreme Court of Ala-

bama was based on adequate and independ-

ent state law grounds.

“This Court will not review a question of federal law

decided by a state court if the decision of that court rests

on a state law ground that is independent of the federal

question and adequate to support the judgment.” Coleman

v. Thompson, 501 U.S. 722, 729 (1991); see also, e.g.,

Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Eustis v.

Bolles, 150 U.S. 361, 366 (1893) (“It is likewise settled law

that, where the record discloses that if a question has been

raised and decided adversely to a party claiming the

benefit of a provision of the Constitution or laws of the

United States, another question, not Federal, has been

also raised and decided against such party, and the deci-

sion of the latter question is sufficient, notwithstanding

the Federal question to sustain the judgment, this Court

will not review the judgment.”). This is true whether the

state law ground is substantive or procedural. Coleman,

501 U.S. at 729; see also, e.g., Webb, 451 U.S. at 498 n.4

(recognizing that an independent state procedural ground

could bar consideration of the federal issue). “In the

context of direct review of a state court judgment, the

independent and adequate state ground doctrine is juris-

dictional. Because this Court has no power to review a

state law determination that is sufficient to support the

judgment, resolution of any independent federal ground

for the decision could not affect the judgment and would

therefore be advisory.” Coleman, 501 U.S. at 729."

* In instances where state court decisions are based primarily on

federal law grounds or are interwoven with federal and state grounds,

the Court has employed a presumption that there is not a state law

basis for the decision unless the state’s highest court provides a “plain

statement” that its decision was grounded on state law. Michigan v.

Long, 463 U.S. 1032, 1040-41 (1983). However, this presumption is not

applicable in every case and is not applicable in this case: “li]n those

(Continued on following page)

In addition to the statute of limitations argument,

Respondents rested their summary judgment motion on

three state law substantive grounds, and Alabama law

permitted the Supreme Court of Alabama to affirm the

summary judgment on any of the grounds presented. On

appeal from a summary judgment, the Supreme Court of

Alabama performs a de novo review. E.g., DeVenney v. Hill,

918 So. 2d 106, 112 (Ala. 2005); Mobile Airport Auth. v.

HealthStrategies, Inc., 886 So. 2d 773, 779 (Ala. 2004).

Accordingly, there is no presumption of correctness given

to the trial court on any question of law. E.g., Laster, Jr. ex

rel. Laster, Sr. v. Norfolk Ry. Co., Inc., 2007 WL 30073, at

*2 (Ala. 2007). As such, the Supreme Court of Alabama’s

decision could have rested on any of these state law

grounds, each of which was independently adequate to

support summary judgment in favor of Respondents. Since

the summary judgment was affirmed without opinion, and

since that affirmance likely was based in whole or in part

on state substantive grounds,” the Court should adhere to

Coleman and deny the petition.

cases in which it does not fairly appear that the state court rested its

decision primarily on federal grounds, it is simply not true that the

‘most reasonable explanation’ is that the state judgment rested on

federal grounds.” Coleman, 501 U.S. at 737; see also Harris v. Reed, 489

U.S. 255, 263 n.9 (1989) (“[The Long rule] necessarily applies only when

a state court has been presented with the federal claim... ”); Long, 463

U.S. at 1040 (“[wlhen, as in this case, a state court decision fairly

appears to rest primarily on federal law, or to be interwoven with the

federal law... ”).

* The Committee Comments to Rule 53 of the Alabama Rules of

Civil Procedure suggest that a no-opinion affirmance is not appropriate

in a case in which the court has been called upon “to ihe a

provision of a constitution,” so the no-opinion affirmance in this case

suggests that the Supreme Court of Alabama did not believe that the

constitutional issue was before the Court. See Ala. R. Civ. P. 53 comm.

cmts.

Wl. THERE IS NO COMPELLING REASON FOR

THIS COURT TO EXERCISE ITS DISCRETION

TO REVIEW THIS CASE.

Even if this Court concludes that it has jurisdiction to

review the no opinion affirmance of the Supreme Court of

Alabama, the Court should nevertheless refuse to grant

discretionary review for all or any of the reasons set forth

below.

A. Decedent was not deprived of his cause of

action.

In 1987, when decedent was last exposed to benzene

claimed to have been supplied by Respondents, Alabama

law authorized him to pursue a claim against Respondents

at any time within the two year period following the date

on which he was last exposed. American Mut. Liab. Ins.

Co. v. Phillips, 491 So. 2d 904, 906 (Ala. 1986); Tyson v.

Johns-Manville Sales Corp., 399 So. 2d 263, 268 (Ala.

1981); Garrett v. Raytheon Co., Inc., 368 So. 2d 516 (Ala.

1979)." That was so because, at that time, Alabama law

recognized that a cause of action accrued as soon as the

claimant was entitled to maintain an action thereon,

regardless of whether the full amount or extent of dam-

ages was apparent at the time of the first legal injury.

Langley v. Mut. Fire, Marine and Inland Ins. Co., 512

So. 2d 752, 764-65 (Ala. 1987); Armstrong v. Life Ins. Co. of

Virginia, 454 So. 2d 1377, 1379 (Ala. 1984); Garrett v.

Raytheon Co., Inc., 368 So. 2d 516, 519 (Ala. 1979); Home

" The last date of exposure rule announced in Garrett has been

repeatedly reaffirmed by the Supreme Court of Alabama. See Becton v.

Rhone-Poulenc, Inc., 706 So. 2d 1134, 1135-36 (Ala. 1997); Johnson v.

Garlock, Inc., 682 So. 2d 25, 28 (Ala. 1996) (holding that date of last

exposure rule did not violate state or federal constitutional rights);

Hubbard v. Liberty Mut. Ins. Co., 599 So. 2d 20, 22 (Ala. 1992); Hillis v.

Rentokil, Inc., 596 So. 2d 888, 890 (Ala. 1992).

Ins. Co. v. Stuart-McCorkle, Inc., 285 So. 2d 468, 473 (Ala.

1973).

Decedent did not file a lawsuit against Respondents

during that statutorily permitted period. Had he done so,

he would have had the benefit of the Garrett decision,

wherein the Supreme Court of Alabama held that “in the

instant case the damage must have occurred at the time of

exposure else defendant would not be liable,” and that

“(t]he injury in this case occurred on the date or dates of

exposure.” Garrett, 368 So. 2d at 520. Indeed, the Garrett

court went on to specifically state that: “[t]his is not a case

where an injury did not occur until it made itself manifest

by its symptoms.” /d. at 520-21. Thus, if decedent had filed

a timely action against Respondents, he could have liti-

gated his claim that Respondents supplied benzene prod-

ucts to his employer that were defective and unreasonably

dangerous and that he was exposed to unhealthy levels of

such products.

In an effort to create a federal constitutional issue

that would permit review by this Court, Petitioner now

argues that a decision” rendered by the Supreme Court of

Alabama twelve years after the statute of limitations

expired on her decedent’s personal injury claim unconsti-

tutionally deprived him of his cause of action. If the

claimed inconsistencies between the decisions in Garrett

and Hinton do in fact create or threaten a constitutional

deprivation, judicial review of that claimed deprivation

must await a plaintiff who has filed a timely action that

has been dismissed for want of a manifest present injury.

Decedent was not such a plaintiff.

" Hinton v. Monsanto Co., 813 So. 2d 827 (Ala. 2001), was decided

on September 14, 2001.

18 f

B. There is no substantial federal question pre-

sented.

There is no question but that if the Alabama Legisla-

ture had amended the two year statute of limitations for

tort actions while decedent had an existing right to pursue

a cause of action against Respondents, and did not in

connection therewith provide him reasonable time to

pursue that cause of action, such amendment would have

violated decedent’s due process rights, as explained in

Terry v. Anderson, 95 U.S. 628, 633 (1877). But this is not

such a case.

Instead, decedent had-a full two years in which to

pursue his cause-of action against Respondents, and he

failed to do so. Under the prior decisions of this Court,

decedent was thereby afforded the process to which he was

constitutionally due. Terry, 95 U.S. at 632-33 (“This court

has often decided that statutes of limitation affecting an

existing right are not unconstitutional, if a reasonable

time is given for the commencement of an action before the

bar takes effect.”). The 2001 Hinton decision simply does

not implicate decedent’s federal due process rights.

While this Court has never squarely decided whether

a statute of limitations enacted by a state legislature may

constitutionally bar pursuit of a personal injury action

before the plaintiff discovers that he or she has suffered an

injury, the Court has passed on the opportunity to decide

that specific question on at least seven occasions.

In Woodward v. Burnham City Hospital, 449 U.S. 807

(1980), the Court dismissed for want of a substantial

federal question” an appeal of a decision of the Supreme

‘* Summary disposition by this Court of an appeal for want of a

substantial federal question is a disposition on the merits of the case.

Hicks v. Miranda, 422 U.S. 332, 344 (1975); Ohio ex rel. Eaton v. Price,

360 U.S. 246, 247 (1959). _

Court of Illinois in which that court found no due process

violation from legislative action “establishing the 4-year

outer limit within which to file a complaint for medical

malpractice.” See Anderson v. Wagner, 402 N.E.2d 560, 568

(Ill. 1979).

In Ellerbe v. Otis Elevator Co., 459 U.S. 802, reh.

denied, 459 U.S. 1059 (1982), the Court similarly dis-

missed for want of a substantial federal question the

appeal of a decision of the Texas Court of Civil Appeals

holding that due process was not violated by a statute that

barred suits against licensed engineers or architects for

damages arising out of unsafe conditions of real property,

where the relevant improvements to the property were

completed more than ten years before the date the lawsuit

was filed. See Ellerbe v. Otis Elevator Co., 618 S.W.2d 870,

873 (Tex. Civ. App. 1981).

In Bunker v. Natl Gypsum Co., 460 U.S. 1076 (1983),

the court dismissed for want of a substantial federal

question an appeal of a decision of the Supreme Court of

Indiana, which held that Indiana’s three year statute of

limitations for asbestos exposure claims, which com-

menced to run on the last date of exposure, did not violate

plaintiff’s due process rights. See Bunker v. Nat'l Gypsum

Co., 441 N.E.2d 8, 13-14 (Ind. 1982).

On four other occasions, this Court has denied peti-

tions for writs of certiorari in cases in which it would have

been necessary to address the question presented in this

petition. Clark v. Gulesian,“ 400 U.S. 993 (1971); Pitts v.

“ The First Circuit decision upheld Maine’s medical malpractice

statute of limitations, which began to run at the time of the wrongful

act, finding that it was not an unconstitutional denial of equal protec-

tion or due process despite the fact that, in some cases, by the time the

plaintiff learned of the injury, the cause of action would be barred.

