Opposition Brief — Akin v. Ashland Chemical Co.

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Boprema Court, Ua

FIEED

| wpR 1999 |

No. 98-1420 | @FFICE OF THE CLERK |

In The

Supreme Court of the United States

October Term, 1998

JAMES E. AKIN, et al.,

ASHLAND CHEMICAL COMPANY, et a! |

Resp nd ii |

”

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

+ b

Mort (,. We H, Esq. Crype A. M hiM

WetcuH, Jones & Smoitn, P.¢ (Counsel of R

2601 Northwest KELLEY C. ( :

Expressway Crowe & D EVY

601 Oil Center West A Prort COR! :

Oklahoma City, Oklahoma 1800 Mid-America Tower i

73112 20 North Broadway 4

(405) 848-2000 Oklahoma City, Oklahom 5

73102 ;

(405) 235-7700

Counsel For Kespondent

April, 1999

QUESTION PRESENTED

Does the thirty-day time period for removal under 28

U.S.C. § 1446(b) begin to run upon defendant's receipt of

an initial pleading which admittedly gives, at most,

equivocal or ambiguous notice that plaintiff is seeking

relief over which a federal court would have subject

matter jurisdiction, or, as the court of appeals held herein,

only upon receipt of a pleading or other paper which

unambiguously gives notice of the right to remove?

As discussed below, the question presented by peti-

tioners, even as correctly formulated, cannot lead to a

change in result in this case, since the court of appeals

based the same decision on an independent ground ~ that

petitioners waived their objections to removal.

LIST OF PARTIES!

Ashland Chemical Company is a division of Ashland,

Inc. A list of the nonwholly owned subsidiaries of Ash-

land, Inc. is at Resp. App. 176.

Dow Chemical Company does not have a parent

company. A list of its nonwholly owned subsidiaries is at

Resp. App. 179.

McGean-Rohco, Inc. does not have a parent company.

Its nonwholly owned subsidiaries include: McGean-

Rohco Worldwide, Inc., McGean-Rohco Mexico S.A.,

McGean-Rohco Dinesh, Ltd., Alembic Insurance Com-

pany, Inova Plating, Ltd., Folke Stigen Fabricks, Kelly

McGean Investment Pte., Ltd., and McGean-Rohco Chem-

ical Corporation, Ltd.

| Petitioners failed to comply with Supreme Court Rule

14(1)(b), requiring that the names of all parties be listed,

however, a list of Petitioners can be found at Pet. App. A-21 and

the three Respondents are listed here.

lil

TABLE OF CONTENTS

Page

See MEER ED, Os os oak ca éd vows ae cevece. i

NN eso 7s o's Vesela sv cece ave een vee ii

REY OY SORE eso access Chavseisecceaces iii

SE TE, PUREE RPCMRE RES oo oc vac pc cnéccveccaciend Vv

OPINIONS AND ORDERS BY THE DISTRICT

COURTS AND COURTS OF APPEAL............ 1

ope a yy | ae Oe 1

A. Pre-Removal Proceeding In State Court...... 2

SB. ime Removal Proceedings.................... 3

C. Post-Removal Proceedings In Federal District

SECEDE RSS y hid Sex sess vecb bea S ec gees 8

is POMPNOTIOVAL AnrOal, . i... 5... cnc cceccc cscs 10

REASONS WHY THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED............. 15

A. Petitioners Waived Any Defect In Removal By

Suing Respondents In Federal Court After

Removal. Consequently, The Question Pre-

sented Is Hypothetical And The Petition

Requests An Advisory Opinion. ............. 16

B. The Issue Presented Requires Evaluation Of

I er a a cic as oy o's o:9.0 19

C. The Issue Presented Does Not Concern A Sig-

nificant Question Of Law.................... 20

D. Murphy Brothers, Inc. v. Michetti Pipe Stringing,

pe” ES ee ie en ee 21

AR SSI er a seep apae ae e 23

TABLE OF CONTENTS - Continued

Page

APPENDIX

Description Page No.

Plaintiffs’ Original Petition.............. Resp. App. 1

Plaintiffs’ Third Amended Original Peti-

COONS histone vise y ako oe poe y Oe LS See Resp. App. 14

INOTIRE OF AMNOVEE ux occess oc ccs 6c cs ede Resp. App. 31

Plaintiffs’ Motion to Remand............ Resp. App. 37

Fifth Circuit Order denying writ of mandamus -

MME SLC Piso e ava ccs Soles cast jane Resp. App. 52

Plaintiffs’ Fourth Amended Original Com-

PME Sides can sdeicecacaveces 4 abe ei Resp. App. 53

Complaint in Intervention .............. Resp. App. 98

Memorandum Opinion granting Motion for Sum-

mary Judgment - filed 12/13/96, Western Dis-

CHURE OF A TRAIOUNE 6 5 se cas ckvus cans Resp. App. 157

Brief of Appellants in Tenth Circuit

| A a CREE Sg Saha NH Resp. App. 163

TABLE OF AUTHORITIES

Page

Cases

Akin v. Ashland Chemical Co., 156 F.3d 1030 (10th

Sls. SEPM Mend ba ah ed Semen Cac ee passim

Akin v. Big Three Industries, Inc., 851 F.Supp. 819

EI A, SO dr ae oy A EE Ail Bis

Akin v. Big Three Industries, Inc., No. CIV-94-832-C

(W.D. Okla. Dec. 13, ga SE Tor Ye On Ce NE hapa ae 1

Barbara v. New York Stock Exchange, Inc., 99 F.3d 49

LONE We BPNOD Css sek vant pere tect LITE Pore 14

Bedell v. H.R.C., Ltd., 522 F.Supp. 732 (E.D. Ky.

stn fl ART ECT Tee POOP Ey ire wand mae ORG eeS Ah 12

Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th

Bie das BERET REC TER CPOE eee Bs 14

Boyle v. United Technologies Corp., 487 U.S. 500

1 ae Pep ET Fie Serre Ty Po inn ker 5

Brough v. United Steel Workers of America, A.F.L.-

C.1.0., 437 F.2d 748 (1st Cir. 1971)................ 14

Burgio v. McDonnell Douglas, Inc., 747 F.Supp. 865

(NED. Thin SOMO ss Wana eas wea goes 10

Cades v. H&R Block, Inc., 43 F.3d 869 (4th Cir. 1994) ....14

Caterpillar, Inc. v. Lewis, 519 U.S. __, 117 S.Ct. 467,

OO Sea GOP CIID) Ea so oo cs ci ci ba ee 15, 18

Chapman v. Powermatic, Inc., 969 F.2d 160 (Sth Cir.

idaic, SRE CLE CR EP OPTI ete Ee EE 20, 21

Citizens Marine National Bank v. U. S. Department of

Commerce, 854 F.2d 223 7 aRk SOR? SO er re 14

Conway v. California Adult Authority, 396 U.S. 107

of TEPAE ROT OE CPOE ttt rk Ape Rone tae Bans er ar 16

TABLE OF AUTHORITIES - Continued

Page

Crocker v. Borden, Inc., 852 F.Supp. 1322 (E.D. La.

RPG) bk ke nw cede Mekal Cauwkcned dete tease teow eke 5

DeBry v. Transamerica Corp., 601 F.2d 480 (10th Cir.

EOTD) 0 .ds cWinne kids Bek) Ciao ey Ae ae 13

Duane v. Oklahoma Gas & Electric Co., 833 P.2d 284

(hia: 2992F ie sca eab ke eek ind Cees 10

Estate of Krasnow v. Texaco, Inc., 773 F.Supp. 806

(ED. VR. TT) 6 Aa ete a eee 12

Fain v. Biltmore Securities, Inc., 166 F.R.D. 39 (M.D.

Aig. THRO i 6s ci xke ea REA ee wee 12

Fung v. Abex Corp., 816 F.Supp. 569 (N.D. Cal.

EPUERs ciiuctedeas kee} és euwa catia ead eee é. 5

Guillory v. Ree’s Contract Service, Inc., 872 F.Supp.

S44 (SE) Wei. TIPE Si vice ce bec eee vod thee er cae 4

Herb v. Pitcairn, 324 U.S. 117 (1945)...............5- 16

Hodges v. United States, 368 U.S. 139 (1961).......... 17

Houston Oil Co. v. Goodrich, 245 U.S. 440 (1918) ..... 19

Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir.

NWP) Sood cb ne hak ane cdwieeaeeiees tee es 14

Kidd v. Southwest Airlines Co., 891 F.2d 540 (5th Cir.

EOOOS eS 4 ect ee Ee a ee 14

McKnight v. Illinois Central Railroad, 967 F.Supp.

164 EE) £8. Boe ota sb vekec coco 12

Marker v. Universal Oil Products Co., 250 F.2d 603

C36 Cis, PROS) wae dow ois cele eee eee 10

Vii

TABLE OF AUTHORITIES - Continued

Page

Mater v. Holley, 200 F.2d 123 (oan: Clr. 2969) 353 os ps, 4

Mayberry v. Akron Rubber Machinery Corp., 483

F.Supp. 407 (N.D. Okla. Sp | aS Sipe GASES, cottages 10

Mesa v. California, 489 U.S. 12] hy Roe aN ase 5

Michetti Pipe Stringing, Inc. v. Murphy Brothers,

Inc., 125 F.3d 1396 (11th Cir. 1997), cert. granted,

— US. __, 119 S.Ct. 401, 142 L.Ed2d 326

Leiciies RARERI RI OP Le et oe Pee eos dan Pe 22

Mouton v. Sinclair Oil & Gas Co., 410 F.2d 717 (5th

Mee ee PATE Pe EID RIT 5s oa 4

Pack v. AC&S, Inc., 838 F.Supp. 1099 (D. Md. 1993),

reconsid. denied, 857 F.Supp. 26 (D. Md. ot Rai

Parker v. Main, 804 F.Supp. 284 (M.D. Ala. +’ 4 eee 4

Piccirillo v. State of New York, 400 U.S. 548 CEOP ED cas Be

Quadrini v. Sikorsky Aircraft Division, 425 F.Supp.

lk GS SSE | 6 Ieper tn eS RO gg OE 4, 10

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500

| ailt Bo PARES BEG CPE RR ee DUO NE Bl ty Dear Hig 19

Smith v. Butler, 366 U.S. HR ASTOR ee hua 17

Stewart & Co. v. Sadrakula, 309 U.S. 94 To, |) eae y

Stokes v. Adair, 265 F.2d 662 (4th Cir. 1959)........... 4

Tolion v. American Biodyne, Inc., 48 F.3d 937 (6th

yeas Rogshg! EGS Ce PEC ee oe ge a Me are 14

Vill

TABLE OF AUTHORITIES —- Continued

Page

Vasina v. Grumman Corp., 644 F.2d 112 (2d Cir.

SOEs ees BAS a Ow ae CE a ee avant 9

Vector Research, Inc. v. Howard & Howard Attorneys

PS, 76 Boe Boe tet GU Se eink kon bros es 14

Voelkel v. General Motors Corp., 846 F.Supp. 1468

(5). A; BISON Sci k es wi eee Cee eee eee et 10

Willingham v. Morgan, 395 U.S. 402 (1969) ............ 5

Winters v. Diamond Shamrock Chemical Corp., 901

F.Supp. 2I9S (G2. TOK. SIGE. os cians dc besa e ee eAas 5

Zacchini v. Scripts-Howard Broadcasting Co., 433

OS. S66 FAST 20: oot bah a ee ee Ce a 16

STATUTES AND OTHER AUTHORITY

U.S. Cet. OF 5 EBB Oh Se cee ta cnt aca wens 3

16 UR GST knw 06 cea se he sae eee o ake hae aes 9

20 Ue BE Ded 8 os eh Fy ek ieee 22

Be LI SOR Cah can cea gee ee Ceres ore bay oul ae ate 3

rs BBE toeae Gh: ae ery One gre ake eee myn iy 6

SD UA Oe AEE ov ek Ch Soak Ue dr kes bee Peel oe & oe

RO WS. eRe iis as ks ves kab ae sae eure 18

20 USS. © BOD ce cveies icin ee eee

Be SR BD haa Se PRE ESLER beaes y fie. Teo

OPINIONS AND ORDERS BY

THE DISTRICT COURTS AND COURTS OF APPEAL

Petitioners identify only the Officially reported opin-

ions of the United States District Court for the Eastern

District of Texas in Akin v. Big Three Industries, Inc., 851

F.Supp. 819 (E.D. Tex. 1994), and of the Tenth Circuit

Court of Appeals in Akin v. Ashland Chemical Co., 156 F.3d

1030 (10th Cir. 1998). The unreported opinion of the

United States District Court for the Western District of

Oklahoma, granting summary judgment for respondents,

is also relevant to a consideration of the petition, as

demonstrated below. See, Akin v. Big Three Industries, Inc.,

No. CIV-94-832-C (W. D. Okla. Dec. 13, 1996), Resp. App.

157-162. Petitioners also unsuccessfully sought a writ of

mandamus from the Fifth Circuit Court of Appeals to

review the order denying their motion to remand which

is reported in Akin v. Big Three Industries, Inc., 851 F.Supp.

819 (E.D. Tex. 1994). See, In re: James E. Akin, No. 94-40589,

(Sth Cir. July 28, 1994), Resp. App. 52.

STATEMENT OF THE CASE

Petitioners omit significant portions of the case

which have a direct bearing upon the Court’s consider-

ation of whether to grant the petition for writ of cer-

tiorari. Consequently, this statement is offered, and

additional portions of the record included in the appen-

dix to this brief.

A. Pre-Removal Proceedings In State Court.

On November 13, 1992, 126 Oklahoma residents com-

menced this products liability damage action in a state

court in Beaumont, Texas, against 12 defendants, none of

which remained as parties when the Oklahoma federal

court granted summary judgment for respondents, dis-

missing the claims of petitioners on the merits. Resp.

App. 1-13 and 157, 161-162. By various amended state

court petitions the number of Texas state court plaintiffs,

all Oklahoma residents, increased to 177, with one addi-

tional defendant, United Technologies, Inc. Resp. App.

14-30. In each state court petition plaintiffs allege they

suffered physical and emotional injuries from their expo-

sure to toxic chemicals and metals “while working at

Tinker Air Force Base in Oklahoma City, Oklahoma.”

Resp. App. 22-23. Plaintiffs claim their exposures

occurred while they were working on jet engines manu-

factured by two original defendants, General Electric

Company (GE) and Pratt & Whitney Company, Inc. (and

its successor, United Technologies Corporation). Resp.

App. 22-23. According to the original plaintiffs, dust was

emitted from metal in the jet engines on which plaintiffs

worked with various cleaning chemicals. Resp. App. 23.

These chemicals were allegedly manufactured or sold by

various of the original 12 defendants. Resp. App. rae

While various legal theories are mentioned in the state

court petitions, in essence plaintiffs claimed the original

defendants were liable because they failed to warn of

dangers to the plaintiffs of exposure to the metals in the

jet engines and to chemicals used in the maintenance of

those engines. Resp. App. 23.

B. The Removal Proceedings.

On July 16, 1993, the state court plaintiffs served

responses to interrogatories propounded by GE, in which

each plaintiff stated his or her work duties referred to in

the state court petitions “were performed on base,” i.e.,

Tinker Air Force Base (TAFB). Akin v. Big Three Industries,

Inc., 851 F.Supp. at 821 (Pet. App. A-3). On August 13,

1993, within thirty days of receipt of the interrogatory

answers, GE filed a notice of removal in the United States

District Court for the Eastern District of Texas, Beaumont

Division, in which the other defendants joined. Id.; Resp.

App. 31-36.

The first ground for removal was that the plaintiffs’

claims arose under the Constitution and laws of the

United States because the interrogatory answers dis-

closed all plaintiffs were civilian employees of the

Department of Defense and they were asserting injuries

which occurred exclusively within the territorial bound-

aries of TAFB, while in the course of work performed by

the plaintiffs. Resp. App. 33-34. Accordingly, GE asserted

the case came within the court’s “federal enclave” juris-

diction under 28 U.S.C. § 1331, and hence was removable

pursuant to 28 U.S.C. § 1441.!

1 U.S. Const. art. I, § 8 cl. 17 gives Congress the power to

exercise “exclusive Legislation” over land, areas, and places

within the states acquired for federal purposes: “the Congress

shall have Power . . . to exercise exclusive Legislation in all

Cases whatsoever, .. . over all Places purchased by the Consent

of the Legislature of the State in which the Same shall be, for the

Erection of Forts, Magazines, Arsenals, dock-Yards and other

needful Buildings ...” By virtue of this constitutional provision

the federal district courts have original, although not exclusive,

The second ground for removal was the existence of a

colorable claim to a federal defense by GE to the claims of

the plaintiffs, based upon the fact that the interrogatory

answers affirmatively disclosed that the plaintiffs were

asserting they were injured while working as civilian

employees of the Air Force in the course of maintenance

of aircraft designed and manufactured by GE pursuant to

contracts between GE and the Secretary of Defense. Resp.

App. 34-35. GE asserted that these contracts included

detailed specifications imposed by the Air Force for the

design, manufacture, and maintenance of jet engines, and

that GE acted under the authority of an officer of the

United States in designing, manufacturing, and establish-

ing maintenance procedures for, the jet engines. Id. On

the basis of this record GE asserted a governmental con-

tractor defense to the claims of the plaintiffs, and a right

to remove the action, without regard to the existence of

an independent federal jurisdictional basis, as a person

subject matter jurisdiction over transitory tort actions which

arise upon or within a federal enclave. Mater v. Holley, 200 F.2d

123, 124-125 (5th Cir. 1952); Stokes v. Adair, 265 F.2d 662, 666-667

(4th Cir. 1959); Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034

(10th Cir. 1998) (Pet. App. A-34-35); Parker v. Main, 804 F.Supp.

284, 286 (M.D. Ala. 1992); and Quadrini v. Sikorsky Aircraft

Division, 425 F.Supp. 81, 85 (D. Conn. 1977). Since the district

court has original federal question jurisdiction of such a case, it

is likewise removable pursuant to 28 U.S.C. § 1441. E.g., Mouton

v. Sinclair Oil & Gas Co., 410 F.2d 717, 718 (5th Cir. 1969); Fung v.

Abex Corp., 816 F.Supp. 569, 571 (N.D. Cal. 1992); and Guillory v.

Ree’s Contract Service, Inc., 872 F.Supp. 344, 345 (S.D. Miss. 1994).

acting under an officer of the United States within the

federal officer removal statute, 28 U.S.C. § 1442(a)(1). Id.2

The state court plaintiffs timely moved to remand.

Their primary argument was that the removal was

untimely because GE could have determined from the

original state court petition that grounds for removal

existed. Resp. App. 40-42. Secondly, they asserted that th

existence of concurrent jurisdiction of transitory tort

claims arising within a federal enclave precluded

removal. Resp. App. 42-44. Finally, they argued GE failed

to establish a colorable claim to the governmental con-

tractor defense which would support removal under 28

U.S.C. § 1442(a)(1). Resp. App. 45-49.