Clark v. Gulesian, 429 F.2d 405, 406 (lst Cir. 1970) (“Unfortunate as

the present result may be for the plaintiff, the state may reasonably

recognize that a defendant has an interest in repose, and in the

(Continued on following page)

GAF Corp.," 464 U.S. 1003 (1983); Wayne v. Tennessee

Valley Auth.,” 469 U.S. 1159 (1985); Griffin v. Ford Motor

Co.,” 488 U.S. 822 (1988).

Accordingly, this Court has not traditionally believed

that the question presented by Petitioner herein is a

substantial federal question that requires the Court’s

attention and review.

C. None of the considerations set out in Su-

preme Court Rule 10 is present in this case.

Supreme Court Rule 10 identifies certain considera-

tions that bear upon whether the Court should exercise its

discretion to review a matter presented on a certiorari

petition. Those considerations do not suggest that discre-

tionary review is appropriate in this case.

avoidance of stale claims, however free from fault the claimant’s delay

may be. Such a conclusion does not deprive the plaintiff of any constitu-

tional right to fair or equal treatment.”).

** The Seventh Circuit upheld Indiana’s ten year statute of repose

for product liability actions, which barred plaintiff’s wrongful death

action. See Pitts v. Unarco Indus., Inc. , 712 F.2d 276, 279 (7th Cir. 1983)

(“we cannot accept plaintiff’s argument that the Indiana Product

Liability Act’s ten-year statute of repose violates due process under the

federal and Indiana Constitutions.”).

* The Fifth Circuit decision upheld Tennessee’s ten year statute of

repose for product liability actions, which statute as adopted and

applied resulted in some causes of action being barred before they

accrued. Wayne v. Tennessee Valley Auth., 730 F.2d 392, 404 (5th Cir.

1984). -

" The underlying Eleventh Circuit decision in Eddings v. Volks-

wagenwerk, A.G., 835 F.2d 1369 (11th Cir. 1988), upheld Florida’s

twelve year statute of repose for product liability actions, specifically

holding that “Appellant’s facial attack on the constitutionality of the

Florida statute of repose is without merit. The United States Supreme

Court, in cases raising the constitutionality of similar statutes, has

found no violation of the Fourteenth Amendment.” /d. at 1373.

1. There is no conflict between the no opin-

ion affirmance of the Supreme Court of

Alabama and the decision of any other

state court of last resort or any United

States court of appeal.

(a) State decisions.

Petitioner devotes six pages of her petition to the

argument that the decision of the Supreme Court of

Alabama conflicts with “numerous contrary decisions of

other state courts of last resort.” Pet. at 16-21. Yet one

searches Petitioner’s citations in vain for a state court

decision holding that a date of last exposure accrual rule

violates a party’s due process rights. Instead, the decisions

cited by Petitioner appear to be simple reaffirmations of

. this Court’s holding in Terry v. Anderson that the enact-

ment of a statute of limitations that does not provide a

reasonable time for a party having a then-existing cause of

action to pursue an action is unconstitutional. Alabama

law, as noted above, provided decedent with a two year

period following his last exposure in which to pursue an

exposure-related cause of action, and that period was not

modified. Since this is not a case in which the Alabama

Legislature enacted a statute that retroactively reduced or

eliminated the period available to decedent to pursue a

cause of action, the Terry line of cases discussed at pages

18 through 21 of the petition are inapposite.

The truly instructive state court decisions in this

regard that are mentioned in the petition are Bunke, v.

Nat'l Gypsum Co., 441 N.E.2d 8 (Ind. 1982), cert. denied,

460 U.S. 1076 (1983), Owen v. Wilson, 537 S.W.2d 543

(Ark. 1976), and Laughlin v. Forgrave, 432 S.W.2d 308

(Mo. 1968). The Bunker court held that Indiana’s three

year statute of limitations for asbestos exposure claims,

which commenced to run on the last date of exposure, did

not violate plaintiff’s due process rights. Bunker, 441 N.E.

2d at 13-14. The courts in Owen and Laughlin upheld the

Arkansas and Missouri medical malpractice statutes of

limitation, despite the fact that each ran from the time of

the wrongful act and therefore could bar medical malprac-

tice claims that were not timely discovered. Owen, 537

S.W.2d at 545; Laughlin, 432 S.W.2d at 314-15."

The proper entity to address the harsh effect of a

statute is the state legislature. In response to the decisions

in Bunker, Owen and Laughlin, state legislatures took

action to address the claimed inequity in their respective

statutory schemes. Such legislative action is precisely

what the Supreme Court of Alabama advocated in Garrett,

368 So. 2d at 521. When the Alabama Legislature took

such action, however, it did not do so properly, and, after

the Act it passed was declared unconstitutional in 1982, it

has not again enacted such legislation.”

Contrary to Petitioner’s argument, no state court has

yet recognized a constitutional right to a discovery rule

applicable to all toxic tort claims. Therefore, the no opinion

affirmance by the Supreme Court of Alabama is not in

conflict with the decision of any other state court of last

resort.

* Courts in Delaware and Arizona have likewise concluded that no

due process violation occurs when the effect of a statute of limitations is

to bar a cause of action before the injury occurs or is discovered. Dunn

v. Felt, 379 A.2d 1140 (Del. Super. 1977) (three year medica} malprac-

tice statute of limitations); Landgraff v. Wagner, 546 P.2d 26, 31-32

(Ariz. App. 1976) (“we do not agree that due process demands aware-

ness of the night of action before the statute of limitations will run

against it.”).

’* A bill (SB205) is currently pending in the Judiciary Committee of

the Alabama State Senate that would adopt a discovery accrual rule for

toxic tort actions. Similar legislation has been proposed but not adopted

in the last two legislative sessions.

(b) Federal decisions.

Petitioner’s arguments over pages 22 through 26 of

her petition that the no opinion affirmance of the Supreme

Court of Alabama also conflicts with decisions of various

United States courts of appeal and that the opinions of

such courts of appeal are also in conflict with each other,

are likewise without merit. Petitioner failed to identify

any federal court of appeals decision that has ever held

unconstitutional a state toxic tort statute of limitations

that runs from the date of last exposure. Instead, Peti-

tioner relies on Terry and its progeny, which require states

amending their statutes of limitation to provide a reason-

able time within which a cause of action may be pursued

after it has accrued. Pet. at 22-26. This is clearly mis-

placed reliance, for the Terry line of cases does not address

whether a date of last exposure rule violates the Due

Process Clause.

The four federal cases that Petitioner cites for the

proposition that “a state may not constitutionally elimi-

nate a cause of action without giving a litigant a reason-

able amount of time to file suit” each involved a situation

in which a state legislature enacted a law that eliminated

or substantially reduced the period within which a party

could pursue an existing cause of action. Pet. at 22-23.

Since the instant case does not involve any claim that

decedent’s existing rights were barred by legislative

action, these federal decisions cannot be said to be in

conflict with the decisions sought to be reviewed here.

Moreover, those four cited federal decisions do not, as

Petitioner contends, conflict with the four other United

States court of appeals opinions cited and discussed by

_ Petitioner at pages 23 and 24 of her petition. None of the

latter decisions involved a situation in which a state

legislature had enacted a law that eliminated or substan-

tially reduced the period within which an existing cause

of action could be filed. To the contrary - and entirely

consistent with the Alabama law under attack in the

petition in this case — each of those latter decisions held

that a state may constitutionally enact and enforce a

statute of limitations even where its application may in

some cases bar the filing of the cause of action before the

plaintiff becomes aware of the existence of the cause of

action. The Third Circuit decision in Ciccarelli v. Carey

Canadian Mines, Lid., 757 F.2d 548, 555 (3rd Cir. 1986),

provides a reasoned analysis of why such statutes of

limitations do not violate the Due Process Clause:

Because statutory periods are in some sense ar-

bitrary, the period to initiate suit occasionally

expires before a claimant has sustained any in-

jury ... or before the claimant knows he has sus-

tained an injury.... Such a statute does not

violate due process if the limitation period is oth-

erwise reasonable.... Plaintiff’s due process

claim must therefore fail because here the period

is reasonable.

Id. at 558 (citations omitted). Based upon this reasoning,

the court upheld Pennsylvania’s wrongful death and

survival statutes of limitation in the face of an argument

that the court should have instead judicially adopted a

“discovery rule.”

The four decisions cited by Petitioner as consistent

with the no opinion affirmance decision of the Supreme

Court of Alabama in this case were from the Third, Sev-

enth, and Eighth Circuits. There are consistent decisions

from the First, Second, Sixth, Ninth, and Tenth Circuits as

well. See Clark v. Gulesian, 429 F.2d 405, 406 (1st Cir.

1970), cert. denied, 400 U.S. 993 (1971); Dincher v. Marlin

Fire Arms Co., 198 F.2d 821, 822-23 (2nd Cir. 1952) (up-

holding Connecticut statute that barred negligence claims

filed more that one year from date of wrongful act, no

matter when injury occurred); Mathis v. Eli Lilly & Co.,

719 F.2d 134, 139-41 (6th Cir. 1983) (upholding constitu-

tionality of Texas statute limiting period within which

product liability action may be filed, even though statute

would bar some claims before an injury occurred); Pittman

uv. United States, 341 F.2d 739, 741 (9th Cir. 1965) (uphold-

ing constitutionality of two year statute of limitations for

Federal Tort Claims Act action even as to minors who were

unable to pursue their claims without appointment of a

guardian ad litem); Brubaker v. Cavanaugh, 741 F.2d 318,

320-21 (10th Cir. 1984) (rejecting due process challenge to

Kansas medical malpractice statute of limitations that

barred suits commenced more than four years after wrong-

ful act).

The foregoing decisions are consistent as well with

decisions from seven different United States courts of

appeal rejecting federal constitutional challenges to state

statutes of repose. See Dinh v. Rust Int'l Corp., 974 F.2d

500, 502 (4th Cir. 1992) (upholding Virginia statute of

repose applicable to injuries caused by improvements to

real property); Harris v. Black Clawson Co., 961 F.2d 547,

554-55 (5th Cir 1992) (upholding Louisiana’s ten year

statute of repose for defective design or construction

claims); Wayne v. Tennessee Valley Auth., 730 F.2d 392, 404 ©

(5th Cir. 1984), cert. denied, 469 U.S. 1159 (1985); Hart-

ford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower

& Clancy, 740 F.2d 1362, 1367-68 (6th Cir. 1984) (uphold-

ing Ohio’s ten year statute of repose for actions arising out

of improper design or construction of improvements to real

property); Van Den Hul v. Baltic Farmers Elevator Co., 716

F.2d 504, 510-12 (8th Cir. 1982) (upholding South Dakota’s

six year statute of repose for product liability actions);

Lourdes High School v. Sheffield Brick & Tile Co., 870 F.2d

443, 446 (8th Cir. 1989) (upholding Minnesota’s fifteen

year statute of repose for actions based upon real property

damage); Norwest Bank v. W.R. Grace & Co., 960 F.2d 754,

756-58 (8th Cir. 1998) (rejecting equal protection challenge

to Nebraska’s ten year statute of repose for product liabil-

ity actions); Branson v. O.F. Mossberg & Sons, Inc., 221

F.3d 1064, 1065 (8th Cir. 2000) (upholding lowa’s fifteen

year statute of repose for product liability actions); Fields

v. Legacy Health System, 413 F. 3d 943, 956-57 (9th Cir.