In Akin v. Big Three Industries, Inc., 851 F.Supp. 819

(E.D. Tex. 1994), (Pet. App. A-1-16) the motion to remand

was denied, and the case transferred, pursuant to 28

* GE's right to remove as a person acting under a federal

officer was based upon the existence of a “colorable defense”

under federal law, a necessary requirement for removal under

§ 1442(a)(1). See Willingham v. Morgan, 395 U.S. 402, 406-407

(1969) and Mesa v. California, 489 U.S. 121, 135-136 (1989). The

“colorable defense” was the governmental contractor immunity

or defense recognized in Boyle v. United Technologies Corp., 487

U.S. 500 (1988). A number of cases have recognized that the

existence of a colorable governmental contractor defense

justifies removal by a federal contractor under § 1442(a)(1). E.g.,

Fung v. Abex Corp., 816 F.Supp. 569, 571-572 (N.D. Cal. 1992);

Pack v. AC&S, Inc., 838 F.Supp. 1099, 1103 (D. Md. 1993),

reconsid. denied, 857 F.Supp. 26 (D. Md. 1994); Winters v. Diamond

Shamrock Chemical Corp., 901 F.Supp. 1195, 1199-1202 (E.D. Tex.

1995); and Crocker v. Borden, Inc., 852 F.Supp. 1322, 1325-1327

(E.D. La. 1994).

U.S.C. § 1404(a), to the United States District Court for

the Western District of Oklahoma.*

The court initially found a “compelling argument” to

exist for the application of principles of federal enclave

jurisdiction where injuries to federal employees are

alleged to have occurred on a federal military base while

the employees were performing maintenance on military

jet engines. 851 F.Supp. at 822 (Pet. App. A-4-5). Plain-

tiffs’ argument concerning the existence of concurrent

jurisdiction in the Texas state court for claims arising on a

federal enclave was rejected as “irrelevant” to the issue of

whether a federal question justifying removal was pre-

sented, since the concurrency of federal and state juris-

diction is the precise factor that makes the state court

case removable. Id., at fn. 1. (Pet. App. A-5 n. 1).

The court next found the case removable under

§ 1442(a)(1), after analysis of the elements of the federal

governmental contractor defense. 851 F.Supp. at 823-824

(Pet. App. A-5-9).

’ As Judge Cobb noted in granting the motion to transfer:

It is a rare case that more aptly illustrates the policies

driving § 1404. None of the plaintiffs resides in the

Eastern (or any other) District of Texas. All of the

alleged exposure occurred in Oklahoma City,

Oklahoma. The defendants allegedly delivered their

products to Tinker Air Force Base, located in

Oklahoma City. The plaintiffs are Oklahoma

residents. The only connections to Beaumont are

lawyers representing the parties.

851 F.Supp. at 826 (Pet. App. A-14).

EE UA FP EET OG EL GOI LOT OE IOI COLE OO GOED ELE LO, IDLE AE OP GOLD IE LID OGLE PERE NE PNT I OO LIE EE LE NL OD, PE eA ITN RN hi ND PR PE III Pe OI OLD I ETD PN

Finally, the court held the state court petition did not

state a removable case under the general removal statute

which would trigger the thirty-day time limit in 28 U.S.C.

§ 1446(b), because the allegations were susceptible of two

reasonable interpretations concerning whether the plain-

tiffs were claiming their injuries occurred exclusively

within the territorial limits of TAFB. 851 F.Supp. at 825

(Pet. App. A-11-12). The court concluded that only upon

receipt of plaintiffs’ interrogatory answers were “the

defendants without doubt provided notice that the case

was removable,” and that the interrogatory answers con-

Stitute “other papers” within the scope of § 1446(b). Id.

(Pet. App. A-12-13).

The court also held that the state court petition did

not reveal a case removable under § 1442(a)(1). One of the

essential elements for a colorable governmental contrac-

tor defense, the required “nexus between the acts [GE]

performed at the direction of the Secretary of the Air

Force and the present claim for relief,” 851 F.Supp. at 823

(Pet. App. A-8), was not apparent until GE received the

plaintiffs’ interrogatory answers. Id., at 825, n. 5. (Pet.

App. A-13 n. 5). The court then rejected a claim that

removal had been waived on the basis of the filing of a

motion for summary judgment by one of the original

defendants, Chemical Specialists and Development, Inc.,

because the basis to remove had not been disclosed by

plaintiffs’ interrogatories at the time the motion was filed

in state court, and hence no knowing waiver of the right

to remove could have been made at the time the motion

for summary judgment was filed. Id., (Pet. App. A-13-14).

The original plaintiffs sought a writ of mandamus

from the Fifth Circuit Court of Appeals to obtain review

of the order denying their motion to remand. The writ

was denied in an unpublished order on July 28, 1994.

Resp. App. 52. The original plaintiffs also sought recon-

sideration of the order denying their motion to remand

once the case was transferred to the United States District

Court for the Western District of Oklahoma, but this

motion was also denied on August 12, 1994. (Pet. App.

A-19-20).

C. Post-Removal Proceedings In Federal District

Court.

Then on October 3, 1994, the original plaintiffs filed,

voluntarily and with leave of court, a fourth amended

complaint, adding 85 new defendants, including the

respondents. Resp. App. 53-97. On December 7, 1994, 160

additional Oklahoma residents, who were present or for-

mer employees of the Air Force at TAFB, filed a com-

plaint in intervention which contained the same

allegations which were made in the fourth amended com-

plaint. Resp. App. 98-156.

After dismissals of most defendants pursuant to set-

tlement agreements or otherwise, the claims of the origi-

nal and intervening plaintiffs were eventually limited to

the respondents, none of which had been parties in the

Texas state court. As to respondents, petitioners claimed

that “they have central and peripheral nervous system

and other specified disorders as a result of exposure

through inhalation and dermal absorption of certain sub-

stances contained in products manufactured or supplied

by” respondents for use at TAFB. Resp. App. 157. The

alleged exposures occurred while the plaintiffs were

employed by the Air Force in aircraft maintenance posi-

tions in Building 3001 at TAFB. Id. Respondents were

alleged to be liable because they “breached their duty to

warn potential users [of their products] of the dangerous

propensities of these chemicals even though the chemi-

cals supplied were not improperly manufactured or con-

taminated.” Akin v. Ashland Chemical Co., 156 F.3d 1030,

1037 (10th Cir. 1998) (Pet. App. A-33).

After discovery, respondents moved for summary

judgment because the undisputed evidence established

that the Air Force, as the employer of petitioners, actually

knew or should have known of the potential hazards to

petitioners of exposure to the products which respon-

dents allegedly supplied to TAFB. Thus, as a matter of

law respondents did not owe petitioners or their

employer any duty to warn of such potential hazards.

Resp. App. 158. On December 13, 1996, the motion for

summary judgment was granted. The court found respon-

dents “have supplied a lengthy, detailed and well-sup-

ported list of undisputed facts which have not been

controverted by plaintiffs.” Resp. App. 158. The court

concluded respondents did not have a duty under Okla-

homa law to warn petitioners or their employer, the Air

Force, of dangers about which the Air Force either had

actual knowledge or about which it should have known.

Resp. App. 161.4 The “federalized” Oklahoma law

* Pursuant to 16 U.S.C. § 457 federal law is applicable to

this personal injury action arising on a federal enclave and

incorporates Oklahoma substantive law because the alleged

injuries occurred on a federal enclave surrounded by the state of

Oklahoma. Stewart & Co. v. Sandrakula, 309 U.S. 94, 100 (1940);

Vasina v. Grumman Corp., 644 F.2d 112, 116-117 (2d Cir. 1981);

recognizes the so-called “sophisticated or knowledgeable

purchaser” doctrine: a product seller is under no duty to

warn a purchaser of its products or the purchaser’s

employees of potential dangers associated with the use of

or exposure to the product which are actually known to

the purchaser or about which the purchaser should have

knowledge. Duane v. Oklahoma Gas & Electric Co., 833 P.2d

284, 286-287 (Okla. 1992); Marker v. Universal Oil Products

Co., 250 F.2d 603, 606-607 (10th Cir. 1957); and Mayberry v.

Akron Rubber Machinery Corp., 483 F.Supp. 407, 413 (N.D.

Okla. 1979). In granting summary judgment the district

court applied this law. Resp. App. 160-162.

D. Post-Removal Appeal.

Petitioners appealed to the Tenth Circuit Court of

Appeals, contending error in the denial of the motion to

remand filed by the original 126 plaintiffs. Petitioners

also asserted that a genuine issue of material fact existed

concerning the knowledge of the Air Force, as the

employer of petitioners, of the potential dangers of expo-

sure to the products of respondents. Resp. App. 168-170;

Akin v. Ashland Chemical Co., 156 F.3a at 1033 (Pet. App.

A-24). Petitioners sought to have the judgment for

respondents vacated on two grounds: that proceedings in

the district court were a nullity because removal was

improper even though respondents were not sued prior

to removal and many plaintiffs were also not parties to

Burgio v. McDonnell Douglas, Inc., 747 F.Supp. 865, 867 (E.D. N.Y.

1990); Voelkel v. General Motors Corp., 846 F.Supp. 1468, 1473 (D.

Kan. 1994); and Quadrini v. Sikorsky Aircraft Division, 425 F.Supp.

81, 84-88 (D. Conn. 1977).

the state court action; and that summary judgment was

inappropriate because of a disputed material fact.

Accordingly, petitioners requested the court of appeals to

remand the case against respondents to a Texas state

court in which respondents had never been sued, and in

which the 160 intervening plaintiffs had never chosen to

sue. See Resp. App. 167.

Noticeably absent from the appeal was any conten-

tion that substantive grounds for removal pursuant to 28

U.S.C. § 1441 or § 1442(a)(1) did not exist. Indeed, at the

heart of the removal argument on appeal was the asser-

tion that “the initial pleading [in state court] . . .

affirmatively revealed on its face grounds for removal

existed under either/both of GE’s asserted grounds for

federal jurisdiction: federal enclave and federal officer.”

Resp. App. 171. According to the petitioners, grounds for

removal were clear: “appellants assert that the Petition

was crystal clear on its removability.” Resp. App. 172.

The court of appeals rejected each ground of error,

and affirmed summary judgment. The court commenced

its discussion with an explicit determination that federal

enclave jurisdiction existed, noting that “[t]here is no

dispute that Tinker Air Force Base at Oklahoma City,

Oklahoma is such a federal enclave.” 156 F.3d at 1034

(Pet. App. A-25). The court then addressed the first

alleged defect in the removal, “that the removal petition

was defective in that all co-defendants did not consent

and join in the removal papers.” Id. Adopting what is the

unanimous view of other courts, the court held that

removal under § 1442(a)(1) does not require consent of

any defendant to removal by a federal officer or a person

acting under a federal officer. 156 F.3d at 1034-1035 (Pet.

App. A-26-27). A related argument, that one defendant

could not lawfully consent to removal “because it had

previously filed a motion for summary judgment in state

court, which motion was pending when removal was

granted,” was also rejected. 156 F.3d at 1036 (Pet. App.

A-30-31). The court concluded the moving defendant in

state court, Chemical Specialists, was not precluded from

consenting to removal “because actions in state court by

defendant Chemical Specialists in this case were taken

before it was unequivocally apparent that the case was

removable.” 156 F.3d at 1036 (Pet. App. A-30-31). Thus,

the court adopted the principle “that a defendant who

actively invokes the jurisdiction of the state court and

interposes a defense in that forum is not barred from the

right to remove in the absence of adequate notice of the

right to remove.” Id. (Pet. App. A-31).°

Next, the court addressed the argument that removal

was untimely because the initial pleading provided

defendants with all necessary information to ascertain

_removability. The court agreed with the conclusion of the

district court, in denying the motion to remand, “that the

5 Although the court of appeals did not cite the district

court’s opinion on this issue, the court of appeals agreed with

the reasoning of the district court. See Akin v. Big Three

Industries, Inc., 851 F.Supp. at 825-826 n. 5 (Pet. App. A-19). The

holding of both courts accords with the prevailing authority.

E.g., McKnight v. Illinois Central Railroad, 967 F.Supp. 182, 186

(E.D. La. 1997); Fain v. Biltmore Securities, Inc., 166 F.R.D. 39, 41

(M.D. Ala. 1996); Bedell v. H.R.C., Ltd., 522 F.Supp. 732, 738 (E.D.

Ky. 1981); and Estate of Krasnow v. Texaco, Inc., 773 F.Supp. 806,

809 (E.D. Va. 1991). Of course, whether Chemical Specialists did

or could consent was relevant only to removal under 28 U.S.C.

§ 1441 as § 1442(a)(1) does not require consent of all defendants.

initial pleading in this case was ambiguous in that it did

not provide unequivocal notice of the right to remove,

and the first clear notice of removability was given in

answer to an interrogatory.” 156 F.3d at 1035 (Pet. App.

A-29). Citing its own precedent, the court concluded that

28 U.S.C. § 1446(b) requires that the basis for remov-

ability “ ‘ought to be unequivocal’ ” and “ ‘should not be

ambiguous.’ ” 156 F.3d at 1035 (Pet. App. A-30), quoting

from DeBry v. Transamerica Corp., 601 F.2d 480, 489-490

(10th Cir. 1979). Thus, the court “requires clear and

unequivocal notice from the pleading itself, or a subse-

quent ‘other paper’ such as an answer to interrogatory.”

156 F.3d at 1036 (Pet. App. A-30).

Necessarily, the conclusion that removal was timely,

based upon GE’s receipt of an interrogatory answer,

resulted in the rejection of the argument of petitioners,

based upon some district court cases “to the effect that

where it is apparent that removal may be justified a duty

is imposed upon movants to investigate potential reasons

for removal.” 156 F.3d at 1035 n. 2 (Pet. App. A-27 n. 2)

(emphasis by the court). “We disagree with cases from

other jurisdictions which impose a duty to investigate

and determine removability where the initial pleading

indicates that the right to remove may exist.” 156 F.3d at

1036 (Pet. App. A-30) (emphasis by the court).

The court concluded its analysis of the removal issue

with a discussion of the effect of the voluntary amend-

ment of the complaint by the original plaintiffs and the

federal court intervenors to add respondents and others

as defendants in federal court after removal. Adopting

the unanimous view of other courts of appeal, the Tenth

Circuit held “that plaintiffs cannot voluntarily invoke,

and then disavow, federal jurisdiction.” 156 F.3d at 1036

(Pet. App. A-31). In so holding the court adopted the

reasoning and language of Bernstein v. Lind-Waldock &

Co., 738 F.2d 179 (7th Cir. 1984), in addressing the effect of

a voluntary amendment in federal court by a plaintiff

whose case was involuntarily removed to federal court:

“But once [plaintiff] decided to take advantage of

his involuntary presence in federal court to add a

federal claim to his complaint he was bound to

remain there. Otherwise he would be in a posi-

tion where if he won his case on there [sic] merits

in federal courts he could claim to have raised

the federal question in his amended complaint

voluntarily, and if he lost he could claim to have

raised it involuntarily and to be entitled to start

over in state court. He ‘cannot be permitted to

invoke the jurisdiction of the federal court, and

then disclaim it when he loses.’ ”

156 F.3d at 1037 (Pet. App. A-31-32), quoting from Berns-

tein, 738 F.2d at 185-186.°

New York Stock Exchange, Inc., 99 F.3d 49, 56 (2d Cir. 1996); Tolton

v. American Biodyne, Inc., 48 F.3d 937, 941 n. 2 (6th Cir. 1995); and

Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 42 (5th Cir. 1989). In

support of the conclusion it reached, the court of appeals could

have but did not cite the following additional cases: Brough v.

United Steel Workers of America, A.F.L.-C.I.O., 437 F.2d 748,

749-750 (1st Cir. 1971); Cades v. H&R Block, Inc., 43 F.3d 869, 873

(4th Cir. 1994); Citizens Marine National Bank v. U. S. Department

of Commerce, 854 F.2d 223, 226 (7th Cir. 1988); Kidd v. Southwest

Airlines Co., 891 F.2d 540, 546-547 (5th Cir. 1990); and Vector

Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 697

n. 3 (6th Cir. 1996).

Even if petitioners did not waive the alleged defects in the

removal procedure, the admitted and undisputed existence of

PO th Wie thle at OBER

Having rejected all arguments to undo the proceed-

ings in federal court against respondents who had never

been sued in state court, the court of appeals finally

addressed the merits of petitioners’ claims. The court

concluded that “[b]ecause of the wealth of research avail-

able, the ability of the Air Force to conduct studies, and

its extremely knowledgeable staff, we find that the Air

Force easily qualifies as a ‘knowledgeable purchaser’ that

should have known the risks involved with low-level

chemical exposure.” 156 F.3d at 1037 (Pet. App. A-35).

Thus, “[e]mployees of the Air Force are also deemed to

possess the necessary level of sophistication, so that

defendants had no duty to warn the Air Force or its

employees of the potential hazards.” Id.

—-

REASONS WHY THE PETITION FOR

A WRIT OF CERTIORARI SHOULD BE DENIED

The only “compelling reason” offered by petitioners

for the Court’s consideration of the petition is couched in

the language of Supreme Court Rule 10(c): the tendered

issue “is an important question of federal law that has not

been, but should be settled by the court.” Pet. at 15. This

federal question jurisdiction for their claim against respondents

at the time judgment was rendered against respondents, would

have precluded petitioners’ attempt “[t]o wipe out the

adjudication post-judgment, and return to state court a case

now satisfying all federal jurisdictional requirements.”

Caterpillar, Inc. v. Lewis, 519 U.S. ome tae Ot. 467, 477, 136

L.Ed.2d 437, 452 (1996). Such an attempt “would impose an

exorbitant cost on our dual court system — a cost incompatible

with the fair and unprotracted administration of justice.” Id.

assertion is incorrect and the Court’s discretion should

not be exercised to consider the issue presented in the

petition because the question presented:

(1) is hypothetical and requests an advisory

opinion;

(2) cannot lead to a change in result since the

court of appeals based the same decision on

an independent ground which petitioners

do not challenge;

(3) invites the Court to engage in fact deter-

minations; and,

(4) has not been the subject of conflict in the

circuits and is not sufficiently important for

the Court’s review.

A. Petitioners Waived Any Defect In Removal By

Suing Respondents In Federal Court After

Removal. Consequently, The Question Presented Is

Hypothetical And The Petition Requests An Advi-

sory Opinion.

The first, and the most fundamental, reason the peti-

tion should be denied is that the issue of whether the

time to remove should run whenever the removing defen-

dant can be shown to possess information, not discover-

able from the initial pleading or a subsequent “other

paper,” that a case is removable, is purely hypothetical.

The Court does not, of course, sit to render advisory

opinions upon abstract propositions which will not affect

the outcome in any way. Herb v. Pitcairn, 324 U.S. 117,

125-126 (1945); Zacchini v. Scripts-Howard Broadcasting Co.,

433 U.S. 562, 566 (1977); Conway v. California Adult Author-

ity, 396 U.S. 107, 110 (1969); Hodges v. United States, 368

U.S. 139, 140 (1961); Smith v. Butler, 366 U.S. 161 (1961);

Piccirillo v. State of New York, 400 U.S. 548, 549 (1971).

The winding path the case has followed to this Court

was described earlier in detail, primarily to demonstrate

the hypothetical nature of the issue presented by the

petitioners, and the advisory opinion which they are

requesting in their petition. Regardless of the merits of

the petitioners’ argument concerning when the removal

time begins to run, resolution of the issue favorably to

petitioners would not alter the outcome of the case. The

court of appeals held, as has every other circuit to

address the issue, that the voluntary amendment of the

complaint in federal court to add new parties (or claims)

within the court’s original jurisdiction, after an allegedly

untimely removal, precluded the assertion of the untime-

liness of the removal (or the other alleged procedural

defects) once the petitioners failed on the merits of their

claim. (Pet. App. A-31-32). Petitioners have not chal-

lenged that holding, which is thus final and provides an

independently sufficient basis for the Tenth Circuit's

rejection of petitioners’ objections to removal. The propri-

ety of the Tenth Circuit's affirmance of the district court’s

denial of the motion to remand for untimely removal is

thus not challenged under the question presented; peti-

tioners raise only an abstract question, and certiorari

should consequently be denied.

Moreover, the adoption of such an argument on this

record would result in the respondents being sent to a

state court in which they were never sued, to defend a

case they won on the merits in a federal court where they

were sued, and to drag along 160 plaintiffs who inter-

vened in the federal court case but never chose to initiate

litigation in state court.

The hypothetical nature of the issue presented is also

apparent from a consideration of an alternative argument

advanced by respondents to support the appellate court’s

conclusion that petitioners waived defects in the removal.

In Caterpillar, Inc. v. Lewis, 519 U.S. __», 117 S.Ct. 467, 136

L.Ed.2d 437 (1996) the Court held that the absence of

complete diversity at the time of removal, to which the

plaintiff timely objected, did not invalidate the subse-

quent federal court judgment for the removing defendant

because complete diversity existed when the judgment

was rendered. The same “considerations of finality, effi-

ciency, and economy,” 117 S.Ct. at 476, that led the Court

to refuse to invalidate the judgment in Caterpillar, despite

Caterpillar’s failure to satisfy the requirement in 28 U.S.C.

§ 1441(a) “that the case be fit for federal adjudication at

the time the removal petition is filed,” 117 S.Ct. at 475,

are of equal application in this case. Federal question

jurisdiction existed when the judgment was rendered for

respondents. Thus, any alleged procedural defects in the

removal procedure, including untimeliness, or even a

lack of jurisdiction at the time of removal (which peti-

tioners do not assert here or before the court of appeals),

should not undo the judgment in a fully adjudicated

case.”

? Petitioners admitted below that federal question

jurisdiction existed when summary judgment was entered.

Resp. App. 171-174.

B. The Issue Presented Requires Evaluation Of Factual

Issues.

The second reason the petition should be denied is

that, at best, the question of what knowledge GE pos-

sessed concerning the removability of the case when it

received the initial pleading, excluding the pleading

itself, is inherently a factual issue. The Court has histori-

cally declined to exercise its discretion to consider argu-

ments that turn essentially on factual determinations.

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 537

(1957) (Justice Frankfurter dissenting); Houston Oil Co. v.

Goodrich, 245 U.S. 440 (1918).

The petition discloses the inherently factual nature of

the issue:

From the interrogatories propounded by GE, the

employee affidavit, counsel’s statements at the

hearing and the Third-Party Complaint, it is

clear that GE knew at the time the original peti-

tion was served on it in December, 1992, that the

case was removable under either the federal

enclave or federal agent jurisdiction.

Pet. at 11. Whether “it is clear that GE knew” that the case

was removable is, as this passage implicitly assumes, an

issue of fact, based upon inferences to be drawn from the

interrogatories submitted to the plaintiffs by GE, the affi-

davit of the GE employee submitted in connection with

the notice of removal, the statements of counsel for GE at

the hearing on the motion to remand, and the motivations

for the filing of a third party complaint by GE. Such

complicated questions of fact are not only historically

disfavored by this Court, the fact-intensive test peti-

tioners argue for would greatly magnify uncertainty

about when removal time begins to run where there is

now relative certainty based on the express language of

the removal statutes.

C. The Issue Presented Does Not Concern A Signifi-

cant Question Of Law.

Finally, the petition should be denied because the

issue is not sufficiently important for the Court’s discre-

tionary review. Petitioners do not assert a conflict in the

circuits on the issue presented because no court of

appeals has ever adopted their argument. The closest

appellate opinion, on the related and often uncertainly

pled issue of amount in controversy in a diversity case, is

Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir. 1992).

There, the court stated:

We have found no circuit court opinions that

address whether a defendant is under a duty to

exercise due diligence in determining the

amount in controversy when the initial pleading

does not reveal such an amount, and the district

court opinions addressing this question are in

disagreement.

Id., at 162.

The Fifth Circuit went on to reject a “due diligence”

standard for determining the amount in controversy:

We . .. conclude that for the purposes of the first

paragraph of § 1446(b) the thirty day time

period in which a defendant must remove a case

starts to run from defendant’s receipt of the

initial pleading only when that pleading affir-

matively reveals on its face that the plaintiff is

seeking damages in excess of the minimum

jurisdictional amount of the federal court. We

adopt this rule because we conclude that it pro-

motes certainty and judicial efficiency by not

requiring courts to inquire into what a particu-

lar defendant may or may not subjectively

know. The rule . . . which Chapman proposes

that we adopt, in contrast, would needlessly

inject an uncertainty into a court’s inquiry as to

whether a defendant has timely removed a case,

and as a result would require courts to expend

needlessly their resources trying to determine

what the defendant knew at the time it received

the initial pleading and what the defendant

would have known had it exercised due dili-

gence.

969 F.2d at 163.

The petition for certiorari, by omission, acknowl-

edges that the issue presented has not precipitated any

debate at the appellate level. Moreover, none of the cases

cited in the petition address the issue of whether removal

in the technical federal enclave and federal officer areas

should be triggered by a defendant’s knowledge of its

internal activities.

D. Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.

Distinguished.

The petitioners’ attempt to analogize this case to

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., No.

97-1909 (Sup. Ct. Oct. Term 1998) is unavailing. Certiorari

was granted in Murphy Brothers to determine whether the

Eleventh Circuit was correct in its adoption of the

“receipt rule” interpretation of the requirement in 28

U.S.C. § 1446(b) that notice of removal be filed “within

thirty days after receipt by the defendant through service

or otherwise of a copy of the initial pleading.” See, e.g.,

Brief of Petitioner at 10-11, in Murphy Brothers, Inc. v.

Michetti Pipe Stringing, Inc., No. 97-1909 (S.Ct. Dec. 22,

1998), 1998 WL 890115 at *6. This issue presumes the

initial pleading discloses a removable case. However, in

this case, petitioners do not rely, in this Court, upon the

allegations of the initial pleading to trigger removal, and

the courts below determined as a fact that the initial

pleading did not state a removable case. The issue in

Murphy Broth. -s is purely one of statutory construction,

whereas in this case the Court is asked to determine

whether various acts of GE establish, as a fact, that GE

possessed knowledge of the removability of the case

when GE was served with process and the state court

petition.

The issue in Murphy Brothers has also received signifi-_

cant attention at the circuit court level, whereas the only

appellate level opinion to consider an issue even

remotely related to the one tendered in this case, rejects

an argument similar to that made by petitioners. Finally,

and most importantly, the issue in Murphy Brothers was

clearly presented to the district court and then to the

court of appeals as a certified interlocutory order pur-

suant to 28 U.S.C. § 1292(b). See Michetti Pipe Stringing,

Inc. v. Murphy Brothers, Inc., 125 F.3d 1396, 1397 (11th Cir.

1997). Here, the court of appeals ruled the removal issue

was waived when the petitioners voluntarily sued

respondents in federal court after the allegedly untimely

removal. Consequently, there is only a peripheral sim-

ilarity between Murphy Brothers and this case, and Mur.

phy Brothers adds nothing to the reasoning process as to

whether certiorari should be granted here.

CONCLUSION

The petition should be denied because petitioners

waived all asserted errors in the determination of timeli-

ness of the removal when they voluntarily sued the

respondents in federal court after removal, and thereafter

lost the case against respondents on the merits, at a time

when federal jurisdiction admittedly existed. Thus, the

issue tendered in the petition is hypothetical and any

consideration of it would be purely advisory. The petition

should also be denied because the issue it tenders

requires a weighing of evidence concerning the state of

mind of a defendant and is not a significant issue which

warrants the Court’s time and consideration.

Respectfully submitted,

Mort G. WetcH Crype A. MuUCHMORE

Wetcn, Jones & SMITH Ketitey C. CALLAHAN

2601 Northwest Crowe & Dun tevy, A P.C.

Expressway 20 N. Broadway Avenue

601 Oil Center West 1800 Mid-America Tower

Oklahoma City, OK 73112 Oklahoma City, Oklahoma

(405) 848-2000 73102-8273

(405) 848-2029 (Facsimile) (405) 235-7700

Counsel for Respondent (405) 272-5221 (Facsimile)

McGean-Rohco, Inc. Counsel for Respondents

Ashland Chemical Company

and Dow Chemical Company

Resp. App. 1

CAUSE NO.

JAMES E. AKIN, RICHARD G.

ARELLANO, TERRI R.

ARMSTRONG, CHARLES L.

BALDWIN, ANNIE M. BARNES

FREDDIE BEVERS, TERRY D.

BLAIN, MARCIA BRANNOCK,

DELTON E. BROWN, TIMOTHY L.

CARAWAY, ELWOOD CLARK,

THOMAS W. CLARK, RICHARD

COTEY, CONNIE COTTRELL,

RONNIE D. COTTRELL, STEVEN

L. COY, HUGH CROW, VIRGIL

CRUMP, NATHAN D’AMICO,

EDDIE R. DANNA, JR., AUDREY

L. DAVIS, DONNA M. DAVIS,

LOUIS R. DICKINSON, OLLIE

DILLISHAW, JR., DANNY L.

DUNN, JENNY L. DUREN, BILL

R. DURINGTON, STEPHEN RAY

DUTY, LEON EALON, NOLA D.

ELLZEY, DEBRA M. EMERICH,

JANETTE K. FARLEY, PAUL

FIELDS, DAVID R. FREESE,

PATRICIA FROST, JON G.

GABBARD, LINDA D. GATEWOOD,§

CAROLINE L. GENZER, JEFFREY

A. GEORGE, MAX R. GLOVER,

WENDELL P. GOMEZ, JOHN C.

GOULD, PHYLLIS J. GOULD,

REGINA G. GRISSAM, DENORAH

L. HALL, PHYLLIS HALL, JOHN

PETER HANNER, KENNETH 0.

HART, MICHAEL HAWKINS,

EDGAR HOUSTON, VALENCIA

HOWELL, RALPH V. ICE, GARY P. §

MMM UN MM MM) WP) UN UM) ua) LH) Ww MMMM MM UM WM

MMM MM MM WM wn

IN THE

DISTRICT

COURT OF

JEFFERSON

COUNTY,

TEXAS

____ JUDICIAL

DISTRICT

Resp. App. 2

IMPSON, ERIC L. JANOUSEK, §

JAMES DALE JONES, DAVID §

KEISER, CURT A. KINDER, BILLY §

B. KING, ALLAN LARSEN, LEORA §

LEWIS, LARRY D. LIDELL, §

ROBERT C. LOVE, WILLIE McNEAL, §

JACK L. MANNING, THOMAS §

MARSHALL, PAUL C. MEHAFFEY, §

RAMONA B. MELLINGER, DAVID §

L. MOORE, MICHAEL D. MOWLES, §

JEFFREY MURRAY, MELVIN E. §

NORTON, ZENEPHOR §

OVERSTREET, JAMES M. OWEN, §

TERRY W. OXLEY, RONALD K. §

PEOPLES, MICHAEL PHILLIPS, §

DARRYL A. PIERCE, MARIE L. 8

PLUMLEE, PHILLIP PLUMLEE, §

RICK REAMES, JACK D. RHODEN, §

OTHA L. RHODEN, WAYNE §

RICHARDSON, GEORGE ROBERTS, §

NORMA ROBERTS, CHARLON 5S. §

ROGERS, SANDRA ROLLAND, §

TERRY ROLLINGS, MARLYS RONE, §

JUDY A. ROWLAND, TONY E. 8

RUBLE, REATHA R. SCHLEGEL, 8

GLORIA SHELTON AS §

REPRESENTATIVE OF THE ESTATE 8

OF WILTON F. SHELTON, §

DECEASED, CHARLIE SHEPPARD, §8

HERMAN D. SIKES, WILLIAM D._ §

SLATTERY, MARK DAVID 8

SPOELSTRA, CLAYTON D. 8

STATSNY, MELISSA C. STATSNY, §

GAYLA S. STATON, VALERIE §

STEVENSON, ELLA S. STIVERS, S

MARTHA J. STOROZYSZYN, RICK 8

L. STUART, MIKE SULLIVAN,

eae ON pea Ng eens rae

Resp. App. 3

ROBERT E. TEMPLIN, EMMETT

THOMAS, JR., TOMMY L. TILLEY,

BENJAMIN TINGLE, MARILYN J.

TRACEY, VERNON L. UNSELL,

RICARDO VALDEZ, LORETTA S.

VERNON, HELEN WALKER, GARY

WATSON, RANDY F. WIENS,

LEONARD WILLIAMS, MORTEN D.

WILLIAMS, PAUL J. WILLIAMS,

GLENDA WRIGHT, HERMAN

DALE WRIGHT, KENNETH L.

WRIGHT, RONNIE WRIGHT,

ALBERTA A. WYATT, JAMES D.

WYATT, AND JOHNNIE R. YORK

VS.

BIG THREE INDUSTRIES, INC.,

CHEMICAL SPECIALISTS &

DEVELOPMENT INC., E. I.

DUPONT de NEMOURS &

COMPANY, INC., GENERAL

ELECTRIC COMPANY, GTE

PRODUCTS CORP., HAYNES

INTERNATIONAL, INC., JESSOP

STEEL COMPANY, J. W. HARRIS

CO., INC., METALLURGICAL

TECHNOLOGIES INC., PRATT &

WHITNEY COMPANY, INC.,

THUNDERBIRD SALES COMPANY,

UNION CARBIDE CHEMICALS &

PLASTICS COMPANY, INC.

DMM LLP LL LP IP LP LN LN LN LN LP INL LN WL UN UN LI LP) IN LI IN UN UN I

PLAINTIFFS’ ORIGINAL PETITION

(Filed Nov. 13, 1992)

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiffs, and files this their Original

Petition complaining of the actions of Defendants, and for

Resp. App. 4

cause of action would respectfully show unto the Court

as follows:

Plaintiffs are residents of the State of Oklahoma.

II.

Defendant, Big Three Industries, Inc. is a Delaware

Corporation with its principal place of business in Texas

and may be served by serving its registered agent, Corpo-

rate Service Company, 100 Congress Avenue, Suite 1100,

Austin, Texas, 78701, by certified mail, return receipt

requested.

Defendant, Chemical Specialists & Development Inc.

is a Texas Corporation and may be served by serving its

registered agent, Steven R. Cooke, P. O. Box 687, Conroe,

Texas 77305, by certified mail, return receipt requested.

Defendant, E. I. DuPont de Nemours Company, Inc.

is a Delaware Corporation and may be served by serving

its registered agent, C. T. Corporation System, 350 North

St. Paul Street, Suite 2900, Dallas, Texas 75201, by certi-

fied mail, return receipt requested.

General Electric Company is a New York Corporation

and may be served by serving its registered agent, C. T.

Corporation System, 350 N. St. Paul Street, Suite 2900,

Dallas, Texas 75201, by certified mail, return receipt

requested.

Defendant, GTE Products Corp. is a Massachusetts

Corporation and may be served by serving its registered

Resp. App. 5

agent, C. T. Corporation System, 350 N. St. Paul Street,

Suite 2900, Dallas, Texas 75201, by certified mail, return

receipt requested.

Defendant, Haynes International, Inc. is a Delaware

Corporation and may be served by serving its registered

agent, C. T. Corporation System, 350 N. St. Paul Street,

Suite 2900, Dallas, Texas 75201, by certified mail, return

receipt requested.

Defendant, Jessop Steel Company is a Pennsylvania

Corporation and may be served by serving its registered

agent, Prentice Hall Corporation System, 400 N. St. Paul

Street, Dallas, Texas 75201, by certified mail, return

receipt requested.

Defendant, J. W. Harris Co., Inc is an Ohio Corpora-

tion and may be served by serving its registered agent, C.

T. Corporation System, 350 N. St. Paul Street, Suite 2900,

Dallas, Texas 75201, by certified mail, return receipt

requested.

Defendant, Metallurgical Technologies Inc. is a Texas

Corporation and may be served by serving its registered

agent, James B. Huddleston, 14436 Max Road, Pearland,

Texas 77581, by certified mail, return receipt requested.

Defendant, Pratt & Whitney Company Inc. is a for-

eign corporation doing business in the state of Texas.

Pratt & Whitney Company Inc. has not designated a

registered agent and as such may be served by serving

the Secretary of State by certified mail, return receipt

requested. The Secretary of State will forward the service

to Richard R. Burkhart, 1289 Blue Hills Ave., Bloomfield,

Resp. App. 6

Connecticut 06002, pursuant to Texas Civil Practice and

Remedies Code § 17,044,

Defendant, Thunderbird Sales Company is a foreign

corporation doing business in the State of Texaa, Thune

derbird Sales Company has not designated a registered

agent and as auch may be served by serving the Secretary

of State by certified mail, return receipt requested, The

Secretary of State will forward the service to William FB

Ritehie, PO, Box J0078, Oklahoma City, Oklahoma 79140,

pursuant to Texas Civil Practice and Remedies Code §

17,044,

Defendant, Union Carbide Chemicals & Plastics

Company, Inc, is a New York Corporation and may be

served by serving its registered agent, C. T. Corporation

System, 811 Dallas Avenue, Houston, Texas 77002, by

certified mail, return receipt requested.

Ill.

Venue is proper in Jefferson County, Texas pursuant

to § 15.037 of the Texas Civil Practices & Remedies Code

in that one or more of Defendants are foreign corpora-

tions with an agent or representative in Jefferson County,

Texas,

IV,

Plaintiffs are compelled to bring this action because

of the personal injuries and damages of Plaintiffa herein

tor toxic chemical exposure, Plaintiffa would show that

all Plaintiffs were exposed to hazardous chemicals,

a ee

Resp. App. 7

including, but not limited to cobalt, chrominum, cad>

mium, acetylene, ethanol and heptane while working for

the United States Air Force at Tinker Air Force Base in

Oklahoma City, Oklahoma, Plaintifta would show that

said chemicala were manufactured or provided by one or

more of the named Defendants, Plaintiffe would faethe

show that General Blectric Company and Pratt & Whitney

Company Ine, provided jet engines to Tinker Air Force

Kase which were worked on by the abovesreferenced

Plaintiffs, Bach Plaintiff listed above was exposed to the

dust and fumes of the jet engine and jet engine parts

These Plaintiffs worked on the jet engines by grinding,

reworking, and being generally exposed to the chemicals

produced by the jet engines and jet engine parts. The jet

engines emitted a significant amount of cobalt, chromium

and cadmium during the grinding, reworking and other-

wise modification of the engines, which were some of the

chemicals responsible for these Plaintiffs’ damages. Plain-

tiffs were also exposed to numerous other hazardous

chemicals while working at the air force base.

Plaintiffs would show that each of the above-refer-

enced Plaintiffs have been employed at Tinker Air Force

Base and were exposed to significant amounts of chemi-

cals, Plaintiffs were exposed to the chemicals without any

warning of the true dangerous nature of said chemicals

and their potential for causing adverse health effects

upon humana exposed to them, particularly over a long

period of time, Plaintitfa would ahow that auch chemi

cala, named above, were designed, formulated, manulac

tured and distributed by the aboveenamed Defendants;

Resp. App. 8

and they violated the terms and provisions of Section

402a and 402b of the Restatement of Torts (2nd),

The Defendants alao breached the expressed and

implied warranties of fitness and merchantability with

reapect to said products in that the products were not fit

for the purpose intended) and in other reapects were such

that the Defendants were liable under principles and

concepts of strict product liability, The atoresaid condi:

tions, detects and breaches of warranty were a proximate

and/or producing cause of the injuries to all Plaintiffs,

Vil.