2005) (upholding Oregon’s five year statute of repose for

medica] malpractice actions); Eaton v. Jarvis Prods. Corp.,

965 F.2d 922, 931 n.10 (10th Cir. 1992) (upholding Colo-

rado’s seven year statute of repose for certain product

liability actions); Alexander v. Beech Aircraft Corp., 952

F.2d 1215 (10th Cir. 1991) (upholding Indiana’s ten year

statute of repose for product liability actions); Eddings v.

Volkswagenwerk, A.G., 835 F.2d 1369, 1373-74 (11th Cir.),

cert. denied sub nom. Griffin v. Ford Motor Co., 488 U.S.

822 (1988). These decisions are significant because stat-

utes of repose are much more likely than are statutes of

limitation to bar an action before it accrues or before an

injured party has become aware of its existence, yet such

statutes have been consistently upheld as constitutional

despite creating or causing the very type of deprivation

challenged in this petition.

There is no conflict between the no opinion affirmance

of the Supreme Court of Alabama and the decisions of any

United States court of appeals. Nor is there any conflict to

be resolved between the decisions of the federal courts of

appeal themselves. Therefore, there is no reason based on

conflicting decisions for this Court to exercise its discretion

to review this matter.

2. The no opinion affirmance of the Su-

preme Court of Alabama did not decide

an important question of federal law

that has not been decided by this Court.

As discussed above in Section II.B., this Court has

repeatedly suggested that the question presented here is not

an important or substantial question of federal law, by

denying petitions for certiorari raising the same or similar

issue on four separate occasions, and by dismissing three

other appeals raising the same or similar issues for want of a

substantial federal question. If it is assumed arguendo that

the Supreme Court of Alabama did “decide” the due process

issue against Petitioner’s decedent, it is nevertheless clear

that this Court does not consider the question presented in

this petition to be an important question of federal law.

3. The no opinion affirmance of the Su-

preme Court of Alabama was not decided

in a way that conflicts with relevant deci-

sions of this Court.

As is discussed above, the Court has on no less than

three occasions dismissed appeals raising similar claims

for want of a substantial federal question. Bunker, 460

U.S. 1076; Ellerbe, 459 U.S. 802, reh. denied, 459 US.

1059; Woodward, 449 U.S. 807. Those decisions amount to

dispositions on the merits. The no opinion affirmance

issued by the Supreme Court of Alabama, as characterized

by Petitioner, is entirely consistent with those decisions.

If it is assumed arguendo that the Supreme Court of

Alabama actually “decided” that no due process violation

exists in the application of the date of last exposure rule for

statute of limitations analysis in Alabama toxic tort cases,

such decision does not conflict with any prior decision of

this Court. The Court has recognized the importance of

statutes of limitations and the role that they play:

Statutes of limitation are not simply technicali-

ties. On the contrary, they have long been re-

spected as fundamental to a well-ordered judicial

system. ... there comes a point in time at which

the delay of a plaintiff in asserting a claim is suf-

ficiently likely either to impair the accuracy of

the fact finding process or to upset settled expec-

tations that a substantive claim will be barred

- without respect to whether it is meritorious.

Board of Regents of University of State of New York uv.

Tomanio, 446 U.S. 478, 487 (1980). In addition, the Court

has recognized that “the Constitution does not forbid the

creation of new rights, or the abolition of old ones recog-

nized by the common law, to attain a permissible legisla-

tive object.” Silver v. Silver, 280 U.S. 117, 122 (1929).

Furthermore, and perhaps most significant to this case,

the Court has recognized that “[a] person has no property,

no vested interest, in any rule of the common law.” Munn

v. Illinois, 94 U.S. 113, 134 (1877).

Therefore, a state court decision holding that no due

process violation occurs when a state provides two years

from the date of last exposure in which to file an exposure-

related action, rather than two years from the date of

discovery of an exposure-related injury, does not conflict

with relevant decisions of this Court.

D. There is no manifest injustice resulting

from the decision of the Supreme Court of

Alabama.

Petitioner invokes “manifest injustice” as an addi-

tional claimed basis upon which discretionary review

ought to be permitted in this case, portraying her decedent

as a victim of what she describes as “perverse rules

adopted by the Alabama Supreme Court.” Pet. at 26-30.

Yet decedent was no more a victim of the rules obtaining

in Alabama than plaintiffs in other jurisdictions have been

when they have found their causes of action barred by the

time that they have been injured or by the time that they

have discovered that they have been injured.

The loss of a cause of action to a statute of limitations

is not manifest injustice, because “[s]tatutes of limita-

tions.... are statutes of repose.... [that] protect defen-

dants and the courts from having to deal with cases in

which the search for truth may be seriously impaired by

the loss of evidence, whether by death or disappearance of

witnesses, fading memories, disappearance of documents,

or otherwise.” United States v. Kubrick, 444 U.S. 111, 117

(1979). Indeed, in this case, when decedent sought to

litigate the propriety of certain claimed exposures to

benzene that had ceased fourteen years earlier, the plant

at which the exposures were claimed to have occurred had

closed, no records remained to reveal what products had

been supplied to or used by decedent, and decedent him-

self had reported to his treating physician that the sub-

stance to which he was exposed was xylene, not benzene.

The loss of a cause of action in such circumstances is

harsh but not unconstitutional:

While the statutes are harsh, we cannot agree

that they deny due process or equal protection or

that they invalidly deprive one of access to the

courts in light of policy reasons for the statutes

such as avoiding the risk and costs of litigation to

manufacturers after a lengthy passage of time.

Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1225

(10th Cir. 1991). Such statutes promote justice, not injus-

tice. Order of R.R. Telegraphers v. Ry. Exp. Agency, 321

U.S. 342, 348-49 (1944). There is no manifest injustice in

the refusal of the Supreme Court of Alabama to judicially

engraft a discovery rule” onto Alabama’s two year statute

of limitations so as to permit Petitioner to litigate the

propriety of her decedent’s long ago exposures.

” The Supreme Court of Alabama has specifically refused to

judicially adopt such a discovery accrual! rule on at least seven occa-

sions since 1979. See Boyce v. Cassese, 941 So. 2d 932, 946 n.2 (Ala.

2006); Payton v. Monsanto Co., 802 So. 2d 829, 835 (Ala. 2001); Travis v.

Ziter, 681 So. 2d 1348, 1354 (Ala. 1996); American Mut. Liab. Ins. Co. v.

Phillips, 491 So. 2d 904, 906 (Ala. 1986); Moon v. Harco Drugs, Inc., 435

So. 2d 218, 220 (Ala. 1983); Ramey v. Guyton, 394 So. 2d 2, 4 (Ala.

1980); Garrett v. Raytheon Corp., Inc., 368 So. 2d 516, 521 (Ala. 1979).

CONCLUSION

For all of the foregoing reasons, Respondents respect-

fully request that this Honorable Court deny the petition.

Respectfully submitted,

GEORGE M. WALKER

Counsel of Record

HAND ARENDALL, L.L.C.

3000 AmSouth Bank Building

Post Office Box 123

Mobile, Alabama 36601

Phone: (251) 432-5511

Fax: (251) 694-6375

Louis C. WOOLF

WooLr, MCLANE, BRIGHT,

ALLEN & CARPENTER

Post Office Box 900

Knoxville, Tennessee 37901-0900

Phone: (615) 215-1000

Attorneys for Respondents

Ashland, Inc.;

Chevron Phillips Chemical LP.

successor in interest to Chevron

Chemical Company, LLC;

and Exxon Mobil Corporation

- App. 1

IN THE CIRCUIT COURT FOR JEFFERSON COUNTY

OF THE

STATE OF ALABAMA

BESSEMER DIVISION

JACK CLINE,

Plaintiff,

vs.

ASHLAND, INC., BP AMOCO

CHEMICAL COMPANY, INC.,

BP AMOCO CORPORATION,

CHEVRON CHEMICAL

COMPANY, EXXON MOBIL

CORPORATION, HOLMES

OIL COMPANY, INC., and

THOMPSON & FORMBY

COMPANY, AND FICTITIOUS

DEFENDANTS WHOSE

NAMES ARE UNKNOWN

AT THIS TIME BUT WHOSE

NAMES WILL BE SUPPLIED

BY AMENDMENT WHEN

KNOWN, AS DESCRIBED IN

ATTACHMENT A HERETO,

Defendants.

CIVIL ACTION NO.

i a

COMPLAINT

(Filed Apr. 6, 2001)

Comes now, Jack Cline, and show unto this Honorable

Court as follows:

App. 2 .

BACKGROUND FACTS

1. Beginning in the late 1950’s and continuing until

recently, Jack Cline, (hereinafter~“Plaintiff”), was em-

ployed at the railroad wheel manufacturing plant owned

and operated by Griffin Wheel Company and located in the

Bessemer Division of Jefferson County and also self-

employed as a carpenter in Jefferson County and else-

where within the State of Alabama. During the course of

his career as a chemist and carpenter, Plaintiff worked in

various locations (hereinafter the “Exposure Sites”) where

he came into contact with and was exposed to chemical

solvents and other chemical products.

2. As a result of his work-related exposure to chemi-

cal solvents and other materials manufactured by Defen-

dants, Plaintiff contracted Acute Myelogenous Leukemia.

3. The defendants herein are companies identified as

having produced, manufactured, distributed, sold and/or

_ specified chemical solvents and other chemical products

and materials to which Plaintiff was exposed during his

employment (the “Defendants”).

4. The Defendants in this complaint and which are

included in-any - reference to “Defendants” herein are as

follows:

(a) Ashland, Inc., a Kentucky corporation,

with principal place of business located at 1409

Winchester Avenue, Ashland, Kentucky;

(b) BP Amoco Chemical Company, a Dela-

ware corporation, with principal place of busi-

ness located at 511 South Boston Avenue, Tulsa,

Oklahoma;

App. 3

poration, with principal place of business located

in Indianapolis, Indiana;

(d) Chevron Chemical Company, a Dela-

ware corporation; with principal place of busi-

ness located in Richmond, California;

(e) Exxon Mobil Corporation, a New Jersey

corporation, with principal place of business lo-

cated in Irving, Texas;

(f) Holmes Oil Company, an Alabama cor-

poration, with principal place of business located

in Bessemer, Alabama;

(g) Thompson & Formby, Inc., a Florida

corporation, with principal place of business lo-

cated at 825 Crossover Lane, Memphis, Tennes-

see, and

(h) Fictitious parties described in Attach-

ment A.

Count One

5. Plaintiffs’ initial cause of action is grounded in the

Alabama Extended Manufacturer’s Liability Doctrine and

is stated against the Defendants and fictitious parties in

this Complaint.

6. The chemical products and materials produced,

manufactured, distributed, sold and/or specified by the

Defendants and used in or applied at the Exposure Sites

were unreasonably dangerous when applied to their

intended use in the usual] and customary manner, and the

Defendants caused the unreasonably dangerous materials

and products to enter the market, as a result of which

App. 4

Plaintiff was exposed to dangerous chemicals and thereby

suffered grave and progressive bodily injuries.

7. The chemical products and materials produced,

manufactured, distributed, sold and/or specified by the

Defendants and used in or applied at the Exposure Sites

were unreasonably dangerous when applied to their

intended use in the usual and customary manner in that

(a) the chemicals contained in such products and materials

are highly carcinogenic and otherwise injurious to the

tissue of the human body when inhaled into the respira-

tory system or ingested into the digestive system and (b)

the chemicals contained in such products and materials

are known to create or release toxic fumes, which are

subject to being readily inhaled or ingested into the

respiratory and digestive systems of persons in the vicinity

thereof.

8. The Defendants knew or should have known in

the exercise of ordinary care and diligence that such

products and materials were unreasonably dangerous;

nonetheless, the Defendants made no effort to recall their

products and materials from any plants, buildings, or

machinery, including particularly the locations where

Plaintiff was employed. In addition, the Defendants failed

to warn the Plaintiff and others similarly situated of the

facts concerning the unreasonably dangerous nature of the

products and materials which they placed into the stream

of commerce. The Defendants thus caused Plaintiff-to be

exposed to their hazardous chemical products and materi-

als without warning of the dangers thereof or taking

preventative measures to protect the Plaintiff from expo-

sure, aS a proximate result of which the Plaintiff was

exposed to said products and suffered grave and progres-

sive bodily injury.

App. 5

Count Two

9. Plaintiff adopts and realleges, as if fully set forth

herein, the factual and other averments as set forth above.

10. Defendants produced, manufactured, distributed,

and sold chemical products and materials which were used

or installed in or applied to the Exposure Sites where

Plaintiff was employed.

11. The Defendants impliedly warranted that said

chemical products and materials were fit for their in-

tended uses and further warranted that said chemical

products and materials were merchantable.

12. The chemical products and materials produced,

manufactured, distributed, and/or sold by the Defendants

and used or installed in or applied to the Exposure Sites

were unreasonably dangerous as applied to their intended

use. Therefore, the Defendants breached their implied

warranties in that the chemical products and materials

are highly carcinogenic and otherwise injurious to the

tissue of the human body when inhaled into the respira-

tory system or ingested into the digestive system, etc.

13. The chemical products and materials distributed

by Defendants were not fit for use for their intended

purpose; rather, they were unsafe, unfit, and unusable for

their intended purposes. The condition of the Defendants’

products constituted a breach of Defendants’ implied

warranty of fitness for a particular purpose and merchan-

tibility. As a result of the Defendants’ breach of their

implied warranties, the Plaintiff suffered grave and

progressive bodily injuries associated with Acute Myeloge-

nous Leukemia, resulting in pain and suffering, medical

expenses and other damages.

App. 6

WHEREFORE, PREMISES CONSIDERED, Plain-

tiff hereby demands judgment against the defendants with

respect to the foregoing Counts hereof in an amount the

jury may assess as just, together with such other and

further relief as the Court deems proper.

/s/ Mark Rowe

Mark L. Rowe

One of the Attorneys for Plaintiffs

OF COUNSEL:

Environmental Attorneys Group, L.L.C.

3529 Seventh Avenue South

Birmingham, AL 35222

(205) 326-1000

PLAINTIFFS’ ADDRESS:

c/o 3529 Seventh Avenue South

Birmingham, Alabama 35222

JURY DEMAND

Plaintiffs demand a trial by struck jury on all issues.

/s/ Mark Rowe

Of Counsel

ATTACHMENT A

The fictitious parties referred to in the Complaint to

which this Attachment A is attached are, whether singu-

lar or plural, those persons or entities (or that person or

entity) who or which are described as follows: Nos. 1

through 10, who or which constructed, manufactured, or

produced any hazardous chemical product to which the

App. 7

Plaintiff was exposed; Nos. 11-20, who or which formu-

lated, manufactured or produced any hazardous chemical

product substantially identical to and indistinguishable

from any hazardous chemical product to which the Plain-

tiff was exposed; Nos. 21-30, who or which refined, formu-

lated, manufactured or produced any chemical compound

or component which was included in the products and

materials produced by the persons or entities referred to

as Nos. 1 through 10 or 11 through 20 above; Nos. 31-40,

who or which distributed, installed or applied (or specified

the installation or application of) the products and mate-

rials refined, formulated, manufactured or produced by the

persons or entities referred to as Nos. 1 through 10, 11-20,

or 21-30 above; Nos. 41-50, who or which occupied, con-

trolled and/or owned Exposure Sites on the premises of

which Plaintiff worked; Nos. 51-60, who or which are the

alter egos of, predecessors of, successors in interest to or

mere continuations of (including any trust or other entity

established pursuant to order of any bankruptcy court for

the benefit of chemical exposure victims), or entities

controlled as mere instrumentalities of, the persons or

entities described as Nos. 1 through 60 above; and Nos. 61-

70, who or which control or controlled the persons or

entities described as Nos. 1 through 60 above as adjuncts

or mere instrumentalities.

App. 8

IN THE CIRCUIT COURT. FOR

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE,

Plaintiff,

vs.

ASHLAND INC,; BP AMOCO

CHEMICAL COMPANY, INC;

BP AMOCO CORPORATION;

CHEVRON CHEMICAL

COMPANY; EXXON MOBIL

CORPORATION; et al.,

Defendants.

CIVIL ACTION NO.

CV-2001-423

Pr COP Gr “OP COP? LP WP GOP (OP OP Or Gr

ANSWER

Defendants Ashland, Inc., and Exxon Mobil Corpora-

tion, answer plaintiffs Complaint as follows:

* * *

FIFTH AFFIRMATIVE DEFENSE

For further answer to the Complaint of the plaintiff,

these defendants aver that all of plaintiff's claims are

barred by the applicable statutes of limitation.

/s/ W. Craig Hamilton

GEORGE M. WALKER

W. CRAIG HAMILTON

App. 9

HAND ARENDALL, L.L.C.

3000 AmSouth Bank Building

Post Office Box 123

Mobile, Alabama 36601

Phone: (334) 432-5511

Fax: (334) 694-6375

TRACY R. DAVIS

HAND ARENDALL, L.L.C.

900 Park Place Tower

2001 Park Place North

Birmingham, Alabama 35203

Phone: (205) 324-4400

Fax: (205) 322-1163

LOUIS C. WOOLF

Attorneys for Defendants

Ashland, Inc.

ExxonMobil Corporation

WOOLF, MCLANE, BRIGHT,

ALLEN & CARPENTER

Post Office Box 900

Knoxville, Tennessee 37901-0900

Phone: (865) 215-1000

Fax: (865) 215-1015

CERTIFICATE OF SERVICE

I hereby certify that I have on this day, May 23, 2001,

served a copy of the foregoing pleading on the following

listed counsel of record by mailing the same by United

States mail, properly addressed and first class postage

prepaid.

/s/ W.Craig Hamilton

App. 10

COUNSEL OF RECORD:

Mark L. Rowe, Esquire

Environmental Attorneys Group, L.L.C.

3529 Seventh Avenue South

Birmingham, Alabama 35222

Steve A. Tucker, Esquire

Richard E. Davis, Esquire

Cabaniss, Johnston, Gardner, Dumas & O’Neal

Post Office Box 830612

Birmingham, Alabama 35283-0612

————_—-

App. 11

IN THE CIRCUIT COURT FOR

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, §

Plaintiff, .

vs. § CIVIL ACTION NO.

ASHLAND INC,; BP AMOCO CV-2001-423

CHEMICAL COMPANY, INC;

BP AMOCO CORPORATION; § ——

CHEVRON CHEMICAL §

COMPANY: EXXON MOBIL §&

CORPORATION: et al., ;

Defendants. §

MOTION FOR SUMMARY JUDGMENT OF

DEFENDANTS ASHLAND, INC., CHEVRON

PHILLIPS CHEMICAL LP, SUCCESSOR IN

INTEREST TO CHEVRON CHEMICAL COMPANY,

LLC, AND EXXON MOBIL CORPORATION

Defendants Ashland, Inc., Chevron Phillips Chemical

LP, successor in interest to Chevron Chemical Company,

LLC, and Exxon Mobil Corporation, move the Court,

pursuant to Rule 56 of the Alabama Rules of Civil Proce-

dure, for entry of summary judgment in their favor in this

matter. In support of this motion, defendants aver that

there is no material issue of disputed fact, and that they

are each entitled to summary judgment as a matter of law.

This motion is based upon the pleadings, the narrative

summary of undisputed facts and brief in support of

motion for summary judgment filed herewith, and the

App. 12

evidentiary submission in support of motion for summary

judgment also filed herewith.

/s/ George M. Walker

GEORGE M. WALKER

HAND ARENDALL, L.L.C.

3000 AmSouth Bank Building

Post Office Box 123

Mobile, Alabama 36601

Phone: (251) 432-5511

Fax: (251) 694-6375

TRACY R. DAVIS

HAND ARENDALL, L.L.C.

900 Park Place Tower

2001 Park Place North

Birmingham, Alabama 35203

Phone: (205) 324-4400

Fax: (205) 322-1163

LOUIS C. WOOLF

M. DENISE MORETZ

Attorneys for Defendants

Ashland, Inc., Chevron Phillips

Chemical LP, successor in

interest to Chevron Chemical

Company, LLC, and Exxon

Mobil Corporation

WOOLF, MCLANE, BRIGHT,

ALLEN & CARPENTER

Post Office Box 900

Knoxville, Tennessee 37901-0900

Phone: (865) 215-1000

Fax: (865) 215-1015

App. 13

Defendants respectfully request oral argument on their

motion

/s/ George M. Walker

CERTIFICATE OF SERVICE

I hereby certify that I have on this day, August 26,

2002, served a copy of the foregoing pleading on the

following listed counsel of record by mailing the same by

United States mail, properly addressed and first class

postage prepaid.

/s/ George M. Walker

COUNSEL OF RECORD:

Mark L. Rowe, Esquire

Environmental Attorneys Group, L.L.C.