Plaintiffs would further show that said Defendants

were negligent in the manner in which they designed,

formulated, manufactured and marketed said chemicals

as well as the jet engines manufactured, designed and

formulated by General Electric Company and Pratt &

Whitney Company Inc.; and that they were further negli-

gent in the manner in which they failed to properly test

said chemicals and jet engines before placing them in the

hands of Tinker Air Force Base employees; they were

further negligent in failing to warn and instruct the indi-

viduals working at Tinker Air Force Base, Plaintiffs

herein, of the proper way to cope with said chemicals

and/or the proper way to protect one’s body against said

chemicals and/or the toxicity of said chemicals and/or

meana of preventing health effecta caused by those chem:

ieala and working around the chemicala; how to utilize

prophylactic gear) and how, in other respects, to either

}

‘

hich PER iE AEN ae

Resp. App. 9

eliminate or reduce the hazards from exposure to said

chemicals, That such negligence was a proximate cause of

the exposure in question and the enauing damages.

Vill

By the negligent actions as described in paragraph

VI, these Defendants negligently inflicted mental diatters

on these Plaintiffs, Plaintiffs plead a cause of action for

negligent infliction of mental distress

IX,

Plaintiffs would further show that by reason of the

exposure of the Plaintiffs to such chemicals, they were

caused to suffer and sustain irreversible brain damage,

liver disease, tumors, and other damages to their body

and person.

Plaintiffs would further plead a cause of action for

fear of brain disorders, cancer, and other diseases as a

result of the exposure to the above-referenced chemicals

XI,

Plaintiffs further sue all Defendants for the Phyatcal

pain and suffering that Plaintiffa have suffered aa a feaull

of the injuries they sustained, Additionally, Plainttts suc

for recovery of damages herein for physical pan and

suttering which they will endure for the remainder of

Resp. App. 10

their lives in an amount in excess of the minimum juris-

dictional limits of this Court.

XI,

Plaintiffs would show that they sustained mental

anguish of an almost incaleulable nature including the

obvious mental anguish which necessarily accompanies

any type of brain disorder, and fear of contracting brain

dinordera, cancer and other cdiveases as a result of thei

exposure to the aboverreferenced chemicals, Phaiatitts

alwo ave all Defendanta for the mental anguish they will

suffer for the remainder of their lives th an amount in

excess of the minimum jurisdictional limite of this Court

Accordingly, Plaintiffs will request that the jury consider

a sum of money which will reasonably compensate Plain-

tiffs for their damages resulting from the occurrence in

question as follows:

1) Physical pain which the Plaintiffs have suffered up

until the time of trial;

~—

Mental anguish which the Plaintiffs have suffered up

until the time of trial;

3) Reasonable expenses for necessary medical and hos-

pital care received by Plaintiffs in the past for treat:

ment of theit injuries resulting from the occurrence in

question,

1) Loss of earnifigs whieh Plaintiffa have sustained up

until the Hime of trial

5) Physical typaipment wiieh Plaintiffa have autfered

up vntil the time of trial

6) Distigurement which Plaintifis have suffered up until

the time of trial

EEE

Resp. App. 11

XIII.

The jury will be asked to consider the following

elements of damages which Plaintiffs will sustain in the

future from the time of trial as a result of the incident

made the basis of this lawsuit, subject to Plaintiffs’ proof

by preponderance of the evidence

1) Physical pain and suffering whieh Plaintiffa wilh in

reasonable probability, sutter in the future

{) Mental anguish which Plaintiff Will, In reasonable

probability, auffer in the future

)) Reasonable expenses for necessary medical and hos

pital care whieh will, in reasonable medical proba

bility, be required by Plaintiffs in the future;

4) The loss reduction in earning capacity which Plain-

tiffs will, in reasonable probability, suffer in the

future;

5) The damages which result from the physical impair-

ment which Plaintiffs will continue to suffer in the

future and the inability to perform those tasks and

services which they ordinarily would perform in the

future;

6) The disfigurement whieh Plaintiffs will continue to

suffer in the future

XIV

Therefore, Plaintiffa will prove Upon trial of this

rane, they have sustained damages as a direct and PFONI

mate result of the negligence of Defendants herein and

or the violations of the applicable products liability laws

Resp. App. 12

were a producing and or proximate result of such dam-

ages and request that judgment be entered against all

Defendants in the amount proven at the time of trial.

XV,

Plaintitis would show that Defendants were aware of

the latent defects in their chemicals and jet engines.

Therefore, this conscious decision to permit the chemicals

and jet engines to be used by workers at Tinker Alp Poree

Hane without adequate warnings oF precautions const)

tutes a wanton, willful disregard for the rights of Plaine

tiffy whieh renders Defendants liable to Plaintiff for

exemplary damages, The amount of exemplary damages

is in excess of the minimum jurisdictional limits of this

Court.

XVI.

Plaintiffs further claim prejudgment interest at the

maximum rate allowed by law.

XVII.

Plaintiffs’ damages sought herein exceed the mini-

mum jurisdictional amounts necessary to place jurisdic:

tion on this Honorable Court and all damages sought

againat all Defendants,

WHEREPORE, PREMISES CONSIDERED, Plaintiffs

pray that Defendants be elted to appear and anawer

herein as the law directs, and that upon final hearing,

Plaintiffs have and recover judgment of and from the

Defendant, both jointly and severally, in the sum in

Resp. App. 13

excess of the minimum jurisdictional amounts of this

Court, in addition to costs of court, prejudgment and

post-judgment interest which may be authorized by law,

and the Plaintiffs have such other and further relief, both

general and special, at law and in equity, to which Plain-

tiffs may be justly entitled.

Respectfully submitted,

WELLER, WHEELUS & GREEN

550 Fannin, Suite 500

Beaumont, Texas 77701

(409) 838-0101

(409) 838-6780 (Fax)

BY /s/ Mitchell A. Toups

MITCHELL A. TOUPS

State Bar No. 20151600

B. ADAM TERRELL

State Bar No. 19790900

ATTORNEYS FOR PLAINTIFFS

JURY DEMAND

Plaintiff respectfully requests a trial by jury.

BY /s/ Mitchell A. Toups

MITCHELL A. TOUPS

Resp. App. 14

CAUSE NO. B 144,313

JAMES E. AKIN, RICHARD G.

ARELLANO, CHARLES L.

BALDWIN, ANNIE M. BARNES,

MARCIA BRANNOCK, DELTON

BROWN, GARY BURWELL,

TIMOTHY CARAWAY, THOMAS

W. CLARK, DAVID CLAUSEN,

RICHARD COTEY, CONNIE

COTTRELL, RONNIE D.

COTTRELL, STEVEN L. COY,

HUGH CROW, NATHAN

D’AMICO, EDDIE R. DANNA,

JR., DONNA M. DAVIS,

LEANDRA DEMOSS, ORVILLE

DESHIELDS, LOUIS R.

DICKINSON, OLLIE

DILLISHAW, JR., DANNY

DRISKILL, EDDIE DUCK, JR.,

DANNY DUNN, JENNY L.

DUREN, BILL R. DURINGTON,

DORIS BROWN DURLIN,

STEPHEN RAY DUTY, LEON

EALON, LARRY ELLIOTT,

DEBRA M. EMERICH, JANETTE

K. FARLEY, LLOYD FREED, JON

G. GABBARD, DEBRA HALL

GABBARD, LINDA D.

GATEWOOD, LANCE GILLEY,

MAX R. GLOVER, WENDELL

GLOVER, JAMES GOFF,

WENDELL GOMEZ, JOHN C.

GOULD, PHYLLIS J. GOULD,

REGINA G. GRISSAM,

KENNETH O. HART, MICHAEL

MMMM MMMMMMMMMMMOMMMOMMMMMMMmMMMmMm MMMM

IN THE

DISTRICT

COURT OF

JEFFERSON

COUNTY, TEXAS

Resp. App. 15

HAWKINS, EDGAR HOUSTON,

GERALD HOUSTON,

VALENCIA HOWELL, RALPH V.

ICE, RAY IRVAN, ERIC

LJANOUSEK, DAVID KEISER,

BILLY B. KING, LARRY D.

LIDELL, DAVID LOVE, ROBERT

C. LOVE, JIMMY LYNCH,

THOMAS MARSHALL, JAMES

MCLANE, MICHAEL D.

MOWLES, JEFFREY MURRAY,

MELVIN E. NORTON,

ZENEPHOR OVERSTREET,

JAMES M. OWEN, TERRY W.

OXLEY, RONALD K. PEOPLES,

MICHAEL PHILLIPS, LOUISE

PICKARD, MARIE L. PLUMLEE,

PHILLIP PLUMLEE, RICK

REAMES, SARAH REESE, JACK

D. RHODEN, OTHA L.

RHODEN, WAYNE

RICHARDSON, DOROTHY

RIMBOLD, TIJUANA

ROBINSON, ALINE ROCKWELL,

CHARLON S. ROGERS,

SANDRA ROLLAND, MARLYS

RONE, TONY E. RUBLE, MARY

SAYRE, REATHA R. SCHLEGEL,

GLORIA SHELTON AS

REPRESENTATIVE OF THE

ESTATE OF WILTON F.

SHELTON, DECEASED,

CHARLIE SHEPPARD, HERMAN

D. SIKES, TERRY SIMPSON,

60TH JUDICIAL

DISTRICT

PD DD Un UD an in UD an in un Un un en cn

Resp. App. 16

WILLIAM D. SLATTERY, LARRY

SMITH, KENNETH SNYDER,

JESS STANLEY, CLAYTON D.

STASTNY, MELISSA C.

STASTNY, GAYLE S. STATON,

MARTHA J. STOROZYSZYN,

RICK L. STUART, JAMES

SYKES, EMMETT THOMAS, JR.,

BENJAMIN TINGLE, MARILYN

J. TRACEY, GARY VESSELL,

HELEN WALKER, WILLIAM

WARD, NOREEN WELCH,

GEORGE WEST, RANDY F.

WIENS, LEONARD WILLIAMS,

MORTEN D. WILLIAMS, LINDA

WILLIS, GLENDA WRIGHT,

HERMAN DALE WRIGHT,

KENNETH L. WRIGHT, ALBERT

A. WYATT, JAMES D. WYATT,

JOHNNIE R. YORK,

LOIS AYERS, GARY BLEDSOE,

TERRY BRUNER, FLOYD

BURSELSON, CHRISTY

CANNON, MARK CHISHOLM,

BILLIE COCHRAN, DELORES

COLEY, VIRGIL W. CLARK,

JAMES CROOM, MARY

DODSON, SAUNDRA

DUNCAN, JIMMY EASTON,

DONALD FLATT, RANDELL

GREEN, JAMES HENDERSON,

DAVID HIGGINS, CATHY

KALER, DEBRA KELLOGG,

RUSSELL KINNEY, PHYLLIS

KNOTT, LANDY LANCASTER,

JERRY LUM,

MMMM MMNMMMMOMMMMMMMMMmMmMMmMm MMMM Mm MMMM MM WT UT MM

Resp. App. 17

JACK MCSWAIN, JAMES

MESSICK, DANIEL MOODY,

JACK OBLANDER, PATRICIA

ORR, DAVID PARRIS, HELEN

PAYNE, VIRGINIA PERRY,

WINFRED PLUNKETT, DEBRA

SANDERS, THOMAS SANDERS,

ORIN SHAW, PAUL STEIN,

ZEEFFIE SWANEGAN, ROBERT

L. SWARTZ, GEORGE THORPE,

LONNIE TRAMMEL, STANLEY

WALKUP, PEGGY WALTON,

CLINTON WILBURN, DANIEL

WILLIAMS, RICHARD

WILLIAMS, AND BARBARA

YOTT

DEBRA COY, DAVID DESELMS,

WILLIAM DUNLAP, MARILYN

GAITLYN, JIMMY GATEWOOD,

FRANCES HINDS, LAVEDA

MONTAGUE, FRED STOCKTON,

RONALD WILLIAMS, AND

ROSETTA WILLIAMS

VS.

BIG THREE INDUSTRIES, INC.,

CHEMICAL SPECIALISTS &

DEVELOPMENT INC., E. I.

DUPONT de NEMOURS &

COMPANY, INC., GENERAL

ELECTRIC COMPANY, GTE

PRODUCTS CORP., HAYNES

INTERNATIONAL, INC., JESSOP

STEEL COMPANY, J. W.

HARRIS CO., INC.,

METALLURGICAL

MMMM IN WM WM) UN UM UM UW WM MMM MMM UN) WH) uM) MMM MM MM MM WM) a

Resp. App. 18

TECHNOLOGIES INC., PRATT

& WHITNEY COMPANY, INC.,

THUNDERBIRD SALES

COMPANY, UNION CARBIDE

CHEMICALS & PLASTICS

COMPANY, INC., UNITED

TECHNOLOGIES

CORPORATION

MMMM MmMmMD

PLAINTIFFS’ THIRD AMENDED

ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiffs, and files this their Second

Amended Original Petition complaining of the actions of

Defendants, and for cause of action would respectfully

show unto the Court as follows:

Plaintiffs are residents of the State of Oklahoma and

are as follows:

James Akin, Richard Arellano, Charles Baldwin,

Annie M. Barnes, Marcia Brannock, Delton Brown, Gary

Burwell, Timothy Caraway, Thomas W. Clark, David

Clausen, Richard Cotey, Connie Cottrell, Ronnie Cottrell,

Steven L. Coy, Hugh Crow, Nathan D’Amico, Eddie R.

Danna, Jr., Donna M. Davis, Leandra DeMoss, Orville

DeShields, Louis R. Dickinson, Ollie Dillishaw, Jr., Danny

Driskill, Eddie Duck, Jr., Danny Dunn, Jenny L. Duren,

Bill R. Durington, Doris Brown Durlin, Stephen Ray Duty,

Leon Ealon, Larry Elliott, Debra A. Emerich, Janette Far-

ley, Lloyd Freed, Jon G. Gabbard, Debra Hall Gabbard,

Linda D. Gatewood, Lance Gilley, Max R. Glover, Wendell

Resp. App. 19

Glover, James Goff, Wendell G: mez, John C. Gould,

Phyllis J. Gould, Regina Grissam, Kenneth O. Hart,

Michael Hawkins, Edgar Houston, Gerald Houston, Val-

encia Howell, Ralph V. Ice, Ray Irvan, Eric L. Janousek,

David Keiser, Billy B. King, Larry D. Liddell, David Love,

Robert C. Love, Jimmy Lynch, Thomas Marshall, James

McLane, Michael D. Mowles, Jeffrey Murray, Melvin E.

Norton, Zenephor Overstreet, James M. Owen, Terry W.

Oxley, Ronald K. Peoples, Michael Phillips, Louise Pick-

ard, Marie L. Plumlee, Phillip Plumlee, Rick Reames,

Saran Reese, Jack D. Rhoden, Otha Rhoden, Wayne Rich-

ardson, Dorothy Rimbold, Tijuana Robinson, Aline Rock-

well, Charlon S. Rogers, Sandra Rolland, Marlys Rone,

Tony E. Ruble, Mary Sayre, Reatha R. Schlegel, Gloria

Shelton as Representative of the Estate of Wilton F. Shel-

ton, Deceased, Charlie Sheppard, Herman D. Sikes, Terry

Simpson, William D. Slattery, Larry Smith, Kenneth

Snyder, Jess Stanley, Clayton D. Stastny, Melissa C.

Stastny, Gayla S. Staton, Martha J. Storozyszyn, Rick L.

Stuart, James Sykes, Emmett Thomas, Jr., Benjamin Tin-

gle, Marilyn J. Tracey, Gary Vessell, Helen Walker, Wil-

liam Ward, Noreen Welch, George West, Randy F. Wiens,

Leonard Williams, Morten D. Williams, Linda Willis,

Glenda Wright, Herman Dale Wright, Kenneth L. Wright,

Albert A. Wyatt, James D. Wyatt, Johnnie R. York, Lois

Ayers, Gary Bleldsoe, Terry Bruner, Floyd Burelson,

Christy Cannon, Mark Chisholm, Billie Cochran, Delores

Coley, Virgil W. Clark, James Croom, Mary Dodson, Saun-

dra Duncan, Jimmy Easton, Donald Flatt, Randell Green,

James Henderson, David Higgins, Cathy Kaler, Debra

Kellogg, Russell Kinney, Phyllis Knott, Landy Lancaster,

Jerry Lum, Jack McSwain, James Messick, Daniel Moody,

Resp. App. 20

Jack Obander, Patricis Orr, David Parris, Helen Payne,

Virginia Perry, Winfred Plunkett, Debra Sanders, Thomas

Sanders, Orin Shaw, Paul Stein, Zeefie Swanegan, Robert

L. Swartz, George Thorpe, Lonnie Trammell, Stanley

Walkup, Peggy Walton, Clinton Wilburn, Daniel Williams,

Richard Williams, Barbara Yott, Debra Coy, David

DeSelms, William Dunlap, Marilyn Gaitlyn, Jimmy Gate-

wood, Frances Hinds, Laveda Montague, Fred Stockton,

Ronald Williams and Rosetta Williams.

Il,

Defendant, Big Three Industries, Inc. is a Delaware

Corporation with its principal place of business in Texas

and has previously been served and is before this court

for all

Defendant, Chemical Specialists & Development Inc.

is a Texas Corporation and has previously been served

and is before this court for all purposes.

Defendant, E. I. DuPont de Nemours Company, Inc.

is a Delaware Corporation and has previously been

served and is before this court for all purposes.

General Electric Company is a New York Corporation

and has previously been served and is before this court

for all purposes.

Defendant, GTE Products Corp. is a Massachusetts

Corporation and has previously been served and is before

this court for all purposes.

Defendant, Haynes International, Inc. is a Delaware

Corporation and may be served with process by serving

Resp. App. 21

its registered agent C. T. Corporation System, 350 N. St.

Paul Street, Suite 2900, Dallas, TX, 75201,

Defendant, Jessop Steel Company is a Pennsylvania

Corporation and has previously been served and is before

this court for all purposes.

Defendant, J. W. Harris Co., Inc. is an Ohio Corpora-

tion and has previously been served and is before this

court for all purposes.

Defendant, Metallurgical Technologies Inc. is a Texas

Corporation and has previously been served and is before

this court for all purposes.

Defendant, Pratt & Whitney Company Ine. is a for-

eign corporation doing business in the state of Texas and

has previously been served and is before this court for all

purposes,

Defendant, Thunderbird Sales Company is a foreign

corporation doing business in the State of Texas and has

previously been served and is before this court for all

purposes.

Defendant, Union Carbide Chemicals & Plastics

Company, Inc. is a New York Corporation and has previ-

ously been served and is before this court for all pur-

poses.

Defendant, United Technologies Corporation is a for-

eign corporation doing business in the State of Texas and

has previously been served and is before this court for all

purposes.

Resp. App. 22

Pursuant to agreement with all defense counsel this

petition does not need to be reserved on the Defendants

even with the addition of the Plaintiffs hereto.

Venue is proper in Jefferson County, Texas pursuant

to § 15.037 of the Texas Civil Practices & Remedies Code

in that one or more Defendants are foreign corporations

with an agent or representative in Jefferson County,

Texas,

IV.