Homewood Executive Center, Suite 107

1900 28th Avenue South

Birmingham, Alabama 35209

Richard E. Davis, Esquire

Cabaniss, Johnston

Post Office Box 830612

Birmingham, Alabama 35283-0612

E. Martin Bloom, Esquire

Friedman, Leak & Bloom, P.C.

3800 Colonnade Parkway, Suite 650

Birmingham, Alabama 35243

Rusha C. Smith, Esquire

Bradley, Arant, Rose & White, L.L.P.

One Federal Place

1819 5th Avenue North

Birmingham, Alabama 35203-2104

App. 14

James R. Miller, Esquire

Dickie, McCamey & Chilcote

Two PPG Place, Suite 400

Pittsburg, Pennsylvania 15222-5402

App. 15

__IN THE CIRCUIT COURT FOR

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, §

Plaintiff, ;

ve. § CIVIL ACTION NO.

ASHLAND INC,; BPAMOCO §&§ cy-2001-423

CHEMICAL COMPANY, INC; &§

BP AMOCO CORPORATION; &

CHEVRON CHEMICAL §

COMPANY: EXXON MOBIL &

CORPORATION; et al., ;

Defendants. §

NARRATIVE SUMMARY OF UNDISPUTED

MATERIAL FACTS AND BRIEF IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT ON BEHALF

OF DEFENDANTS ASHLAND, INC., CHEVRON

PHILLIPS CHEMICAL LP, SUCCESSOR IN

INTEREST TO CHEVRON CHEMICAL COMPANY,

LLC, AND EXXON MOBIL CORPORATION

This is a product liability case. Plaintiff, who suffers

from acute myelogenous leukemia, contends that his

disease is the product, in whole or in part, of his exposures

to benzene in the workplace between 1979 and 1987.

Plaintiff did not file his Complaint raising these exposure-

related injury claims until April 6, 2001. Under the cir-

cumstances, plaintiff’s claims against these defendants

are barred as a matter of law by the applicable statutes of

limitations. Moreover, his warranty claim fails to state a

claim for relief permitted under Alabama law. Defendants

Ashland, Inc., Chevron Phillips Chemical LP, successor in

App. 16

interest to Chevron Chemical Company, LLC, and Exxon

Mobile Corporation submit this narrative summary and

brief in support of their Motion for Summary Judgment.

- *

BRIEF IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT

Under Alabama law, a product liability claim arising

out of exposure to chemicals must be filed within two

years after the last such exposure, or within four years of

the tender of delivery of the chemicals. Here, plaintiff

brought suit against these defendants twelve years after

his last claimed exposure to any benzene product supplied

by any of them, six years after his last possible exposure

to any chemicals in the workplace, and fourteen years

after latest possible tender of delivery of the chemical to

which he claims to have been exposed. As discussed below,

plaintiff’s claims against these defendants are therefore

barred as a matter of law.

* * *

CONCLUSION

For the foregoing reasons, the Motion for Summary

Judgment of defendants Ashland, Inc., Chevron Phillips

Chemical LP, successor in interest to Chevron Chemical

Company, LLC, and Exxon Mobil Corporation is due to be

granted as a matter of law.

Respectfully submitted,

/s/ George M. Walker

GEORGE M. WALKER

App. 17

HAND ARENDALL, L.L.C.

3000 AmSouth Bank Building

Post Office Box 123

Mobile, Alabama 36601

Phone: (251) 432-5511

Fax: (251) 694-6375

TRACY R. DAVIS

HAND ARENDALL, L.L.C.

900 Park Place Tower

2001 Park Place North

Birmingham, Alabama 35203

Phone: (205) 324-4400

Fax: (205) 322-1163

LOUIS C. WOOLF

M. DENISE MORETZ

Attorneys for Defendants

Ashland, Inc., Chevron Phil-

lips Chemical LP, successor

in interest to Chevron

Chemical Company, LLC,

and Exxon Mobil Corporation

WOOLF, MCLANE, BRIGHT,

ALLEN & CARPENTER

Post Office Box 900

Knoxville, Tennessee 37901-0900

Phone: (865) 215-1000

Fax: (865) 215-1015

CERTIFICATE OF SERVICE

I hereby certify that I have on this day, August 26,

2002, served a copy of the foregoing pleading on the

following listed counsel of record by mailing the same by

App. 18

United States mail, properly addressed and first class

postage prepaid.

/s/ George M. Walker

COUNSEL OF RECORD:

Mark L. Rowe, Esquire

Environmental Attorneys Group, L.L.C.

Homewood Executive Center, Suite 107

1900 28th Avenue South

Birmingham, Alabama 35209

Richard E. Davis, Esquire

Cabaniss, Johnston

Post Office Box 830612

Birmingham, Alabama 35283-0612

E. Martin Bloom, Esquire

Friedman, Leak & Bloom, P.C.

3800 Colonnade Parkway, Suite 650

Birmingham, Alabama 35243

Rusha C. Smith, Esquire

Bradley, Arant, Rose & White, L.L.P.

One Federal Place

1819 5th Avenue North

Birmingham, Alabama 35203-2104

James R. Miller, Esquire

Dickie, McCamey & Chilcote

Two PPG Place, Suite 400

Pittsburg, Pennsylvania 15222-5402

App. 19

IN THE CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, )

ine

Plaintiff, CIVIL ACTION

Vv. ) NO. CV 01-423

ASHLAND, INC., et al.,

Defendants. )

PLAINTIFF’S RESPONSE TO DEFENDANTS

ASHLAND’S, CHEVRON’S, AND EXXON’S

MOTION FOR SUMMARY JUDGMENT

COMES NOW the Plaintiff in the above-styled cause,

by and through counsel, and responds to these Defendants’

Motion for Summary Judgment as follows:

1. That there are genuine issues of material fact so

as to preclude a judgment as a matter of law.

2. This response is based on the attached Memoran-

dum of Law, all of the pleadings to date, all discovery and

responses filed to date, the deposition testimony of Jack

Cline, and chemical analysis of defendant Thompson &

Formby’s product, Thompson's Water Seal.

/s/ Mark Rowe

Mark L. Rowe, State Court ID No. ROW003

Environmental Attorneys Group, L.L.C.

1900 28th Avenue South

Birmingham, Alabama 35209

Telephone: 205-326-1000

Facsimile: 205-326-1007

ATTORNEYS FOR THE PLAINTIFF

App. 20

Of Counsel

Dan Reynolds

510 North 18th Street

Bessemer, AL 35020

205-425-7001

Oral Argument Not Requested

Unless So Desired by the Court.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have, on this the _ 7

day of October, 2002, served the above and foregoing

Plaintiff's Response to Defendarits Ashland’s, Chevron’s,

and Exxon’s Motion for Summary Judgment upon counsel

of record on the attached service list by placing a true and

correct copy thereof into the U.S. Mail, first class postage

prepaid.

/s/ Mark Rowe

Of Counsel

App. 21

IN THE CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, )

es )

risinGe, ) CIVIL ACTION

v. ) NO. CV 01-423

ASHLAND, INC.., et al.,

Defendants. )

PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT

I. Discussion of Facts

Plaintiff, Jack Cline, suffers with a form of cancer

known as acute myelogenous leukemia; it is often fatal

and almost uniquely caused by exposure to benzene.

“Clinical reports and epidemiologic studies have repeat-

edly linked benzene exposure with leukemia, primarily

acute myelogytic and other types of acute non-lymphocytic

leukemia.” (italics added).

Without question Cline was exposed to benzene

manufactured by these defendants. They are satisfied

their benzene product(s) would have been used by Cline,

thereby exposing him and seek no issue concerning the

identification and use of their benzene products. They

state as “an undisputed material fact” that: “He got the

' S.N. Yin, et al., A Retrospective Cohort Study of Leukemia and

Other Cancers in Benzene Workers. Environmental Health Perspectives

Vol. 82, 1989. 207.

App. 22

benzene from 55 gallon barrels, and he specifically re-

members using benzene from barrels bearing labels from

Ashland, Mobil, Chevron, and Amoco.” We agree with this

undisputed material fact.

More troubling is the defendants’ oft-repeated state-

ment that Cline “has not been exposed to benzene since

1987.” Jack Cline has been exposed to benzene and ben-

zene-related derivatives beginning in 1969 continually so

into 1999. To claim otherwise ignores Cline’s testimony,

who thoroughly described his exposure to not only these

defendants’ benzene, but to another defendant in this case,

Thompson & Formby’s product as well; Thompson’s Water

Seal. Cline not only discussed the defendants at issue

here, but discussed the history of his continual exposure to

benzene from Thompson’s Water Seal manufactured by

defendant Thompson & Formby.

Q: (by Mr. Miller): Mr. Cline, when do yo first recall

using Thompson’s Water Seal?

A: Well, it was probably around 1969.

Q: And you used it periodically when you were doing

work up until when? 1998?

A: 7°99, the first part of 99 and all before I came down

with my cancer.

Thompson’s Water Seal contains benzene and ben-

zene derivatives. This significant evidence should not be

* Defendants’ brief at 3.

App. 23

omitted and any claim of exposure that is different is

certainly not an “undisputed fact.”

II. Plaintiff Cline Filed His Claim Within Two

Years of His Last Exposure to Benzene.

Defendants’ argument merely recites the general rule

that a suit must be brought within two years of the last

date of exposure to a harmful substance. They cite three

cases for that proposition, each of which are consistent and

supportive of the plaintiff in this case. Each case is consid-

ered.

A. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.

- 4979).

The Garrett plaintiff, Gary Garrett, claimed exposure

to radiation from radar equipment manufactured by one

and only one defendant for a period of two years from 1955

to 1957. He did not allege any continuing exposure to

radiation beyond those dates. It is the continuing nature of

exposure that differs here from Garrett. Garrett brought

his lawsuit more than 20 years after his last exposure to

radiation, unlike Cline, who brings his suit within two

years after his last exposure to benzene. Jack Cline’s last

exposure to benzene was in 1999, consistent with the

holding in Garrett. The language in Garrett that suggests

a statute of limitations “began to run when plaintiff was

* Defendants’ brief at 3. While worded only slightly different,

defendants’ brief is replete with this allegation. Jack Cline deposition

testimony taken July 9, 2002, at 60. Chemical analysis of Thompson’s

Water Seal showing high parts per million amounts of benzene and

benzene-related derivatives is attached to this Memorandum.

App. 24

last exposed to radiation” might as easily say that Cline’s

statute “began to run when [he] was last exposed to

“benzene”. The Garrett decision hardly justifies a judgment

for these defendants as a matter of law against Jack Cline.

B. Becton v. Rhone-Poulenc, Inc., 706 So.2d

1134 Ala. 1997.

Similarly, there is little comfort for these defendants

in the Becton decision. There, the plaintiff was exposed to

an admitted teratogen, which the defendants here cor-

rectly point out is in the same chemical family as benzene,

demonstrating the potent carcinogenic reach of benzene

and its derivatives. Despite this defendant’s characteriza-

tion to the contrary, this is the only “strikingly similar

fact” to Cline’s benzene exposure. Beyond that, the case is

quite dissimilar.’

Becton’s last exposure to a benzene-related chemical

was almost nine (9) years before he filed suit; plaintiff

Jack Cline’s last exposure to benzene itself was within two

years of his lawsuit. Most importantly, in Becton, plain-

tiffs response to the statute of limitations defense was to

assert that a discovery statute was “federally mandated”

under the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA). The Court

then entered into a lengthy discussion of federalism in

relationship to CERCLA. We make no such claim here.

Alabama, to state perhaps overly generally, follows the

last date of exposure rule and we do not argue otherwise.

* Defendants’ brief at footnote 6 at 7; defendants’ brief at 7. Similar

carcinogenic chemicals in the same chemical family, is the only “strik-

ingly similar fact” between Becton and Cline.

App. 25

The only relevant language found in Becton simply

restates the general rule on the last date of exposure. For

purposes of an action based on continuous exposure to a

hazardous substance, the date of the injury is the date on

which plaintiff was last exposed to the hazardous sub-

stance causing the injury.” Becton at 706. Here the “haz-

ardous substance causing the injury” is benzene, to which

Jack Cline was exposed last within two years of filing his

claim. We are consistent with the broad rule outlined in

Becton and assuredly do not argue that CERCLA federally

mandates a discovery rule. The Becton decision offers no

succor to these defendants for the harsh result they seek.

C. Hillis v. Rentokil, Inc., 596 So.2d 888, Ala.

1992.

Equally unrelated is the Hillis decision. It is curious

that the defendant in Hillis actually argued that Alabama

should adopt a discovery rule for statute of limitations

purposes, because Hillis was aware of his injuries earlier

than his last date of exposure. The defendant here strenu-

ously argues, as did the plaintiff in Hillis, that it is the

last date of exposure rather than a discovery rule that

governs the statute of limitations. Plaintiff Hillis filed his

complaint, as has Cline, within the last two years of his

exposure. It is difficult to understand how the Hillis

decision helps the defendants here.

It is clear that Cline filed his lawsuit within two years

of his last date of exposure to benzene and is consistent

with all of the cases cited by these defendants.

App. 26

Ill. There is No Different Statute of Limitations

for This Defendant.

So clearly has Cline filed his suit within two years of

his last exposure that it is difficult to discern how this

defendant would justify escaping liability with what they

have presented to the Court. While never argued directly,

there is an oblique reference by this defendant that hints

at perhaps their true argument. They mention in passing

that Cline failed to file a claim within two years of his

exposure “to any benzene that may have been supplied by

these defendants.”

If indeed this be their true argument, they should say

so in a fully cited and reasoned brief rather than some

glancing throw-away line at the end of a largely irrelevant

brief. Their reluctance to do so must necessarily stem from

the realization that such a conclusion is not only counter-

initiative but also not the law in Alabama.

All the defendants in this case are concurrent tortfea-

sors, and as such are equally liable for the entire injury

suffered by Jack Cline. In other words, they are all equally

liable for the one injury that the plaintiff sustained. This

is the conclusion found in the Garrett decision. Garrett

explained that the “date of injury” for statute of limita-

tions purposes is the “day on which the plaintiff was last

exposed to the damages which injured her.” Garrett at 520.

Therefore, in a case involving a continuing exposure, such

as a benzene exposure case, the actions cannot accrue

under the last date of exposure statute of limitations as

long as the person is still being exposed to the “hazardous

substance.” The Court clearly reasoned in Garrett that the

* Defendant’s brief at 9.

App. 27

date of injury for statute of limitations purposes is the day

on which the plaintiff was last exposed. Until that date,

the plaintiff does not have an injury for which the statute

of limitations would begin to run.

Thus, the statute of limitations could not begin to run

on any claims against some of the defendants or any of

their concurrent tortfeasors until every action which

contributed to Cline’s injury had occurred. Accepting the

defendants’ apparent argument would lead to the astound-

ing conclusion that a different statute of limitations would

apply to concurrent tortfeasors who together caused one

injury through a continuing tort simply based on the last

date of exposure to that particular defendant’s product.

That reasoning could have the potential effect of forcing a

minor defendant whose product exposed the plaintiff much

later being held responsible for the plaintiff's entire injury.

That is not the law in Alabama, and none of the cases cited

by this defendant have reached that conclusion.

Consistent with the law in Alabama, plaintiff Jack

Cline filed his lawsuit within two years from the date of

his last exposure to these concurrent tortfeasors’ benzene.

These defendants’ Motion for Summary Judgment based

on the statute of limitations on the plaintiff's AMELD

claim is due to be denied.

/s/ Mark Rowe

Mark L. Rowe, State Court ID No. ROW003

Environmental Attorneys Group, L.L.C.

1900 28th Avenue South

Birmingham, Alabama 35209

Telephone: 205-326-1000

Facsimile: 205-326-1007

ATTORNEYS FOR THE PLAINTIFF

App. 28

Of Counsel

Dan Reynolds

510 North 18th Street

Bessemer, AL 35020

205-425-7001

Oral Argument Not Requested

Unless So Desired by the Court.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have, on this the 7

day of October, 2002, served the above and foregoing

Plaintiff’s Memorandum in Opposition to Defendants’

Motion for Summary Judgment upon counsel of record on

the attached service list by placing a true and correct copy

thereof into the U.S. Mail, first class postage prepaid.

/s/ Mark Rowe

Of Counsel

App. 29

CV 2001 00423.00

JUDGE: DAN C. KING III

ALABAMA JUDICIAL DATA CENTER

CASE ACTION SUMMARY CONTINUATION

CIRCUIT CIVIL

IN THE CIRCUIT COURT OF JEFF-BESMR COUNTY

JACKCLINE VS ASHLAND INC., ET AL

FILED:

xe *

DATE 1:

DATE 2:

/ * he em

1/14/03

1/29/03

04/06/2001 TYPE: PRODUCTS LIABILITY

TYPE TRIAL: JURY TRACK:

i i

CA: CA DATE:

AMT: $00 PAYMENT:

i i

* * -

Motion for Summary Judgment on Behalf of

Defendants Ashland, Inc, Chevron Phillips

Chemical LP Successor in Interest of Chevron

Chemical Company LLC and Exxon Mobil Com-

pany is denied. Holmes Oil Company motion for

summary judgment is denied. The Breach of

Warranty counts in the complaint are granted by

agreement of the parties and are dismissed.

This case is set Sept. 8, 2003 #4

/s/ Dan C, King III Judge

attys notified via fax (1s)

App. 30

IN THE CIRCUIT COURT FOR

JEFFERSON COUNTY, ALABAMA

BESSEMER DIVISION

JACK CLINE, §

Plaintiff, ;

vs. § CIVIL ACTION NO.

ASHLAND, INC,; BPAMOCO § cy.2001-423-

CHEMICAL COMPANY, INC; ;

BPAMOCO CORPORATION; ? oat ARGUMENT

CHEVRON CHEMICAL REQUESTED

COMPANY: EXXON MOBIL §&

CORPORATION: et al., ;

Defendants. §

- MOTION FOR SUMMARY JUDGMENT

OF DEFENDANTS ASHLAND, INC.,

CHEVRON PHILLIPS CHEMICAL LP,

‘ SUCCESSOR IN INTEREST TO

CHEVRON CHEMICAL COMPANY, LLC,

AND EXXON MOBIL CORPORATION

Defendants Ashland, Inc., Chevron Phillips Chemical

LP, successor in interest to Chevron Chemical Company,

LLC, and Exxon Mobil Corporation, move the Court,

pursuant to Rule 56 of the Alabama Rules of Civil Proce-

dure, for entry of an order granting summary judgment in

their favor on each and every claim made against them by

plaintiff. In support of this motion, defendants aver that

there is no material issue of disputed fact, and that they

are entitled to summary judgment as a matter of law for

any or all of the following reasons:

App. 31

1. Plaintiff’s claims against these defendants are

barred by the applicable statutes of limitation.

2. Plaintiff cannot demonstrate by substantial

evidence that he experienced any substantial exposure to

benzene.

3. Plaintiff cannot establish by substantial evidence

that he was exposed to any benzene produced or supplied

by any of these defendants.

4. Plaintiff cannot establish by substantial evidence

that any of these defendants supplied benzene that was in

a defective or unreasonably dangerous condition.

5. Plaintiff cannot produce substantial evidence that

low level exposures to benzene of the type he allegedly

experienced are associated with the production of acute

myelogenous leukemia in humans.

6. Plaintiff cannot produce substantial evidence that

his disease, to any degree of medical certainty, most

probably resulted from exposures to benzene.

This motion is based upon the pleadings, the narra-

tive summary of undisputed facts and brief in support of

motion for summary judgment filed contemporaneously

herewith, and the evidentiary submission in support of

motion for summary judgment also filed contemporane-

ously herewith.

WHEREFORE, defendants request that the Court

enter an order granting summary judgment in their favor.

/s/ George M. Walker

GEORGE M. WALKER

App. 32

HAND ARENDALL, L.L.C.

3000 AmSouth Bank Building

Post Office Box 123

Mobile, Alabama 36601

Phone: (251) 432-5511

Fax: (251) 694-6375

TRACY R. DAVIS

HAND ARENDALL, L.L.C.

900 Park Place Tower

2001 Park Place North

Birmingham, Alabama 35203

Phone: (205) 324-4400

Fax: (205) 322-1163

LOUIS C. WOOLF

M. DENISE MORETZ

Attorneys for Defendants

Ashland, Inc., Chevron Phil-

lips Chemical LP, successor in

interest to Chevron Chemical

Company, LLC, and Exxon

Mobil Corporation

WOOLF, MCLANE, BRIGHT,

ALLEN & CARPENTER

Post Office Box 900

Knoxville, Tennessee 37901-0900

Phone: (865) 215-1000

Fax: (865) 215-1015

Defendants respectfully recuest oral argument on their

motion

/s/ George M. Walker

App. 33

CERTIFICATE OF SERVICE

I hereby certify that I have on this day, January 8,

2004, served a copy of the foregoing pleading on the

following listed counsel of record by mailing the same by

United States mail, properly addressed and first class

postage prepaid.

/s/ George M. Walker

COUNSEL OF RECORD:

Mark L. Rowe, Esquire

Environmental Attorneys Group, L.L.C.

Homewood Executive Center, Suite 107

1900 28th Avenue South

Birmingham, Alabama 35209

Richard E. Davis, Esquire

Cabaniss, Johnston

Post Office Box 830612

Birmingham, Alabama 35283-0612

E. Martin Bloom, Esquire

Friedman, Leak & Bloom, P.C.