Plaintiffs are compelled to bring this action because

of the personal injuries and damages of Plaintiffs herein

for toxic chemical and metal exposure. Plaintiffs would

show that all Plaintiffs were exposed to hazardous chemi-

cals, including, but not limited to cobalt, cadmium and

chromium, as well as various solvents and other products

including acetylene, freon TF solvent, freon PCA, TRV

108, RTV 106, copper, iron, lanthanum, manganese,

molybdenum, nickel, silicon, vanadium, tungsten, Zir-

conium, yttrium, aluminum, titanium, boron, columbium,

tantalum, silver, zinc, tin, PWA1317, PWA1306, PWA1307

D, carbon, trichloromethane, ADH powder,

grizeldalloy-0001, AMS 4782, haynes 188, while working

at Tinker Air Force Base in Oklahoma City, Oklahoma.

Plaintiffs would show that said chemicals, solvents and

metals were manufactured or provided by one or more of

the named Defendants. Plaintiffs would further show that

General Electric Company, Pratt & Whitney Company

Inc., and United Technologies Corporation provided jet

» (ii eee,

a 2 ab held bed Rais Metals Me

Re Dee eee ee ee ee eS

Resp. App. 23

engines to Tinker Air Force Base which were Worked orn

and repaired by the above-referenced Plaintig. paow

Plaintiff listed above was exposed to the dus, solvents

and fumes of the jet engine and jet engine Parts These

Plaintiffs worked on the jet engines by grindin,, | tework-

ing, and being generally exposed to the met tals produced

by the jet engines and jet engine parts during 44), bpeta:

tion as well as the solvent and chemicals use 4 in thal

work. The jet engines emitted a significant

cobalt, chromium and cadmium during the

reworking and otherwise modification of the Ua ah),

Plaintiffs were also exposed to other hazardous } }\))\)\)) |

and solvents while working at the air force ba

SHHHHE Hi

PHA HIHe

Plaintiff would show that each of the ab))\ i {i

enced Plaintiffs have been employed at Tinker \\\) TS

Base and were exposed to significant amounts \Y) Y)?"

cals, solvents and metals. Plaintiffs were expos” a

chemicals, solvents and metals without any ws &

the true dangerous nature of said chemicals, sol!" “™

metals and their potential for causing adver" health

effects upon humans exposed to them. Plaintif® ™ ould

show that such chemicals, named above, were /#*!8he4

formulated, manufactured and distributed by ti’ ahave

named Defendants; and they violated the terms “!\! Pi

visions of Section 402a and 402b of the Restat '{\"{\! (!

Torts (2nd).

~ m Be " " ve ex

- ‘ " 's " ’ m an "

‘ ' ‘

> s >? 7+ ~~ * aa , -, > > ¢ °<

> > Ms >

> >? > >? ; , ,,* _ ’ > ~~? , _ .

; ;

. 4% ; ‘+ J ~- : ; > , ,} ; _ : ’ ’

> >

; ; 14) ; HH We } ‘ bensis ; bt + ‘

; '

' 7h ' f #} biidd? ; ' ; hitige

i} tha iy 7 i | i} : oe ’ ’ }

’ ’ 11 : ’ 7 ’ ’

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: + ' ‘i } — F 4 ere ia thet ti :

istrict the inal haual

R a m " —— ore

» : ey “~ 5 Ss cy /~ . .

. "

nESCTIDEG IN patagraph VIL, these Defendants negligent

| ted ments Wictroce + thon, | hitte | Nhitte

; sd ~iyos , arting bine wa jwoent inf] turye + tows

: Kits

; troce frintar t+ tnhaie « rp ives HH Uie jidtie

jon then Ty feaHand pre hidpd

Pye ty Hh) ) | Hyatt i i

} | Pye } | ; ! | 1]

1 } 1] ’ } 11 ’ ’

’ : ,\) ' : ’

’ ' ’ ’

“\ \ \ .

. y ih ’ . . .

riaintit ruirther uae ill VMefendant rere tive r\ ; 7

' ’

Meattt afl | Litt Pitip that riaintift nave Mitte ia ii Litt

t thy eiihadis Lh \ Uotaified Vaaditi fiabh\ riaintith i

' ' i\ '\ i; LA ITI AS hel hii i LAbL\ ' Lich ’ | '

: ’ ’ i} Te : ,

ee a a re ~

Resp. App. 27

their damages resulting from the occurrence in question

as follow:

1) Physical pain which the Plaintiffs have suf-

fered up until the time of trial;

2) Mental anguish which the Plaintiffs have

suffered up until the time of trial;

3) Reasonable expenses for necessary medical

and hospital care received by Plaintiffs in

the past for treatment of their injuries

resulting from the occurrence in question;

4) Loss of earnings which Plaintiffs have sus-

tained up until the time of trial;

5) Physical impairment which Plaintiffs have

suffered up until the time of trial;

Disfigurement which Plaintiffs have suf-

fered up until the time of trial.

XV.

The jury will be asked to consider the following

elements of damages which Plaintiffs will sustain in the

future from the time of trial as a result of the incident

made the basis of this lawsuit, subject to Plaintiffs’ proof

by preponderance of the evidence:

Physical pain and suffering which Plaintiffs

will, in reasonable probability, suffer in the

future;

Mental anguish which Plaintiffs will, in rea-

sonable probability, suffer in the future;

Reasonable expenses for necessary medical

and hospital care which will, in reasonable

Resp. App. 28

medical probability, be required by Plaintiffs

in the future;

4) The loss reduction in earning capacity

which Plaintiffs will, in reasonable proba-

bility, suffer in the future;

5) The damages which result from the physical

impairment which Plaintiffs will continue to

suffer in the future and the inability to per-

form those tasks and services which they

ordinarily would perform in the future;

6) The disfigurement which Plaintiffs will con-

tinue to suffer in the future.

7) The reasonable expenses for medical mon-

itoring of all Plaintiffs for the remainder of

the Plaintiffs’ natural lives.

XVI.

Therefore, Plaintiffs will prove upon trial of this

cause, they have sustained damages as a direct and proxi-

mate result of the negligence and gross negligence of

Defendants herein and/or the violations of the applicable

products liability laws were a producing and or proxi-

mate result of such damages and request that judgment

be entered against all Defendants in the amount proven

at the time of trial.

XVII.

Plaintiffs would show that Defendants were aware of

the latent defects in their products. Therefore, this con-

scious decision to permit the products to be used by

Resp. App. 29

workers at Tinker Air Force Base without adequate warn-

ings or precautions constitutes a wanton, willful disre-

gard for the rights of Plaintiffs which renders Defendants

liable to Plaintiffs for exemplary damages. The amount of

exemplary damages is in excess of the minimum jurisdic-

tional limits of this Court.

XVIII.

Plaintiffs further claim prejudgment interest at the

maximum rate allowed by law.

XIX.

Plaintiffs’ damages sought herein exceed the mini-

mum jurisdictional amounts necessary to place jurisdic-

tion on this Honorable Court and all damages sought

against all Defendants.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs

pray that Defendants be cited to appear and answer

herein as the law directs, and that upon final hearing,

Plaintiffs have and recover judgment of and from the

Defendant, both jointly and severally, in the sum in

excess of the minimum jurisdictional amounts of this

Court, in addition to costs of court, prejudgment and

post-judgment interest which may be authorized by law,

and the Plaintiffs have such other and further relief, both

Resp. App. 30

general and special, at law and in equity, to which Piain-

tiffs may be justly entitled.

Respectfully submitted,

WELLER & GREEN, L.L.P.

550 Fannin, Suite 500

Beaumont, Texas 77701

(409) 838-0101

(409) 838-6780 (Fax)

BY /s/ Mitchell A. Toups

MITCHELL A. TOUPS

State Bar No. 20151600

B. ADAM TERRELL

State Bar No. 19790900

ATTORNEYS FOR PLAINTIFFS

JURY DEMAND

Plaintiff respectfully requests a trial by jury.

BY /s/ Mitchell A. Toups

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

above and foregoing instrument was delivered to all

counsel of record by regular and/or certified mail, return

receipt requested, on this the 6th day of August, 1993.

/s/ Mitchell A. Toups

MITCHELL A. TOUPS

edt ED IE AB cone LET GE PIN Ott Bie RE IR TUES nia

Resp. App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES E. AKIN, ET AL., §

PLAINTIFFS, :

bi § CAUSENO. _

BIG THREE INDUSTRIES, INC. §

ET AL., §

DEFENDANTS. :

NOTICE OF REMOVAL

TO THE HONORABLE JUDGES OF THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF TEXAS, BEAUMONT DIVISION:

PLEASE TAKE NOTICE that Defendant General Elec-

tric Company (“GE”), pursuant to 28 U.S.C. §§ 1441, 1442

and 1446 hereby file this Notice of Removal of this civil

action to the United States District Court for the Eastern

District of Texas from the District Court of Jefferson

County, Texas. This Court has original subject matter

jurisdiction under 28 U.S.C. § 1331 in that this action

arose “under the Constitution, laws or treaties of the

United States.” Jurisdiction may also be founded on 28

U.S.C. § 1442(a)(1) as the state court action was com-

menced against GE as a person acting under authority of

an officer of the United States. The basis for removal

follows.

Resp. App. 32

1.0 BACKGROUND

1.1 Plaintiffs served their Original Petition on GE on

December 28, 1992. The suit was brought in the District

Court of Jefferson County, Texas, 60th Judicial District,

Cause No. B-144,313 against GE and eleven other defen-

dants as follows: Big Three Industries, Inc., E.I. du Pont

de Nemours Company, Inc., Union Carbide Chemicals &

Plastics Company, Inc., Chemical Specialists & Develop-

ment Inc., GTE Products Corp., Haynes International,

Inc., Jessop Steel Company, J. W. Harris Co., Metallurgical

Technologies, Inc., and Thunderbird Sales Company. The

action is styled James E. Akin, et al. v. Big Three Industries,

Inc. et al. United Technologies Corporation was subse-

quently added as a defendant. A true and correct copy of

the Citation and Original Petition, the First Amended

Petition, the Second Amended Petition, and the Third

Amended Petition are attached hereto as Exhibits A, B, C

and D respectively, and constitute all process, pleading,

and orders served on GE in the action.

1.2 Defendants, including GE, received answers

from the Plaintiffs to the Defendants’ First Set of Inter-

rogatories on July 16, 1993. The information provided in

the interrogatories has enabled GE to ascertain that the

action is removable, and thus this Notice is being timely

filed within thirty (30) days after receiving the interroga-

tories, pursuant to 28 U.S.C. § 1446(b). Under § 1446(b),

where a case is not originally removable, “the time for

removal begins only after defendant receives a copy of a

pleading, motion, or other paper which shows that the

action has become removable. . . . Thus the defendant

does not have to speculate as to facts forming the basis

for removal.” Jong v. General Motors Corp., 359 F.Supp.

ne eT

Resp. App. 33

223, 226 (N.D. Calif. 1973). Further, answers to discovery

requests such as interrogatories may be “other papers”

under § 1446(b). See Bonnell v. Seaboard Air Line Railroad

Co., 202 F. Supp. 53, 54 (N.D. Fl. 1962) (holding that

depositions and requests for admissions in the state court

proceeding may be “other papers” for purposes of 28

U.S.C. § 1446(b)).

1.3 It would appear that the information disclosed

by Plaintiffs’ answers to interrogatories was also the first

demonstration of removability as to any of the other

twelve defendants. Within thirty days from service of the

answers, GE has obtained the consent of these defendants

pursuant to 28 U.S.C. § 1441(a). See Exhibit E, attached.

2.0 FEDERAL QUESTION JURISDICTION (§ 1331)

2.1 Plaintiffs’ answers to interrogatories disclosed

to the Defendants that all plaintiffs are civilian employees

of the Department of the Air Force, and that all their

duties were performed within the boundaries of Tinker

Air Force Base (“AFB”), Oklahoma City, Oklahoma. Plain-

tiffs’ have alleged injuries involving exposure to certain

chemicals. The interrogatories also identify the specific

chemicals involved.

2.2 Removal is proper under § 1441(a) on the basis

of a substantial federal question within the meaning of 28

U.S.C. § 1331. Personal injury sanctions arising form inci-

dents occurring on federal enclaves may support district

court jurisdiction under § 1331 and therefore arise under

the Constitution. See Willis v. Craig, 555 F.2d 724, 726 (9th

Cir. 1977); Mater v. Holey, 200 F.2d 123, 125 (5th Cir. 1952).

Resp. App. 34

2.3 Plaintiffs’ answers to interrogatories indicate

that exposures took place solely within the confines of

Tinker AFB. Such an Air Force base is a federal enclave

subject to federal statutory and common law, and federal

regulations.

3.0 SUITS AGAINST PERSONS ACTING UNDER OFFI-

CERS OF THE USS.

3.1 An additional basis for removal is founded on

28 U.S.C. § 1442(a)(1) as the state court action involves

GE-as a person acting under the authority of the Secretary

of the Air Force and his delegee, the contracting officer

on the jet engine contracts. The Plaintiffs’ answers to

interrogatories disclose the required nexus between the

claimed injuries and the establishment of the mainte-

nance procedures for military jet engines on the base at

Tinker AFB. The design, production, and maintenance of

jet engines was pursuant to contracts, each of which was

executed by an officer of the United States.

3.2 The Air Force included detailed design, produc-

tion and maintenance specifications as part of the con-

tracts. GE was at all times acting under the authority of

an officer of the United States in designing, manufactur-

ing and establishing maintenance procedures for all of

the jet engines identified in interrogatories as the ones to

which the plaintiffs claim exposure. As established by

Plaintiffs’ answers to interrogatories, maintenance on the

engines for which plaintiffs’ claim injury took place

entirely at Tinker AFB, a U.S. Military installation at

which the repair of jet engines is accomplished by per-

sons such as plaintiffs pursuant to contracts executed and

Resp. App. 35

orders given by officers of the United States Air Force.

Further, GE intends to raise the government contractor

defense established in the case of Boyle v. United States

Technologies Corp., 487 U.S. 500 (1988). GE has therefore

met the requirements for removal based on a suit against

a person acting under authority of a federal officer.

WHEREFORE, Defendant General Electric Company,

pursuant to these statutes and in conformance with the

requirements of 28 U.S.C. § 1446, removes this action for

trial to this Court on this 12th day of August 1993.

Respectfully submitted,

By /s/ Samuel E. Stubbs

Samuel E. Stubbs

State Bar No. 19434500

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Telephone: (713) 651-5151

Telecopier: (713) 651-5246

ATTORNEY-IN-CHARGE FOR

GENERAL ELECTRIC COMPANY

CERTIFICATE OF SERVICE

This Notice of Removal was served on the following

counsel of record in compliance with Rule 5 of the Fed-

eral Rules of Civil Procedure on August 12, 1993.

Hubert Oxford Kent M. Adams

Benckenstein, Oxford Adams, Coffey & Duesler

& Johnson P.O. Box 7505

P.O. Drawer 150 Beaumont, Texas 77726

Beaumont, Texas 77704

yd Ve ‘

Resp. App. 36

Gerald L. Bracht

David P. Griffith

Mayor, Day, Caldwell

& Keeton

700 Louisiana, Suite 1900

Houston, Texas 77002

Bill Maynard

Bierne, Maynard &

Parsons

1300 Post Oak Blvd.

Suite 2400

Houston, Texas 77056

Gerald Flatten

Reinstra, Dowell &

Splatten

470 Orleans, Suite 1010

Beaumont, Texas 77701

Richard L. Josephson

Baker & Botts

910 Louisiana, 38th Floor

Houston, Texas 77002

Mitchell A. Toups

Weller, Wheelus & Green

550 Fannin, Suite 500

Beaumont, Texas 77701

Martin L. Mayo

Giessel, Stone, Barber

& Lyman

909 Fannin, Suite 2700

Houston, Texas 77010

Arthur R. Almquist

Mehaffy & Webber

500 Dallas, Suite 1200

Houston, Texas 77002

M. C. Carrington

Mehaffy & Webber

2615 Calder

Beaumont, Texas 77704

Donald F. Maierson

Kahn & Maierson

1914 N. Memorial Way

Houston, Texas 77007

James B. Huddleston

Metallurgical Technologies

14436 Max Road

Pearland, TX 77581

/s/ Samuel E. Stubbs

Samuel E. Stubbs

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Re a PR ee eS OEE eee

GAS ODL T EL AG EAGAN ER ie ZL AAA Ih ST PILI

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Resp. App. 37

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES E. AKIN, ET AL. §

i § C.A. NO.

BIG THREE INDUSTRIES, § 1:93CV82

INC., ET AL. §

PLAINTIFFS’ MOTION TO REMAND

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiffs herein, and file this their

Motion to Remand, pursuant to 28 U.S.C. § 1447(c) and in

support thereof would respectfully show unto the Court

the following:

Plaintiffs filed suit in the 60th Judicial District Court

of Jefferson County, Texas on or about November 13, 1992

alleging various acts, omission and wrongdoing of all

Defendants. Plaintiffs asserted claims in Texas state court

and based their right to recover damages against the

Defendants under Texas state law. The Plaintiffs did not

assert any cause of action under any federal statute or

federal common law. On or about August 12, 1993, Defen-

dants filed a Notice of Removal of the Plaintiffs’ state

court action over ten (10) months after the original filing

of the lawsuit in state court.

Resp. App. 38

Federal jurisdiction is determined from the contents

of “Plaintiffs’ Complaint as it stands at the time the

Petition for Removal is filed and the case seeks entry into

the federal system.” 14A, Charles A. Wright and Arthur

R. Miller, Federal Practice and Procedure, Sec. 3722. See

also, Pullman Co. v. Jenkins, 305 U.S. 534, 83 L.Ed. 334, 59

S.Ct. 347, 349 (1939); Great Northern Ry. Co. v. Alexander,

245 U.S. 276, 38 S.Ct. 237 (1918); Henry Carter, 618 F.2d

1093, 1101 (Sth Cir. 1980) cert. denied 101 S.Ct. 1410;

Brown v. Southwestern Bell, 901 F.2d 1250, 1254 (5th Cir.

1990). The burden is upon the removing defendant to

establish that such removal is proper. Laughlin v. Pruden-

tial Ins. Co., 882 F.2d 187, 190 (5th Cir. 1989). All doubts

against removal must be resolved in favor of the party

seeking remand and against the party who removed the

case. Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).

The Supreme Court has established a principal to

restrict and limit the removal jurisdiction of the federal

courts. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61

S.Ct. 868, 872 (1941). In Shamrock, Justice Stone stated for

the court:

Not only does the language of the Act of 1887

evidence the congressional purpose to restrict

the jurisdiction of the federal courts on removal,

but the policy of the successive acts of Congress

regulating the jurisdiction of federal courts is

one calling for the strict construction of such

legislation. The power reserved to the states

under the Constitution to provide the deter-

mination of controversies in their courts, may be

Resp. App. 39

restricted only by action of Congress in confor-

mity to the Judiciary Articles of the Constitu-

tion. “Due regard for the rightful independence

of the state government, which should actuate

federal courts, requires that they scrupulously

confine their own jurisdiction to the price limits

which the state has defined.”

Sheets, 313 U.S. 108-109. See also, Finn v. American Fire and

Casualty Company, 207 F.2d 113, 116 (5th Cir. 1953), cert.

denied 74 S.Ct. 476, Zbranek v. Hofheinz, 727 F.Supp. 324,

326 (D.C.Tex.1989).

Il.