3800 Colonnade Parkway, Suite 650

Birmingham, Alabama 35243

Rusha C. Smith, Esquire

Bradley, Arant, Rose & White, L.L.P.

One Federal Place

1819 5th Avenue North

Birmingham, Alabama 35203-2104

James R. Miller, Esquire

Dickie, McCamey & Chilcote

Two PPG Place, Suite 400

Pittsburg, Pennsylvania 15222-5402

App. 34

IN THE CIRCUIT COURT

OF JEFFERSON COUNTY, ALABAMA

ASHLAND, INC., et al.,

Defendants.

BESSEMER DIVISION

JACK CLINE, )

Plaintiff, |

- ) CIVILACTION NO.

CV 01-423

PLAINTIFF’S REPLY BRIEF IN OPPOSITION

TO DEFENDANTS ASHLAND, INC., CHEVRON

PHILLIPS CHEMICAL LP, SUCCESSOR IN

INTEREST TO CHEVRON CHEMICAL COMPANY,

LLC, EXXONMOBIL CORPORATION, AND

BP AMOCO CHEMICAL COMPANY, SUCCESSOR

IN INTEREST TO AMOCO CORPORATION AND

STANDARD OIL COMPANY, SHERWIN WILLIAMS

COMPANY AND HOLMES OIL COMPANY’S

MOTION FOR SUMMARY JUDGMENT

The Plaintiff, Jack Edward Cline, by and through its

counsel and, pursuant to Rule 56(b) of the Alabama Rules

of Civil Procedure, seeks denial of the summary judgment

motion filed by Defendants where there are genuine issues

of material facts and these Defendants are not entitled to

judgment as a matter of :4w.

NARRATIVE SUMMARY OF UNDISPUTED

FACTS AS READ AND INTERPRETED

BY THE PLAINTIFF

The Plaintiff, Jack Edward Cline, filed suit against

the named Defendants as manufacturers, suppliers, and/or

App. 35

distributors of benzene and/or benzene-containing prod-

ucts after he was diagnosed with Acute Myelogenous

Leukemia (“AML”). This condition is unequivocally known

to be caused by benzene. Mr. Cline’s AML developed after

several years of exposure to defendant’s benzene where

these products were delivered and used by Mr. Cline and

his coworkers as a cleaning solvent at Griffin Wheel, a

wheel manufacturing facility located in Bessemer, Ala-

bama. Mr. Cline’s exposure to benzene began approxi-

mately in 1968 when the Griffin facility began to utilize a

chemical analysis device called a “spectrometer.” (“Exh. I”,

Plaintiff’s dep. p. 88, lines 1-23). This exposure to benzene

at Griffin lasted through 1986 or 1987 when his job re-

sponsibilities began to change. (“Exh. 2,” Plaintiff’s dep. p.

89 lines 8-23). However, his exposure to benzene continued

for several years after leaving Griffin Wheel.

Mr. Cline also the used of Thompson’s Water-seal, a

chemical used as a water-proofing agent for wood and

other similar materials. Thompson’s Water-seal is a

trademark name owned by The Sherwin-Williams Com-

pany, also a defendant party in this lawsuit. Mr. Cline

believes that his AML was also caused by this product

since this product was used in his business and for per-

sonal applications around his home. Thompson’s Water-

seal, through chemical analysis, has been shown to con-

tain benzene and other petroleum-based constituents

likely to induce cancer as well. (“Exh. 3,” analysis report).

Mr. Cline used this product from the early 1970’s through

late 1999 on several construction projects and continued to

use this product just prior to his discovery of his AML, the

condition that lead him to file this lawsuit.

App. 36

PLAINTIFF CAN DEMONSTRATE GENUINE

ISSUES OF MATERIAL FACTS

Summary judgment is appropriate when there is no

genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

The moving party bears the burden of showing that there

is no issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 325, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265

(1986). In support of their motion for summary judgment,

defendants address five issues in support of their motion.

However, there are essentially three realistically before

the court:

Issue I

Whether Jack Cline’s claims against these defendants

are barred by the applicable statues of limitation;

Issue II z

Whether Jack Cline can demonstrate by substantial

evidence that he experienced any substantial exposure to

benzene to cause his condition, Acute Myelogenous Leu-

kemia (“AML”); and

Issue ITI

Whether Jack Cline can establish by substantial

evidence that he was exposed to benzene supplied by the

named Defendants that was in a defective or unreasonably

dangerous condition.

With the exception of issue I, “Yes” is essentially the

answer to all issues raised by the Defendants. However,

App. 37

for the purpose of offering evidence to support denial of

this motion, all responses are addressed accordingly.

I. THIS COURT HAS ALREADY RULED _IN

FAVOR OF THE PLAINTIFF WHERE THE

DEFENDANT ALLEGED NON-COMPLIANCE

WITH ALABAMA’S TWO-YEARS-FROM-LAST-

EXPOSURE RULE

This court has already addressed this issue. The

Defendants claim was denied before and nothing is pre-

sented here bring into disrepute the decision already

granted by this very court. Reconsidering this issue yet

again amounts to collateral estoppel. Denial again is in

order.

* * .

IV. ALL SUMMARY JUDGMENT MOTIONS ARE

DUE TO BE DENIED

The principles of law applicable to a motion for sum-

mary judgment are well settled. To grant such a motion,

the trial court must determine that the evidence does not

raise a genuine issue of material fact and that the movant

is entitled to a judgment as a matter of law. Rule 56(c)(3),

Ala.R.Civ.P. When the movant makes a prima facie show-

ing that those two conditions are satisfied, the burden

shifts to the nonmovant to present substantial evidence

creating a genuine issue of material fact. Bass v. South-

Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.

1989). Evidence is “substantial” if it is of “such weight and

quality that fair-minded persons in the exercise of impar-

tial judgment can reasonably infer the existence of the fact

sought to be proved.” West v. Founders Life Assurance Co.

of Florida, 547 So.2d 870, 871 (Ala. 1989). The evidence

App. 38

‘submitted in support of these claims made by Jack Cline

against these Defendants are more than significant to

encourage this court to deny this motion and allow a jury

to determine the rights of Mr. Cline, who continues to

battle this chemically-induced condition.

/s/ Gregory A. Cade

Gregory A. Cade,

State Court ID No. CADO10

Mark L Rowe,

State Court ID No. ROW003

2120 16th Avenue South,

Suite 100

Birmingham, Alabama 35205

Telephone: 205-212-9995

Facsimile: 205-212-9996

ATTORNEYS FOR THE

PLAINTIFF

Of Counsel

Dan Reynolds

510 North 18th Street

Bessemer, AL 35020

205-425-7001

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have, on this the 21st

day of June, 2004, served the above and foregoing Plain-

tiff’s Reply Brief in Opposition to Defendants Ashland,

Inc., Chevron Phillips Chemical LP, Successor in Interest

to Chevron Chemical Company, LLC, Exxonmobil Corpora-

tion, and BP Amoco Chemical Company, Successor in

Interest to Amvco Corporation and Standard Oil Company,

Sherwin Williams Company and Holmes Oil Company’s

Motion for Summary Judgment upon counsel of record on

App. 39

the attached service list by placing a true and correct copy

thereof into the U.S. Mail, first class postage prepaid.

/s/ Gregory A. Cade

Of Counsel

App. 40

NOTICE OF APPEAL TO THE

(Check appropriate block)

SUPREME COURT OF ALABAMA

(1) COURT OF CIVIL APPEALS OF ALABAMA

State of Alabama Civil Action Number:

Unified Judicial System

Form ARAP-1 (front) Rev. 1/97 | CV-01-423

IN THE CIRCUIT COURT OF JEFFERSON, BESSEMER

DIV. COUNTY, ALABAMA

APPELLANT

JACK CLINE

v. APPELLEE

ASHLAND, INC., CHEVRON PHILLIPS CHEMI-

CAL LP, EXXON MOBILE CORP.

TRIAL JUDGE

DAN C. KING, III

DATE OF DATE OF POST-

JUDGMENT: JUDGMENT ORDER:

3-8-05

NOTICE IS HEREBY GIVEN THAT JACK CLINE

appeal(s) to the above-named court from the 0 Final

Judgment & Order On Motion for Summary Judgment

(describing it) entered in this cause.

App. 41

CHECK THE PROPER DESCRIPTION OF THE APPEALED

CASE UNDER THE APPROPRIATE COURT:

SUPREME COURT OF CIVIL

COURT APPEALS

1. & Summary Judgment, ||1. 0 Summary Judgment,

amount claimed more amount claimed

than $50,000 $50,000 or less

2. UO Judgment Amount 2. UO) Judgment Amount

exceeds $50,000 $50,000 or less

3. O Amount Sought in /||3. 0 Amount Sought

trial court more $50,000 or less, judg-

than $50,000, judg- ment for defendant

ment fordefendant | |4. () Workman’s Compensa-

4. UL) Equitable Relief, tion

except for domestic 5. O Domestic Relations

relations 6. O Other:

5. O Other:

APPELLANT FILES WITH THIS NOTICE OF APPEAL:

1. & Security for costs of 4. MY Is exempted by law from

appeal giving security for costs

2. O Asupersedeas bond in of appeal by virtue of __.

the amount of $

3. 0 Deposited cash security

in the amount of $

Filed 4-15-05 2120-16th Ave. So. Ste. 100

(Date) Birmingham (Address)

AL 35205 205-212-9995

Telephone Number

CERTIFIED AS A TRUE COPY

/s/ Earl N. Carter, J. /s/ Mark A. Rowe

Circuit Clerk Appellant or Attorney for

Appellant

App. 42

SECURITY FOR COSTS

We hereby acknowledge ourselves security for costs

of appeal. For the payment of all costs secured by this

undertaking, we hereby waive our right of exemption as

to personal property under the Constitution and laws of

the State of Alabama.

Executed with our seals this 15th day of April, 2005.

_ | Filed and approved: /s/ Jack Cline by Mark

4-19-05 (Date) Rowe Mark Rowe __(LS.)

Appellant-principal

/s/ Mark Rowe (L.S.)

Surety

/s/ Earl N. Carter, J. (L.S.)

Circuit Clerk Surety

(Amended November 9,

1976; October 1, 1991.)

SUPERSEDEAS BOND

We, the undersigned principal and sureties, hereby

acknowledge ourselves bound unto in the

sum of Dollars, for the payment of which

we bind ourselves, and each other, our heirs, executors, [(for

amount of bond see Rule 8(a))] and administrators, jointly

and severally, and as part of this undertaking we hereby

waive our rights of exemption as to personal property under

the Constitution and laws of the State of Alabama.

WHEREAS, the above-named appellee(s) recovered a

judgment against appellant(s) for the sum of

Dollars (and the further acts or duty )

and [describing judgment in addition to or other than for

App. 43

money only] Dollars, the costs in that

behalf expended.

NOW, therefore, the condition of the foregoing obli-

gation is such that, if the appellant shall prosecute this

appeal to effect, and satisfy such judgment, penalties,

and costs, including costs of appeal as may be rendered in

this case, then the said obligation to be null and void,

otherwise to remain in full force and effect.

Executed with our seals this day of ;

Filed and approved:

____ (Date) (L.S.)

Appellant-Principal

(L.S.)

Surety

ait (L.S.)

Circuit Clerk Surety

EXECUTION OF JUDGMENT

STAYED:

Bond fixed at: $

(Not required for money Circuit Judge

judgment only.)

DESIGNATION OF RECORD ON APPEAL

DESIGNATION OF CLERK’S RECORD: Appellant requests

the clerk of include the following checked materials in the

clerk’s record:

App. 44

1. & Complaint 9. & Entire record (less those

2 & Answer items set forth in Rule

3. (J Courterclaim 10(a))

4. 1) Cross-Claim 10. & Motion for summary

5. O Third-party judgment

Complaint 11. & Opposition to motion

6. O Third-party for summary judgment

Answer 12. & Final (Judgment) (Order)

7. C Motion to dismiss 13. O machen ee sew See

@ 0) Preticlender 14. & Ruling on Motion

15. DO Others:

16. OO Exhibit Number:

TRANSCRIPT STATUS

&) Transcript will not be ordered. [See Rule 10(b), ARAP.]

(} Transcript will be ordered. [See Rules 10(b)(2) and

11(aX2) ARAP. Form 1A or 1B.] Court reporter(s):

NOTE: If more than one court reporter was involved in

this case, you must file a Transcript Purchase Order

Form in compliance with Rules 10(b) and 11(c), Form 1A

or 1B of the ARAP, for each court reporter.

(Amended October 1, 1991.)

App. 45

CERTIFICATE OF FILING

I certify that I have this date filed with the clerk of

the trial court the original and 4 copies of the foregoing

notice of appeal (along with $100 docket fee), and such

other instruments as have been completed and included

herein. A true copy of each of these items will be served

by the clerk of the trial court on each of the following:

1) Clerk of the appellate court, (the $100 docket fee

shall be transmitted with this filing).

2) Court Reporter.

3) Counsel for appellee, or appellee if no counsel.

Name: Mark Rowe, 2120-16th Ave. So. Ste. 100,

Birmingham, AL 35205

Address:

DATED this 15th day of April, 2005.

/s/ Mark Rowe

Attorney for Appellant

(Amended October 2. 1991.)

App. 46

DOCKETING STATEMENT

Appeal to the Supreme Court of Alabama

NOTE: Completed Civil Case

Cover Sheet must be attached.

State of Alabama

Unified Judicial System |Number:

Form ARAP-24 (front)

Rev. 1/97

Court)

Supreme Court Case

(To be filled in by Supreme

COUNTY

Jefferson

Bessermer Div.

CIVIL ACTION NUMBER

CV-01-423

TRIAL JUDGE

Dan C. King, III

I. PARTY/PARTIES

FILING APPEAL

(Appellant):

Jack Cline

APPELLANT'S Mark Rowe, Gregory Cade

ATTORNEY:

(205) 212-9995

Telephone Number

2120-16th Ave. So. Ste 100, Birmingham AL 35205

Address

City

State Zip Code

II. PARTY/PARTIES

Ashland, Inc., Chevron Phillips

APPEALED AGAINST Chemical, LP, Exxon Mobile Corp.

(Appellee):

APPELLEE’S

ATTORNEY:

George M. Walker

(251) 432-5511

Telephone Number

3000 AMS South Bank Bldg, Mobile, AL 36601

Address

City

State Zip Code

App. 47

III, APPELLANT IS THE TRIAL COURT:

) Plaintiff OC) Defendant O Other

IV. ISTHISACROSS-APPEAL? (]) Yes & No

V. RELIEF AWARDED/REQUESTED:

Please check the appropriate block(s):

A. X Monetary damages were either sought or

awarded, as set out below:

1. Compensatory damages were:

(a) O awarded in the amount of $ .

(b) O not awarded, but sought in the

amount of $

amount sought was not specified

in the complaint.

2. Punitive damages were:

(a) 0) awarded in the amount of $ :

(b) O not awarded, but sought in the

amount of $ :

amount sought was not specified

in the complaint.

3. A general award of damages (not differentiat-

ing between compensatory and punitive) was:

(a) O made in the amount of $ .

(b) OF not made, but sought in the

amount of $ :

amount sought was not specified

in the complaint.

App. 48

4, Other monetary damages (Type:

) were:

(a) O awarded in the amount of $

(b) OJ not awarded, but souignt in the

amount of $

amount sought was not specified

in the complaint.

5: Was there a remittitur or additur at issue

in the trial court? DOJ Yes OO No

(If yes, please provide the details in the

“FACTS” section on the back of this form.)

___ Equitable and/or declaratory relief was sought

in the trial] court.

___ Other

(Please provide the details of the issue(s) before

the Court in the “ISSUES” section on the back

of this form.)

VL TYPE OF JUDGMENT OR ORDER APPEALED. (Please

check one):

=—moO™yrSdO Dy

OO0moao0gdodno00

-Judgment based on a Jury Verdict

Judgment based on a Non-Jury Decision

Judgment Notwithstanding the Verdict (JNOV)

Order granting a New Trial.

Judgment as a Matter of Law

Summary Judgment

Dismissal

Default Judgment

Other

App. 49

VIL IF THIS CASE WENT TO TRAIL, HOW MANY DAYS DID

THE TRIAL TAKE?

VIII. FINALITY OF JUDGMENT: Date of entry of judgment

or order appealed from: 3 08 05

Month Day § Year

1. Is the judgment or order appealed & Yes O No

from in compliance with Rule 58,

A.R.Civ.P.?

2. Does the order appealed from & Yes (No

constitute a disposition of all

claims as to all parties?

3. If not, did the trial court enter an / Yes MI No

order intended to make the order

final pursuant to Rule 54(b)?

4. If the trial court intended to make 0 Yes & No

the order appealed from final

pursuant to rule 54(b), did the

court in the Rule 54(b) order

expressly determine that there

was no just reason for delay and

expressly direct that final judg-

ment be entered?

5. If the answer to question 2 is

“NO,” and the trial court did not

make the order final by full com-

pliance with Rule 54(b), please

explain the basis for seeking

appellate review and cite the

authority for this appeal:

App. 50

IX. POST-JUDGMENT MOTIONS: List all post-judgment

motions by date of filing, type, and date of disposi-

tion (whether by trial court order or by the provi-

sions of Rule 59 1, A.R.Civ.P.):

DATE OF FILING TYPE OF POST- DATE OF DISPOSITION

JUDGMENT MOTION

Month | Day | Year Month} Day | Year

NONE :

X. CONSTITUTIONAL ISSUES:

1. Are the provisions of Rule 44, (Yes & No

A.R.App.P., applicable to this

appeal?

2. If so, have the provisions been LJ Yes OC) No

complied with? :

XI. NATURE OF CASE ON APPEAL: In the left column of

boxes preceding the categories listed below, check

the box (check only one) that best describes or

categorizes the basis or theory of the primary issue

on appeal. In the right column of boxes, check any

secondary theories that are applicable to the suit.

TORTS:

01 OO Bad Faith

02 OO Fraud

03 OO Legal Malpractice

04 OU Medical Malpractice

05 OO Other Malpractice

06 WO Products/AEMLD

App. 51

07 OO Negligence (Vehicular)

08 O& Negligence (General/Other)

09 OO Personal Property

10 OOO Real Property

11 U0 Wrongful Death (All Types)

12 O& Wantonness

13 OO Conversion

14 OO Wrongful Employ. Termination

15 OO Premises Liability

16 OO Outrage

29 OO Other:

CONTRACTS:

30 OU) Commercial

31 OO) Personal

32 UO) Pension

33 OO Insurance

34 OO) Employment

39 OO Other:

40 OO Real Property

41 OO Civil Rights (Prisoner)

42 U0) Civil Rights (Other) —

43 OO) Wills/Trusts/Estates

44 00) Declaratory Judgment

45 OO Injunction (Commercial)

46 (0) Injunction (Employment)

47 OU) Injunction (Other)

48 OO Extraordinary Writ

-49 00) Pub. Service Comm

50 OOO) RR/Seaman (FELA)

App. 52

51 OOF RICO

99 OO Other:

XII. APPELLATE REVIEW: Please take notice that your

case may be initially reviewed by the Court of Civil

Appeals. Pursuant to § 12-2-7, Code of Alabama

1975, the Supreme Court has the authority to

transfer any civil case within its jurisdiction to the

Court of Civil Appeals, except cases presenting a

substantial question of federal or state constitu-

tional law; cases involving a novel legal question,

the resolution of which will have significant state-

wide impact; utility rate cases appealed pursuant

to § 37-1-140, Code of Alabama 1975; bond valida-

tion cases appealed pursuant to § 6-6-754, Code of

Alabama 1975; or Alabama State Bar disciplinary

proceedings.

If you believe this case should not be trans-

ferred to the Court of Civil Appeals, please state

with specificity the reason(s) why it should not be

transferred, referring to pertinent sections of § 12-

2-7. Reasons should be supported in the ISSUES

and FACTS sections of this docketing statement.

XIII. ISSUEs: Briefly summarize the issue(s) on appeal.

In an AEMLD Personal Injury Action for injury

caused by exposure to a toxic substance, does the

Statute of Limitations accrue against all joint

tortfeasors upon the plaintiffs last exposure to the

toxic substance?

App. 53

XIV. FACTS: Without argument, briefly summarize the

facts to inform the court of the nature of the case.

The plaintifffappellant developed acute myeloge-

nous leukemia (“AML”) as a proximate result of his

continuous exposure to benzene over the course of

many years, including exposure to pure benzene

manufactured and/or supplied by the defendants/

appellees, Ashland, Inc., Chevron Phillips Chemical

LP, and Exxon Mobil Corp. The plaintiff/appellant’s

exposure to benzene manufactured and/or supplied

by the defendants/appellees occurred while he was

employed as a plant chemist for Griffin Wheel Co.

in Bessemer from about 1968 through about 1987.

However, from the 1970’s through about 2000, the

plaintiff/appellant was also exposed to benzene

contained in a product known as “Thompson’s Water

Seal,” which was manufactured and/or supplied by

Thompson & Formby Co., a former defendant in the

case. In 2001 the plaintiff/appellant was first diag-

nosed with AML and in the same year filed this

AEMLD personal injury action against the defen-

dants/appellees and others, including former defen-

dant Thompson & Formby Co.

April 15, 05 /s/ Mark Rowe

Date Signature of Attorney/

Party Filing this Form

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.