Defendants agree that total diversity between the

parties does not exist in this case and argue that federal

question is the basis for removal. (Defendants’ Notice of

Removal p. 3). In fact, the presence of several in-state

Defendants in this case absolutely precludes removal on

the basis of diversity of citizenship. 28 U.S.C.A. 1441(b).

Therefore, Defendants’ misguided attempt to remove this

case from the state court in which it was properly filed is

based solely upon allegations of the existence of a “fed-

eral question.” (Defendants’ Notice of Removal p. 3).

IV.

Defendants’ allegations of the existence of a “federal

question” sufficient to justify this removal are confusing

and inconsistent at best. In fact, it appears as though

Defendants are uncertain about the merits of this removal

which is exemplified by the following statement in their

Notice of Removal:

Resp. App. 40

Personal injury actions from incidents occurring

on federal enclaves may support district court

jurisdiction under Section 1331 and therefore

arise under the Constitution.

Defendants’ Notice of Removal p. 3. Defendants further

state the case is removable because of the possibility of a

government contractor defense or federal officer jurisdic-

tion. Without a doubt, no federal question jurisdiction -

exists and this cause was improperly removed to this

Court.

Defendants’ Removal is untimely pursuant to 28

U.S.C. § 1446(b). 28 U.S.C. § 1446(b) states the following:

The notice of removal of a civil action or pro-

ceeding shall be filed within thirty days after

the receipt by the defendant, through service or

otherwise, of a copy of the initial pleading set-

ting forth the claim for relief upon which such

action or proceeding is based.

Assuming only for the purposes of this paragraph that

Defendants’ misguided allegations in their Removal are

correct, then Defendants have a fatal jurisdictional error

in their removal proceedings. One basis for Defendants’

Notice of Removal is federal officer jurisdiction which

gives rise to a government contract immunity defense.

Defendants contend that their first knowledge that a gov-

ernment contractor defense was available was subsequent

to Plaintiffs’ Answers to Interrogatories. (See Defendants’

Notice of Removal p. 2). Defendants state that:

The information provided in the interrogatories

has enabled G.E. to ascertain that the action is

————

Resp. App. 41

removable, and thus this Notice is being timely

filed within thirty (30) days after receiving the

interrogatories, pursuant to 28 U.S.C. § 1446(b).

This statement is absolutely incorrect in light of the

Motion for Summary Judgment filed by Chemical Spe-

cialists & Development, Inc. on June 16, 1993 based on

government contractor immunity. (See Defendant, Chem-

ical Specialists & Development, Inc.’s Motion and Brief

for Summary Judgment attached here to as Exhibit “A”).

Apparently, one Defendant was able to ascertain the gov-

ernment contractor defense was available from the Plain-

tiffs’ Petition. Defendants’ Notice of Removal was not

even filed within 30 days of the date that another Defen-

dant filed a Motion for Summary Judgment based on

government contractor immunity.

Defendants further state that:

Plaintiffs’ Answers to Interrogatories indicate

that exposure took place solely within the con-

fines of Tinker Air Force Base. Such an air force

base is a federal enclave subject to federal statu-

tory and common law, and federal regulations.

(See Defendants’ Notice of Removal p. 3). Defendants

contend that Plaintiffs’ Responses to Interrogatories was

their first knowledge that Plaintiffs were exposed to

chemicals at Tinker Air Force Base when in reality, the

Plaintiffs’ Original Petition stated the following:

Plaintiffs would show that all Plaintiffs were

exposed to hazardous chemicals, including, but

not limited to cobalt, chromium, cadmium,

acetylene, ethanol and heptane while working

Resp. App. 42

for the United States Air Force at Tinker Air

Force Base in Oklahoma City, Oklahoma.

(Plaintiffs’ Original Petition p. 6).

Even if we were to assume that there is a federal

question, (ese Defendants have violated the provisions

of 28 U.S.C. §1446(b) in that they did not remove the case

within thirty days upon receipt of the Plaintiffs’ plead-

ings expressing the case is removable. The courts have

strictly construed this thirty day requirement, and if that

requirement is not met, removal is improper. Nolan v.

Boeing Co., 919 F.2d 1058 (5th Cir. 1990).

VI.

Plaintiffs strongly contend that Defendants’ Removal

of this lawsuit was untimely, but in the unlikely event

this Court determines the Removal was timely, Defen-

dants have no basis for federal jurisdiction. Defendants

cite only two cases that they contend “may” support

federal jurisdiction pursuant to Section 1331.

The United States Supreme Court in Ohio River Con-

tract Company v. Honorable Thomas R. Gordon, 244 U.S. 68,

37 S.Ct. 599, 61 L.Ed. 997 (1917), dealt with the identical

issue this Court faces. The plaintiff filed a lawsuit in state

court. Defendants alleged that jurisdiction was inap-

propriate in state court and that federal jurisdiction was

proper. The plaintiff was injured while working on a

United States government contract at a canal reservation

owned by the United States. The issue before the court

Was:

Resp. App. 43

Under these facts it was insisted the court was

without jurisdiction (a) because when the acci-

dent occurred the company and the plaintiff

were engaged in work under a contract with the

United States government; (b) because the cause

of action arose on land acquired by the United

States by purchase or condemnation with the

consent of the legislature of Kentucky, and

therefore, under article 1, §8, clause 17, of the

Constitution of the United States, the jurisdic-

tion of the Federal government was exclusive.

Id. at 600. The court held:

We at once put out of view the contention that

the [state] trial court was without jurisdiction

because the parties, at the time of the accident,

were engaged in work under a contract with the

United States government, since the want of

merit in the proposition has been previously

established. Gromer v. Standard Dredging Co., 224

U.S. 362, 371, 56 L.Ed. 801, 32 Sup. Ct. Rep. 499.

an action for personal injuries being in its nature

transitory and susceptible of being brought in

any jurisdiction in which the defendant may be

impleaded, there is no foundation for the con-

tention that the court had no jurisdiction over

the subject matter of the suit.

Id. at 601. Texas courts have also followed the United

States Supreme Court mandate that state courts have

jurisdiction over cases arising out of incidents on federal

enclaves. Red Top Cab Co. v. Capps, 270 S.W.2d 273

(Tex.Civ.App. — Austin 1954, writ ref’d n.re.); Day &

Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65 (Tex.Civ.App.

Resp. App. 44

- Texarkana 1992, no writ). In Capps, an automobile acci-

dent occurred on a military base. Defendants questioned

the jurisdiction of the state court because the collision

occurred within Fort Hood, an area which the United

States government had exclusive jurisdiction. The court

held that since the action is transitory, state court jurisdic-

tion is proper. Additionally, in Hatridge, the court dealt

with the similar issue of whether or not state courts had

jurisdiction over actions arising on federal enclaves. The

court held:

State courts can have jurisdiction over an action

arising on federal enclave if the cause of action

is transitory. Red Top Cab Co. v. Capps, 270 S.W.2d

273 (Tex.Civ.App. — Austin 1954, writ ref’d

n.r.e.) Such actions can be maintained wherever

there is in personam jurisdiction over the par-

ties.

Hatridge, 831 S.W.2d at 68. It is apparent that we must

determine whether or not a personal injury action is

transitory. Capps clearly held that a personal injury law-

suit is transitory and a more recent decision, Lutheran

Broth. v. Kidder Peabody & Co., Inc., 829 S.W.2d 300

(Tex.App. — Texarkana 1992, writ granted without refer-

ence to merits) reiterated that same point. The court

stated, “[t]ort actions are transitory in nature and can be

instituted and tried in any court which has jurisdiction in

personam of the defendant.” Kidder, 829 S.W.2d at 307.

Since a transitory action which occurs on a federal

enclave shall be maintained in state court, Defendants’

Removal based on federal enclave jurisdiction is without

merit.

ee eee

Resp. App. 45

VIL.

Defendants further contend that removal is proper

based on the government contractor defense. (Defen-

dants’ Notice of Removal p. 4). As previously expressed,

a plaintiff is “master of his claim” and whether or not

removal is proper is based on the plaintiff’s assertions in

their pleadings. Unquestionably, “a defense that raises a

}

federal question does not confer federal question jurisdic-

tion.” In re Digicon Marine, Inc., 966 F.2d 158, 160 (1992).

The Fifth Circuit has held:

The well pleaded complaint rule places even

further restrictions on a defendant's ability to

remove a case from state court. The rule pro-

vides that the plaintiff’s properly pleaded com-

plaint governs the jurisdictional determination,

and if, on its face, such a complaint contains no

issue of federal law, then there is no federal

questions jurisdiction. [Citation omitted]. The

fact that a federal defense may be raised to the

plaintiff’s action even if both sides concede that

the only real question at issue is created by a

federal defense — will not suffice to create fed-

eral question jurisdiction. [Citations omitted].

Thus, the general rule provides that a federal

defense to a state law claim does not create

removal jurisdiction.

Aaron v. National Union Fire Insurance Company of Pitts-

burgh, 876 F.2d 1157, 1160-61 (5th Cir. 1989). Undoubtedly,

Defendants recognize the fact that the government con-

tractor defense does not create federal jurisdiction. “The

preemptive force necessary to create removal jurisdiction

should only be held to exist when ‘Congress has clearly

Resp. App. 46

manifested in an intent to make causes of action... re-

movable to federal court’.” Aaron, 876 F.2d at 1163. Where

there is no clear manifestation of intent to create federal

jurisdiction, the prudent approach is to remand the case

to state court. Id.

Vil.

Defendants further contend that removal was proper

pursuant to 28 U.S.C. § 1442(a)(1) and that the Defen-

dants were acting under government officers as required

by that section. Defendants fail to meet the initial element

of the section because Defendants are not acting under a

federal officer but were acting under a federal agency.

One Defendant’s Motion for Summary Judgment clearly

states, “Chemical Specialists and Development, Inc., did

enter contracts with the government through the Defense

General Supply Center in Memphis, Tennessee, and the

General Services Administration Warehouse in Fort

Worth, Texas.” (see Chemical Specialists & Development,

Inc.'s Motion for Summary Judgment, P. 2, attached as

Exhibit “A”). These facts are further confirmed in an

affidavit from Steve Cook which is also attached to

Chemical Specialists & Development, Inc.’s Motion.

Defendants’ contracts are with federal agencies and not

with federal officers. Removal under Section 1442(a)(1) is

improper. The Supreme Court recently held that federal

agencies are not entitled to assert federal officer removal;

only a federal officer is.. International Primate Protection

League v. Administrators of the Tulane Educ. Fund, 498 U.S.

980, ___ 111 S.Ct. 1700, 1703, 114 L.Ed.2nd 134 (1991).

Therefore, a contractor acting under the United States

Department of the Air Force, an agency of the United

PARR RE MS aes

NPIS RIN er RP AT

Resp. App. 47

States, is not entitled to rely on Section 1442(a)(1) as a

basis for removal jurisdiction. Bahrs v. Hughes Aircraft Co.,

795 F.Supp. 965 (D. Ariz., 1992).

Additionally, in order for a Defendant to be able to

remove pursuant to 28 U.S.C. § 1442(a)(1), they must be

an individual and not a corporation. Krangle v. Crown, 791

F.Supp. 1436 (S.D.Cal. 1992). There is conflicting author-

ity on whether or not a corporation may fall within 28

U.S.C. § 1442(a)(1). It is Plaintiffs’ contention that the

proper manner is to follow Krangle and determine that a

corporation does not fall within the applicable statute.

The most thorough and correct analysis on persons

acting under a federal officer is displayed in a agent

orange case entitled, Ryan v. Dow Chemical Co., 781

F.Supp. 934 (E.D.N.Y. 1992). This case involves the ques-

tion of whether or not a company could properly remove

the lawsuit based on 28 U.S.C. § 1442(a)(1). Plaintiffs filed

a lawsuit in Texas state court alleging various state law

causes of action. Plaintiffs were civilians in Vietnam dur-

ing the war and were contaminated by agent orange.

Plaintiffs sued various companies that were involved in

the manufacture and distribution of agent orange. Defen-

dants removed the case to federal court based upon 28

U.S.C. § 1442(a)(1) on the grounds that they were acting

under government orders when they supplied the alleged

defective agent orange.

The first requirement of Section 1442(a)(1) requires

that the defendants make a colorable claim to a federal

defense. Id. at 943. The only defense listed in Defendants’

Notice of Removal is the government contractor defense.

Additionally, the government contractor defense only

Resp. App. 48

allows a defendant who manufactures products at the

directions of the federal government to escape tort lia-

bility for harms caused by those products. Boyle v. United

States Technologies Corp., 487 U.S. 500 (1988), 108 S.Ct.

2510, 101 L.Ed.2nd 442, (1988). In this instance, no Defen-

dant manufactured products at the direction of the fed-

eral government, but manufactured products that were

subsequently purchased by the federal government; thus,

making the government contractor defense inapplicable.

In order for Defendants to have a colorable claim to a

federal defense, they must prove that they manufactured

the jet engines or chemicals at the direction of the federal

government. Boyle, 497 U.S. at 514. This means that no

G.E. jet engine was sold to anyone but the federal govern-

ment and that all jet engines were manufactured wholly

for the federal government. Obviously, this did not occur.

Additionally, as to the chemical Defendants in this law-

suit, they must prove that the chemical was made exclu-

sively for the government in order for the government

contractor defense to apply. In this instance, the Defen-

dants only federal defense is government contractor

indemnity and in Ryan, the court stated:

[T]he military contractor defense — which pro-

vides that a contractor must inform the govern-

ment of any dangerous consequences of using

its product of which the government does not

know - established not a defense but a federal

common law standard of care that must be met

to avoid liability. If defendants were relying

solely on the federal common law military con-

tractor “defense,” there would be a question as

Resp. App. 49

to the existence of a colorable claim to a federal

defense required by Mesa.

Ryan 781 F.Supp. at 945.

The second element of Defendants’ Removal is that

there must be a person acting under an officer. We have

previously expressed that they are not acting under an

officer but acting under an agency and the second ele-

ment of Defendants’ Removal is not met. In order for a

company to be a person acting under an officer, Defen-

dants must show that all acts were performed pursuant to

an officer’s direct order or to comprehensive and detailed

regulations. C.F. Bakalkus v. Crossland Savings Bank, 781

F.Supp. 140, 144-145 (E.D.N.Y. 1991). The real question is

whether the Defendants are being sued because of actions

required by the government. Ryan, 781 F.Supp. at 945. If

Defendants simply produced a product and ultimately

sold it to the government, then the “federal nexus”

between the actions for which they are being sued and

the directives of federal officers is not met. Id. at 945.

Ryan ultimately held that the defendants had not met

their burden of establishing that they were acting under

federal officers sufficient to maintain jurisdiction of the

case pursuant to 28 U.S.C. § 1442(a)(1). The case was

properly remanded to Texas state court. Id. at 953.

IX.

Defendants removal is fundamentally defective

because defendants failed to comply with 28 U.S.C.

§1446(b). Without question, defendants had actual knowl-

edge sufficient to ascertain the Viability of removal at the

time of service of Plaintiffs’ Original Petition in State

Resp. App. 50

Court on November 13, 1992. Defendants Notice of

Removal was not filed until August 12, 1993. Defendants

failed to file the removal within 30 days of Plaintiffs’

Petition; therefore, Remand is proper.

Additionally, federal enclave jurisdiction is an insuf-

ficient ground to sustain a Notice of Removal and Defen-

dants evidence is insufficient to give rise to jurisdiction

pursuant to 28 U.S.C. §1442(a)(1). This cause of action

must be remanded to the 60th Judicial District Court of

Jefferson County, Texas pursuant to 28 U.S.C. §1447(c).

WHEREFORE, PREMISES CONSIDERED, Plain-

tiffs’ requests this matter be set for hearing, and that on

final hearing of this Motion, the Court grant Plaintiffs’

Motion to Remand pursuant to 28 U.S.C. §1447(c) and for

such other and further relief, as it may show itself justly

entitled to receive.

Respectfully submitted,

WELLER & GREEN, L.L.P.

P. O. BOX 350

BEAUMONT, TX 77704-0350

(409) 838-0101

(409) 832-8577 (FAX)

BY /s/ Mitchell A. Toups

MITCHELL A. TOUPS

STATE BAR NO. 20151600

B. ADAM TERRELL

STATE BAR NO. 19790900

ATTORNEYS FOR PLAINTIFFS

Resp. App. 51

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

above and foregoing instrument has been forwarded to

Plaintiff’s counsel of record, by Certified Mail, Return

Receipt Requested and/or by Hand-Delivery, and to all

known counsel of record by regular mail, on this the Ist

day of September, 1993.

/s/ Mitchell A. Toups

MITCHELL A. TOUPS

Resp. App. 52

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40589

IN RE: JAMES E. AKIN, ET AL.,

Petitioners.

Petition for Writ of Mandamus to the United States

District Court for the

Eastern District of Texas

(Filed Jul. 28, 1994)

Before DAVIS, WIENER, and BARKSDALE, Circuit

Judges.

BY THE COURT:

IT IS ORDERED that the petition for writ of man-

damus is DENIED.

Resp. App. 53

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES E. AKIN, RICHARD G.

ARELLANO, CHARLES L.

BALDWIN, ANNIE M. BARNES,

GARY BLEDSOE, MARCIA

BRANNOCK, DELTON BROWN,

GARY BURWELL, TIMOTHY

CARAWAY, THOMAS W.

CLARK, DAVID CLAUSEN,

RICHARD COTEY, CONNIE

COTTRELL, RONNIE D.

COTTRELL, STEVEN L. COY,

| HUGH CROW, NATHAN

: D’AMICO, EDDIE R. DANNA,

JR., DONNA M. DAVIS,

LEANDRA DEMOSS, ORVILLE

DESHIELDS, LOUIS R.

DICKINSON, OLLIE

DILLISHAW, JR., DANNY

DRISKILL, EDDIE DUCK, JR.,

DANNY DUNN, JENNY L.

DUREN, BILL R. DURINGTON,

DORIS BROWN DURLIN,

STEPHEN RAY DUTY, LEON

EALON, LARRY ELLIOTT,

DEBRA M. EMERICH, JANETTE

K. FARLEY, LLOYD FREED, JON

G. GABBARD, DEBRA HALL

GABBARD, LINDA D.

GATEWOOD, LANCE GILLEY,

Case No.

CIV-94-832-C

; MAX R. GLOVER, WENDELL

x GLOVER, JAMES GOFF,

2 WENDELL GOMEZ, JOHN C.

GOULD, PHYLLIS J. GOULD,

REGINA G. GRISSAM,

PAM AM IP LP EP PA MD LP OD a a a) a an a aE a aE aE ED

Resp. App. 54

KENNETH O. HART, MICHAEL

HAWKINS, EDGAR HOUSTON,

GERALD HOUSTON,

VALENCIA HOWELL, RALPH V.

ICE, RAY IRVAN, ERIC L.

JANOUSEK, DAVID KEISER,

BILLY B. KING, LARRY D.

LIDELL, DAVID LOVE, ROBERT

C. LOVE, JIMMY LYNCH,

THOMAS MARSHALL, JAMES

MCLANE, MICHAEL D.

MOWLES, JEFFREY MURRAY,

MELVIN E. NORTON,

ZENEPHOR OVERSTREET,

JAMES M. OWEN, TERRY W.

OXLEY, RONALD K. PEOPLES,

MICHAEL PHILLIPS, LOUISE

PICKARD, MARIE L. PLUMLEE,

if PHILLIP PLUMLEE, RICK

REAMES, SARAH REESE, JACK

D. RHODEN, OTHA L.

RHODEN, WAYNE

RICHARDSON, DOROTHY

RIMBOLD, TIJUANA

ROBINSON, ALINE ROCKWELL,

CHARLON 5S. ROGERS,

SANDRA ROLLAND, MARLYS

RONE, TONY E. RUBLE, MARY

SAYRE, REATHA R. SCHLEGEL,

GLORIA SHELTON AS

REPRESENTATIVE OF THE

ESTATE OF WILTON F.

SHELTON, DECEASED,

CHARLIE SHEPPARD, HERMAN

D. SIKES, TERRY SIMPSON,

WILLIAM D. SLATTERY, LARRY

MMNMNMNMMMDPMMMOMMMNMNMMMMMNMMMMMMMMMMMMMMMMMmMwmM

Resp. App. 55

SMITH, KENNETH SNYDER,

JESS STANLEY, CLAYTON D.

STASTNY, MELISSA C.

STASTNY, GAYLE S. STATON,

PAUL STEIN, MARTHA J.

STOROZYSZYN, RICK L.

STUART, JAMES SYKES,

EMMETT THOMAS, JR.,

BENJAMIN TINGLE, MARILYN

J. TRACEY, GARY VESSELL,

HELEN WALKER, WILLIAM

WARD, NOREEN WELCH,

GEORGE WEST, RANDY F.

WIENS, LEONARD WILLIAMS,

MORTEN D. WILLIAMS, LINDA

WILLIS, GLENDA WRIGHT,

HERMAN DALE WRIGHT,

KENNETH L. WRIGHT, ALBERT

A. WYATT, JAMES D. WYATT,

JOHNNIE R. YORK,

LOIS AYERS, TERRY BRUNER,

FLOYD BURELSON, CHRISTY

CANNON, MARK CHISHOLM,

BILLIE COCHRAN, DELORES

COLEY, VIRGIL W. CLARK,

JAMES CROOM, MARY

DODSON, SAUNDRA

DUNCAN, JIMMY EASTON,

DONALD FLATT, JAMES

HENDERSON, DAVID HIGGINS,

CATHY KALER, DEBRA

KELLOGG, RUSSELL KINNEY,

PHYLLIS KNOTT, LANDY

LANCASTER, JERRY LUM,

JACK MCSWAIN, JAMES

MESSICK, DANIEL MOODY,

OP DEP EP EPP LP LD LP EP ED DD EP PP a ns en en in en an a or

MINN IN NNN NH WM)

Resp. App. 56

JACK OBLANDER, PATRICIA

ORR, DAVID PARRIS, HELEN

PAYNE, VIRGINIA PERRY,

WINFRED PLUNKETT, DEBRA

SANDERS, THOMAS SANDERS,

ORIN SHAW, ZEEFFIE

SWANEGAN, GEORGE

THORPE, LONNIE TRAMMEL,

PEGGY WALTON, CLINTON

WILBURN, DANIEL WILLIAMS,

RICHARD WILLIAMS, AND

BARBARA YOTT

DEBRA COY, DAVID DESELMS,

WILLIAM DUNLAP, MARILYN

GAITLYN, JIMMY GATEWOOD,

FRANCES HINDS, LAVEDA

MONTAGUE, FRED STOCKTON,

RONALD WILLIAMS, AND

ROSETTA WILLIAMS

Plaintiffs

VS.

CHEMICAL SPECIALISTS &

DEVELOPMENT INC., E. L-

DUPONT de NEMOURS &

COMPANY, INC., GENERAL

ELECTRIC COMPANY, GTE

PRODUCTS CORP., HAYNES

INTERNATIONAL, INC., JESSOP

STEEL COMPANY, J. W.

HARRIS CO., INC.,

METALLURGICAL

TECHNOLOGIES INC., PRATT

& WHITNEY COMPANY, INC.,

THUNDERBIRD SALES

COMPANY, UNION CARBIDE

MMP ID MN IP LP IP LP TPA AD NM MM IN MN MM LN LP) LP) LN LP UN UN WO) LP) UO) UP UN) GN GN “>. UP. UN

Resp. App. 57

CHEMICALS & PLASTICS §

COMPANY, INC., UNITED §

TECHNOLOGIES §

CCRPORATION, ASHLAND §

CHEMICAL, ASHLANDOIL, §

KERR-MCGEE CHEMICAL * < e

SHELL OIL COMPANY, SPRAY. §

ON SYSTEMS, INC., SHERWIN- §

WILLIAMS, MAGNAFLUX §

CORPORATION, MCGEAN- §

ROHCO, INC., formerly known §

as MCGEAN CHEMICAL §

COMPANY, INC., CEE BEE §

CHEMICAL, A DIVISION OF §

MCGEAN-ROHCO, INC., CEE §

BEE CHEMICALS, INC., MET- §

L-CHEK COMPANY, OCTAGON §

PROCESS, INC., PLAZE, INC., §

ROYAL LUBRICANTS 8

COMPANY, INC., SOLVENTS & §

CHEMICALS, INC., STECO, 8

INC., TAPMATIC S

CORPORATION, THOMPSON & §

FORMBY, INC. L&F §

PRODUCTS, INC., MINWAX §

COMPANY, INC., TRUFLEX §

RUBBER PRODUCTS COMPANY, §

BREAK-FREE, INC., DETROIT 8

DIESEL-ALLISON CANADA 8

EAST, INC., LOCTITE §

CORPORATION, SOUTHWEST §

PETRO-CHEM, INC., W.M. §

BARR & CO., INC., THE DOW 8

CHEMICAL COMPANY, DOW 8

INDUSTRIAL SERVICE OF THE §

DOW CHEMICAL COMPANY, §

DOW DIVISION OF THE DOW

Resp. App. 58

CHEMICAL COMPANY,

BRAZOS OIL & GAS OF THE

DOW CHEMICAL COMPANY,

3M COMPANY, MINNESOTA

MINING AND

MANUFACTURING COMPANY,

VULCAN MATERIALS

COMPANY, MONSANTO

COMPANY, MALLINCKRODT

GROUP, INC., DIAMOND

SHAMROCK CORP., DIAMOND

SHAMROCK A/K/A

OCCIDENTAL ELECTRO-

CHEMICALS, INC., EL

DORADO CHEMICAL CO.,

AMCO CHEMICAL CORP.,

SOLVENT CHEMICAL

COMPANY, FISHER CHEMICAL,

ALLIED CORPORATION,

ALLIED-SINGAL, INC.,

ASBESCO, INC., NORTON

COMPANY, EXXON

CORPORATION, EXXON

CHEMICAL, CSD, INC., CHEM-

TRONICS, FEDERAL-MOGUL

CORPORATION, MOBIL OIL

CORPORATION, AMERON,

INC., SAFETY-KLEEN

CORPORATION, CSB, INC.,

DEVOE AND REYNOLDS

COMPANY, INC., BLAZER

EAST, INC., formerly known as

KOPPERS COMPANY, INC.,

SARAN PROTECTIVE

COATINGS CO., SEYMOUR OF

SYCAMORE, INC., AMJAY

CORPORATION, DEXTER

MMMM MMMMNMNMMMMMMMMMMmMMMMM MMMM WP MM MM WW wo

Resp. App. 59

CORP., UNI-KEM

INTERNATIONAL, INC,

MILLER-STEPHENSON

CHEMICAL COMPANY. INC.,

formerly known as MILLER-

STEPHENSON COMPANY OF

CONN., INC., BEL-RAY

COMPANY, INC., PACIFIC

GRINDING WHEEL, INC.

SPEEDCUT, INC., LHB

INDUSTRIES, CRAWFORD

LABORATORIES, INC.,

SHERWIN, INCORPORATED,

CABOT CORPORATION, CABOT

OIL & GAS MARKETING

CORPORATION, CABOT OIL &

GAS CORPORATION, BRENT

AMERICA, INC. formerly

known as BRENT CHEMICALS

CORPORATION, CHEMICAL

COMMODITIES AGENCY,

PACKAGING SERVICE CO,

INC., PENETONE

CORPORATION, formerly

3 known as W.C.P. INDUSTRIES,

4 INC., CONTINENTAL

3 CHEMICAL CO., INC.

3 BORDEN, INC., formerly known

as THE BORDEN COMPANY,

[TW FLUID PRODUCTS GROUP,

a Division of ILLINOIS TOOL

4 WORKS, INC., ILLINOIS TOOL

= WORKS, INC., PRATT &

2 LAMBERT UNITED, INC.,

t formerly PRATT & LAMBERT,

a INC., BEECHAM HIP. INC.,

formerly BEECHAM HOME

YP AP. API LAPD APY APS PP PD APS PY APS CP CEP Clr DCD aR an ts Cans tar

MMMM UM WM WM

Resp. App. 60

IMPROVEMENT PRODUCTS,

formerly BEECHAM HOME

IMPROVEMENT PRODUCTS,

INC., formerly REMWELL, INC.,

POLYMERIC SYSTEMS, INC.,

DESOTO, INC., and VULCAN

CHEMICAL COMPANY, INC.,

PHIPPS PRODUCTS, a Division

of DOW CHEMICAL COMPANY,

Defendants

PLAINTIFFS’ FOURTH AMENDED

ORIGINAL COMPLAINT

(Filed Oct. 3, 1994)

TO THE HONORABLE JUDGE OF SAID COURT:

MMM MM MN TM) WM a

COMES NOW, Plaintiffs, and files this their Fourth

Amended Original Complaint complaining of the actions

of Defendants, and for cause of action would respectfully

show unto the Court as follows:

Plaintiffs are residents of the State of Oklahoma and

are as follows:

James Akin, Richard Arellano, Charles Baldwin,

Annie M. Barnes, Gary Bledsoe, Marcia Brannock, Delton

Brown, Gary Burwell, Timothy Caraway, Thomas W.

Clark, David Clausen, Richard Cotey, Connie Cottrell,

Ronnie Cottrell, Steven L. Coy, Hugh Crow, Nathan

D’Amico, Eddie R. Danna, Jr., Donna M. Davis, Leandra

DeMoss, Orville DeShields, Louis R. Dickinson, Ollie Dil-

lishaw, Jr., Danny Driskill, Eddie Duck, Jr., Danny Dunn,

Jenny L. Duren, Bill R. Durington, Doris Brown Durlin,

ii, eas

Hains Shr yer taal Saba a Dieting Ge tia bh oa! é

TSE Gin Lae ne ES oe:

SOI LES ED,

Bie RRE Aas eae

Resp. App. 61

Stephen Ray Duty, Leon Ealon, Larry Elliott, Debra Emer-

ich, Janette Farley, Lloyd Freed, Jon G. Gabbard, Debra

Hall Gabbard, Linda D. Gatewood, Lance Gilley, Max R.

Glover, Wendell Glover, James Goff, Wendell Gomez,

John C. Gould, Phyllis J. Gould, Regina Grissam, Kenneth

O. Hart, Michael Hawkins, Edgar Houston, Gerald

Houston, Valencia Howell, Ralph V. Ice, Ray Irvan, Eric L.

Janousek, David Keiser, Billy B. King, Larry D. Liddell,

David Love, Robert C. Love, Jimmy Lynch, Thomas Mar-

shall, James McLane, Michael D. Mowles, Jeffrey Murray,

Melvin E. Norton, Zenephor Overstreet, James M. Owen,

Terry W. Oxley, Ronald K. Peoples, Michael Phillips,

Louise Pickard, Marie L. Plumlee, Phillip Plumlee, Rick

Reames, Saran Reese, Jack D. Rhoden, Otha Phoden,

Wayne Richardson, Dorothy Rimbold, Tijuana Robinson,

Aline Rockwell, Charlon S. Rogers, Sandra Rolland,

Marlys Rone, Tony E. Ruble, Mary Sayre, Reatha R. Schle-

gel, Gloria Shelton as Representative of the Estate of

Wilton F. Shelton, Deceased, Charlie Sheppard, Herman

D. Sikes, Terry Simpson, William D. Slattery, Larry Smith,

Kenneth Snyder, Jess Stanley, Clayton D. Stastny, Melissa

C. Stastny, Gayla S. Staton, Paul Stein, Martha J.

Storozyszyn, Rick L. Stuart, James Sykes, Emmett

Thomas, Jr., Benjamin Tingle, Marilyn J. Tracey, Gary

Vessell, Helen Walker, William Ward, Noreen Welch,

George West, Randy F. Wiens, Leonard Williams, Morten

D. Williams, Linda Willis, Glenda Wright, Herman Dale

Wright, Kenneth L. Wright, Albert A. Wyatt, James D.

Wyatt, Johnnie R. York, Lois Ayers; Terry Bruner, Floyd

Burelson, Christy Cannon, Mark Chisholm, Billie

Cochran, Delores Coley, Virgil W. Clark, James Croom,

Mary Dodson, Saundra Duncan, Jimmy Easton, Donald

Resp. App. 62

Flatt, Randell Green, James Henderson, David Higgins,

Cathy Kaler, Debra Kellogg, Russell Kinney, Phyllis

Knott, Landy Lancaster, Jerry Lum, Jack McSwain, James

Messick, Daniel Moody, Jack Obander, Patricis Orr, David

Parris, Helen Payne, Virginia Perry, Winfred Plunkett,

Debra Sanders, Thomas Sanders, Orin Shaw, Zeefie

Swanegan, Robert L. Swartz, George Thorpe, Lonnie

Trammell, Stanley Walkup, Peggy Walton, Clinton Wilb-

urn, Daniel Williams, Richard Williams, Barbara Yott,

Debra Coy, David DeSelms, William Dunlap, Marilyn

Gaitlyn, Jimmy Gatewood, Frances Hinds, Laveda Mon-

tague, Fred Strickton, Ronald Williams and Rosetta Wil-

liams.

The Court has determined that there is jurisdiction

from this cause of action. However, Plaintiffs disagree

and contest jurisdiction of this Court and again request

that the case be remanded to the 60th Judicial District

Court, Beaumont, Jefferson County, Texas.

Il.

Defendant, Chemical Specialists & Development Inc.

is a Texas Corporation and has previously been served

and is before this court for all purposes. A copy of this

instrument will be served on their attorney of record, by

certified mail, return receipt requested.

Defendant, E. I. DuPont de Nemours Company, Inc.

is a Delaware Corporation and has previously been

served and is before this court for all purposes. A copy of

this instrument will be served on their attorney of record,

by certified mail, return receipt requested.

SP ee a PO OR my

Resp. App. 63

Defendant, General Electric Company is a New York

Corporation and has previously been served and is before

this court for all purposes. A copy of this instrument will

be served on their attorney of record, by certified mail,

return receipt requested.

Defendant, GTE Products Corp. is a Massachusetts

Corporation and has previously been served and is before

this court for all purposes. A copy of this instrument will

be served on their attorney of record, by certified mail,

return receipt requested.

Defendant, Haynes International, Inc. is a Delaware

Corporation and has previously been served and is before

this court for all purposes. A copy of this instrument will

be served on their attorney of record, by certified mail,

return receipt requested.

Defendant, Jessop Steel Company is a Pennsylvania

Corporation and has previously been served and is before

this court for all purposes. A copy of this instrument will

be served on their attorney of record, by certified mail,

return receipt requested.

Defendant, J. W. Harris Co., Inc. is an Ohio Corpora-

tion and has previously been served and is before this

court for all purposes. A copy of this instrument will be

served on their attorney of record, by certified mail,

return receipt requested.

Defendant, Metallurgical Technologies Inc. is a Texas

Corporation and has previously been served and is before

this court for all purposes. A copy of this instrument will

be served on their attorney of record, by certified mail,

return receipt requested.

Resp. App. 64

Defendant, Pratt & Whitney Company Inc. is a for-

eign corporation doing business in the state of Texas and

has previously been served and is before this court for all

purposes. A copy of this instrument will be served on

their attorney of record, by certified mail, return receipt

requested.

Defendant, Thunderbird Sales Company is a foreign

corporation doing business in the State of Texas and has

previously been served and is before this court for all

purposes. A copy of this instrument will be served on

their attorney of record, by certified mail, return receipt

requested.

Defendant, Union Carbide Chemicals & Plastics

Company, Inc. is a New York Corporation and has previ-

ously been served and is before this court for all pur-

poses. A copy of this instrument will be served on their

attorney of record, by certified mail, return receipt

requested.

Defendant, United Technologies Corporation is a for-

eign corporation doing business in the State of Texas and

has previously been served and is before this court for all

purposes. A copy of this instrument will be served on

their attorney of record, by certified mail, return receipt

requested.

Defendant, Ashland Chemical is an Ohio corporation

and may be served with process through their agent for

service, The Corporation Trust Company, 735 First

National Building, Oklahoma City, Oklahoma 73102, by

certified mail, return receipt requested.

pe TSP ete epee eae Sa dae, I oars eae Oe ae eRe eT

BS RRS Ba RA GA

Resp. App. 65

Defendant, Ashland Oil is a Kentucky corporation

and may be served with process through their agent for

service, The Corporation Company, 735 First National

Building, Oklahoma City, Oklahoma 73102, by certified

mail, return receipt requested.

Kerr-McGee Chemical Co. is a Delaware corporation

and may be served with process through their agent for

service, Russell G. Homer, Jr., 123 Robert S. Kerr, Okla-

homa City, Oklahoma 73125, by certified mail, return

receipt requested.

Shell Oil Company is a Delaware corporation and

may be served with process through their agent for ser-

vice, The Corporation Company, 735 First National Build-

ing, Oklahoma City, Oklahoma 73102, by certified mail,

return receipt requested.

Spray-On Systems, Inc. is an Ohio corporation and

may be served with process through their agent for ser-

vice, Corporation Company, 735 First National Building,

Oklahoma City, Oklahoma 73102, by certified mail, return

receipt requested.

Sherwin-Williams is an Ohio corporation and may be

served with process through their agent for service, Cor-

poration Company, 735 First National Building, Okla-

homa City, Oklahoma 73102, by certified mail, return

receipt requested.

Magnaflux Corporation is a Delaware corporation

and may be served with process through their agent for

service, The Corporation Trust Company, 1209 Orange,

Wilmington, Delaware 19801, by certified mail, return

receipt requested.

Resp. App. 66

McGean-Rohco, Inc., formerly known as McGean

Chemical Company, Inc. is an Ohio corporation and may

be served with process through their agent for service,

John D. Drinko, 1900 East 9th St., Suite 3200, Cleveland,

Ohio 44114, by certified mail, return receipt requested.

Cee Bee Chemical, a Division of McGean-Rohco, Inc.

is an Ohio corporation and may be served with process

through their agent for service, Willie R. Smith, 9520 Cee

Bee Drive, Downey, California 90241, by certified mail,

return receipt requested.

Cee Bee Chemicals, Inc. is an Ohio corporation and

may be served with process through their agent for ser-

vice, Kerry H. May, 50 Public Square, Suite #1250, by

certified mail, return receipt requested.

Met-L-Chek Company is a California corporation and

may be served with process through their agent for ser-

vice, William E. Mooz, 1639 Euclid Street, Santa Monica,

California 90404, by certified mail, return receipt

requested.

Octagon Process, Inc. is a New Jersey corporation

and may be served with process through their agent for

service, Morrill J. Cole, 25 Main Street, Hackensack, New

Jersey 07602, by certified mail, return receipt requested.

Plaze, Inc. is a Missouri corporation and may be

served through their agent for service, John Ferring, 9401

Watson Industrial Park, St. Louis, Missouri 63126, by

certified mail, return receipt requested.

Royal Lubricants Company, Inc. is a Delaware corpo-

ration and may be served with process through their

agent for service, The Corporation Trust Company, 1209

Resp. App. 67

Orange Street, Wilmington, Delaware 19801, by certified

mail, return receipt requested.

Solvents & Chemicals, Inc. is a Texas corporation and

may be served with process through their agent for ser-

vice, M.B. Merrill, 5433 Westheimer, Suite 700, Houston,

Texas 77756, by certified mail, return receipt requested.

Steco, Inc. is a Delaware corporation and may be

served with process through their agent for service, Cor-

poration Service Company, 1013 Center Road, Wilm-

ington, Delaware 19805, by certified mail, return receipt

requested.

Tapmatic Corporation is a California corporation and

may be served with process through their agent for ser-

vice, Maxine White, 802 Clearwater Loop, Post Falls,

Idaho 83854, by certified mail, return receipt requested.

Thompson & Formby, Inc. is a Florida corporation

and may be served with process through their agent for

service, C.T. Corporation System, 1200 South Pine Island

Road, Plantation, Florida 33324, by certified mail, return

receipt requested.

L&F Products, Inc. is a Delaware corporation and

may be served with process through their agent for ser-

vice, C.T. Corporation System, 1200 South Pine Island

Road, Plantation, Florida 33324, by certified mail, return

receipt requested.

Minwax Company, Inc. is a New Jersey corporation

and may be served with process through their agent for

service, C.T. Corporation System, 1200 South Pine Island

Road, Plantation, Florida 33324, by certified mail, return

receipt requested.

Resp. App. 68

Truflex Rubber Products Company is a California

corporation and may be served at their corporate

address, 1667 North Main Street, Los Angeles, California

90012 pursuant to Fed.R. Civ. P. Rule 4(d).

Break-Free, Inc. is a Delaware corporation and may

be served with process through their agent for service,

The Prentice Hall Corporation System, Inc., 32 Loocker-

man Square, Suite L-100, Dover, Delaware 19904, by certi-

fied mail, return receipt requested.

Detroit Diesel-Allison Canada East, Inc. is a Dela-

ware corporation and may be served with process

through their agent for service, The Corporation Trust

Company, 1209 Orange Street, Wilmington, Delaware

19801, by certified mail, return receipt requested.

Loctite Corporation is a Delaware corporation and

may be served with process through their agent for ser-

vice The Prentice Hall Corporation System, Inc., 32

Loockerman Square, Suite L-100, Dover, Delaware 19904,

by certified mail, return receipt requested.

Southwest Petro-Chem, Inc. is a Delaware corpora-

tion and may be served with process through their agent

for service The Corporation Trust Company, 1209 Orange

Street, Wilmington, Delaware 19801, by certified mail,

return receipt requested.

W.M. Barr & Co., Inc. is a Tennessee corporation and

may be served with process through their agent for ser-

vice, Bruce F. Doane, 2105 Channell, Memphis, Tennessee

38113, by certified mail, return receipt requested.

The Dow Chemical Company is a Delaware corpora-

tion and may be served with process through their agent

Resp. App. 69

for service The Corporation Company, 735 First National

Building, Oklahoma City, Oklahoma 73102, by certified

mail, return receipt requested.

Dow Industrial Service of The Dow Chemical Com-

pany is a Delaware corporation and may be served with

process through their agent for service The Corporation

Company, 735 First National Building, Oklahoma City,

Oklahoma 73102, by certified mail, return receipt

requested.

Dow Division of The Dow Chemical Company is a

Delaware corporation and may be served with process

through their agent for service The Corporation Com-

pany, 735 First National Building, Oklahoma City, Okla-

homa 73102, by certified mail, return receipt requested.

Brazos Oil & Gas of The Dow Chemical Company is a

Delaware corporation and may be served with process

through their agent for service The Corporation Com-

pany, 735 First National Building, Oklahoma City, Okla-

homa 73102, by certified mail, return receipt requested.

3M Company is a Delaware corporation and may be

served with process through their agent for service The

Corporation Company, 735 First National Building, Okla-

homa City, Cklahoma 73102, by certified mail, return

receipt requested.

Minnesota Mining and Manufacturing Company is a

Delaware Corporation and may be served with process

through their agent for service, The Corporation Trust

Company, 1209 Orange Street, Wilmington, Delaware

19801, by certified mail, return receipt requested.

Resp. App. 70

Vulcan Materials Company is a New Jersey corpora-

tion and may be served with process through their agent

for service The Prentice Hall Corporation System, 115 SW

89th Street, Oklahoma City, Oklahoma 73102, by certified

mail, return receipt requested.

Monsanto Company is a Delaware corporation and

may be served with process through their agent for ser-

vice The Corporation Company, 735 First National Build-

ing, Oklahoma City, Oklahoma 73102, by certified mail,

return receipt requested.

Mallinckrodt Group, Inc., formerly known as Imcera

Group, Inc. is a Delaware corporation and may be served

with process through their agent for service The Corpora-

tion Company, 735 First National Building, Oklahoma

City, Oklahoma 73102, by certified mail, return receipt

requested.

Diamond Shamrock Corp. is a Delaware corporation

and may be served with process through their agent for

service, The Corporation Trust Company, 1209 Orange

Street, Wilmington, Delaware 19801, by certified mail,

return receipt requested.

Diamond Shamrock Corp. a/k/a Occidental Electro-

chemicals, Inc. is a Delaware corporation and may be

served with process through their agent for service, The

Corporation Trust Company, 1209 Orange Street, Wilm-

ington, Delaware 19801, by certified mail, return receipt

requested.

El Dorado Chemical Co., Inc. is an Oklahoma corpo-

ration and may be served with process through their

agent for service, Rosenstein, Fist & Ringold, 525 South

Resp. App. 71

Main, Suite 300, Tulsa, Oklahoma 74103, has previously

been served and is before this court for all purposes. A

copy of this instrument will be served on their attorney of

record, by certified mail, return receipt requested.

Amco Chemical Corp. is a Texas corporation and may

be served with process through their agent for service, J.

Melton McCrary, 6123 England, Houston, Texas 77021 by

certified mail, return receipt requested.

Solvent Chemical Company, Inc. is a Delaware corpo-

ration and may be served with process through their

agent for service, Dummy Agent Account, Secretary of

State Townesend Building, Dover, Delaware 19901, by

certified mail, return receipt requested.

Fisher Chemical is a Delaware corporation and may

be served with process through their agent for service,

The Prentice Hall Corporation System, Inc., 32 Loocker-

man Square, Suite L100, Dover Delaware 19904 by certi-

fied mail, return receipt requested.

Allied Corporation is a New York corporation and

may be served with process through their agent for ser-

vice, The Corporation Company, 735 First National Build-

ing, Oklahoma City, Oklahoma 73102, by certified mail,

return receipt requested.

Alliedsignal, Inc. is a Delaware corporation and may

be served with process through their agent for service,

The Corporation Company, 735 First National Building,

Oklahoma City, Oklahoma 73102, by certified mail, return

receipt requested.

Resp. App. 72

Asbesco, Inc. is an Alabama corporation and may be

served with process through their agent for service, Eliz-

abeth P. Mason, 3654 Halls Mill Road, Mobile, Alabama

36619, by certified mail, return receipt requested.

Norton Company is a Massachusetts corporation and

may be served with process through their agent for ser-

vice, C.T. Corporations Systems, 2 Oliver Street, Boston,

Massachusetts 02019, by certified mail, return receipt

requested.

Exxon Corporation is a New Jersey corporation and

may be served with process through their agent for ser-

vice, The Corporation Company, 735 First National Build-

ing, Oklahoma City, Oklahoma 73102, by certified mail,

return receipt requested.

Exxon Chemical is a New Jersey corporation and may

be served with process through their agent for service,

The €orporation Company, 735 First National Building,

Oklahoma City, Oklahoma 73102, by certified mail, return

receipt requested.

CSD, Inc. is an Oklahoma corporation and may be

served with process through their agent for service, Ben-

jamin J. Curtis, 900 Broadway, Suite #3, Poteau, Okla-

homa 74953, by certified mail, return receipt requested.

Chem-Tronics, Inc. is a California corporation and

may be served with process through their agent for ser-

vice, The Prentice Hall Corporation Systems, Inc., 115

S.W. 89th St., Oklahoma City, Oklahoma 73139, by certi-

fied mail, return receipt requested.

Federal-Mogul Corporation is a Michigan corpora-

tion and may be served with process through their agent

Resp. App. 73

for service, The Corporation Company, 735 First National

Building, Oklahoma City, Oklahoma 73102, by certified

mail, return receipt requested.

Mobil Oil Corporation is a New York corporation and

may be served with process through their agent for ser-

vice, The Prentice Hall Corporation Systems, Inc., 115

S.W. 89th Street, Oklahoma City, Oklahoma 73139, by

certified mail, return receipt requested.

Ameron, Inc. is a California corporation and may be

served with process through their agent for service, The

Corporation Company, 735 First National Building, Okla-

homa City, Oklahoma 73102, by certified mail, return

receipt requested.

Safety-Kleen Corporation is a Wisconsin corporation

and may be served with process through their agent for

service The Prentice Hall Corporation System, Inc., 115

S.W. 89th Street, Oklahoma City, Oklahoma 73102, by

certified mail, return receipt requested.

CSB, Inc. is an Oklahoma Corporation and may be

served with process through their agent for service,

Homer Paul, 109 N. Armstrong, Bixby, Oklahoma 74008,

by certified mail, return receipt requested.

DeVoe and Reynolds Company, Inc. is a Delaware

corporation and may be served with process through

their agent for service, The Corporation Company, 735

First National Building, Oklahoma City, Oklahoma 73102,

by certified mail, return receipt requested.

Blazer East, Inc., formerly known as Koppers Com-

pany, Inc. is a Delaware corporation and may be served

Resp. App. 74

with process through their agent for service, The Corpo-

ration Company, 735 First National Building, Oklahoma

City, Oklahoma 73102, by certified mail, return receipt

requested.

Saran Protective Coatings Co. is a Michigan corpora-

tion and may be served with process through their agent

for service, Noel Smith, 17332 Shields, Detroit, Michigan

48212, by certified mail, return receipt requested.

Seymour of Sycamore, Inc. is an Illinois corporation

and may be served with process through their agent for

service, S.M. Heatley, 917 Crosby Ave., Sycamore, Illinois

60178, by certified mail, return receipt requested.

Amjay Corporation is a Texas corporation and may

be served with process through their agent for service,

G.V. Kshatriya, 11490 Westheimer, Suite 290, Houston,

Texas 77077, by certified mail, return receipt requested.

Dexter Corp. is a Delaware corporation and may be

served with process through their agent for service, The

Company Corporation, 3 Christina Center, 201 N. Walnut

St., Wilmington, Delaware 19805, by certified mail, return

receipt requested.

Uni-Kem International, Inc. is a Louisiana corpora-

tion and may be served with process through their agent

for service, J. Inchauspegul, 513 Hickory Ave., Harahan,

Louisiana 70123, by certified mail, return receipt

requested.

Miller-Stephenson Chemical Company Inc., formerly

known as Miller-Stephenson Company of Conn., Inc. is a

Connecticut corporation and may be served with process

through their agent for service, George M. Stephenson,

a a ma a

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Resp. App. 75

George Washington Highway, Danbury, Connecticut

06810, by certified mail, return receipt requested.

Bel-Ray Company, Inc. is a New Jersey corporation

and may be served with process through their agent for

service, Daryl Brosnan, Bowman Ave., P.O. Box 526,

Farmingdale, New Jersey 07727, by certified mail, return

receipt requested.

Pacific Grinding Wheel, Inc. is a New Jersey corpora-

tion and may be served with process through their agent

for service, Donald L. Tischer, 13120 Highway 99, Marys-

ville, Washington 98270, by certified mail, return receipt

requested.

Speedcut, Inc., is an Illinois corporation and may be

served with process through their agent for service, Mar-

tha R. Roper, 2500 Latham St., Rockford, Illinois 61103, by

certified mail, return receipt requested.

LHB Industries is a Missouri corporation and may be

served with process through their agent for service, Jos-

eph Von Kaenel, 1 Metropolitan Square 2600, St. Louis,

MO 63102, by certified mail, return receipt requested.

Crawford Laboratories, Inc. is an Illinois corporation

and may be served with process through their agent for

service, Benjamin Shmetterer, 4165 So. Emerald, Chicago,

Illinois 60609, by certified mail, return receipt requested.

Sherwin, Incorporated is a California corporation and

may be served with process at their corporate address,

Mr. A.G. Sherwin, 5530 Borwick Ave, Southgate, CA

90280 pursuant to Fed.R.Civ.P. Rule 4(d).

Resp. App. 76

Cabot Corporation is a Delaware corporation and

may be served with process through their agent for ser-

vice, The Prentice Hall Corporation System, Inc., 115 S.W.

89th, Oklahoma City, Oklahoma 73139, by certified mail,

return receipt requested.

Cabot Oil & Gas Marketing Corporation is a Dela-

ware corporation and may be served with process

through their agent for service, The Corporation Com-

pany, 735 First National Building, Oklahoma City, Okla-

homa 73102, by certified mail, return receipt requested.

Cabot Oil & Gas Corporation is a Delaware corpora-

tion and may be served with process through their agent

for service, The Corporation Company, 735 First National

Building, Oklahoma City, Oklahoma 73102, by certified

mail, return receipt requested.

Brent America, Inc., formerly Brent Chemicals Cor-

poration, is a Delaware Corporation and may be served

with process through their agent for service, The Corpo-

ration Trust Company, 1209 Orange St. Wilmington, Dela-

ware 19801, by certified mail, return receipt requested.

Chemical Commodities Agency is a California corpo-

ration and may be served at their corporate address,

27447 Pacific Street, Highland, California 92346, Atten-

tion: Richard Simon, pursuant to Fed. R. Civ. P. Rule 4(d).

Packagirg Service Co., Inc. is a Texas corporation and

may be served with process through their agent for ser-

vice, Gabriel J. Baizan, 929 So. Shaver, Pasadena, Texas,

by certified mail, return receipt requested.

Penetone Corporation, formerly known as W.C.P.

Industries, Inc., is a New Jersey corporation and may be

sai m ne

Resp. App. 77

served with process through their agent for service, Pren-

tice-Hall Corporation Systems/NJ, 830 Bear Tavern Road,

West Trenton, New Jersey, by certified mail, return receipt

requested.

Continental Chemical Co, Inc. is a Delaware corpora-

tion and may be served with process through their agent

for service, Prentice Hall Corporation Systems, Inc., 32

Loockerman Square, Suite L-100, Dover, Delaware 19904,

by certified mail, return receipt requested.

Borden, Inc., formerly known as the Borden Com-

pany, is a New jersey corporation and may be served with

process through their agent for service, Edwin K. Large,

Jr., 117 Main St., Flemington, NJ 08822, by certified mail,

return receipt requested.

ITW Fluid Products Group, a Division of Illinois Tool

Works, Inc. is a Delaware corporation and may be served

with process through their agent for service, The Corpo-

ration Trust Company, 1209 Orange Street, Wilmington,

Delaware 19801, by certified mail, return receipt

requested.

Illinois Tool Works, Inc. is a Delaware corporation

and may be served with process through their agent for

service, The Corporation Trust Company, 1209 Orange

Street, Wilmington, Delaware 19801, by certified mail,

return receipt requested.

Pratt & Lambert United, Inc. formerly Pratt & Lam-

bert, Inc. is a New York corporation and may be served

with process at their corporate office. 73-97 Tonawanda

Street, Buffalo, New York 14207 pursuant to Fed. R. Civ.

P. 4(d).

Resp. App. 78

Beecham HIP, Inc., formerly Beecham Home

Improvement Products, formerly Beecham Home

Improvement Products, Inc., formerly Remwell, Inc., is a

Delaware corporation and may be served with process

through their agent for service, The Corporation Trust

Company, 1209 Orange Street, Wilmington, Delaware

19801, by certified mail, return receipt requested.

Polymeric Systems, Inc. is a Delaware corporation

and may be served with process through their agent for

service, The Corporation Trust Company, 1209 Orange

Street, Wilmington, Delaware 19801, by certified mail,

return receipt requested.

DeSoto, Inc. is a Delaware corporation and may be

served with process through their agent for service, The

Corporation Trust Co., 1209 Orange Street, Wilmington,

Delaware 19801, by certified fail, return receipt requested.

Vulcan Chemical Company, Inc. is an Alabama corpo-

ration and may be served with process through their

agent for service The Prentice Hall Corporation Com-

pany, 115 SW 89th St., Oklahoma City, OK 73102, by

certified mail, return receipt requested.

Phipps Products, a Division of Dow Chemical Com-

pany is a Delaware corporation and may be served with

process through their agent for service, The Corporation

Company, 735 First National Building, Oklahoma City,

Oklahoma 73102, by certified mail, return receipt

requested.

The court has determined that there is jurisdiction for

this cause of action. However, Plaintiffs disagree and

contest jurisdiction of this Court and again request that

Resp. App. 79

the case be remanded to the 60th Judicial District Court,

Beaumont, Jefferson County, Texas.

ITI.

Plaintiffs bring this action because of the personal

injuries and damages of Plaintiffs herein for toxic chemi- -

cal, solvent, mineral and metal exposure. Plaintiffs would

show that all Plaintiffs were exposed to these chemicals,

solvents, minerals and metals while working at Tinker

Air Force Base in Oklahoma City, Oklahoma. Plaintiffs

would show that said chemicals, solvents, minerals and

metals were manufactured or provided by one or more of

the named Defendants. (The chemicals, solvents, minerals

and metals include but are not limited to, cobalt, cad-

mium, chromium, Freon TF solvent, Freon PCA, RTV 108,

RTV 106, Copper, Iron, Lanthanum, Manganese, Molyb-

denum, Nickel, Silicon, Vanadium, Tungsten, Zirconium,

Yttrium, Aluminum, Titanium, Boron, Columbium, Tanta-

lum, Silver, Zinc, Tin, Tin, PWA1317, PWA1306, PWA1307

D, Carbon, Trichloromethane, ADH Powder,

Grizeldalloy-0001, AMS 4782, Haynes 188, 1,2,2-Tri-

fluoroethane, 1,1,2-Trichloro 1,2,2-Trifluoroethane (Freon

113), 113 Trichlorotrifluoroethene, Methyl Chloroform,

Dichlorodifluoromethane, Methylene Chloride, Methyl]

Ethyl Ketone, Methyl Ethyl Ketone (2-Butanone), Xylene,

Xylene (O-,M,P-Isomers), Ethyl Benzene, Toluene, Methyl

N-Propyl Ketone, Methy! Isobutyl Ketone, Dichlo-

romethane, 1,1,1-Trichloroethane, 1-1-1 Trichloroethane,

Freon TF, Trichlorotrifluoroethane, Cyclohexane, Methy!

N-Amyl Ketone, Dichloromethane, Technical, Orth-

dichlorobenzene, Dry Cleaning Solvent, Trichloro-

ethylene, Tetrachloroetheylene, Toluene MIBK, Toluene

Resp. App. 80

Tech, 1,1,1-Trichloroethan, Toluene ACS Perchloro-

ethylene, MEK Peroxide, Monochlorodifluoromethane,

Monochlordifluoromethane, Dichlorotetrafluoromethane,

Trichloromonofloromethane, Trichlorotrifluoromethane,

Monochlorotrifluoromethane, Bromochlorodifluoro-

methane, Chiorodifluoromethane, Trichloromonofluoro-

methane, asbestos, silica, and Tetrachloroethylene, and

Freon with additives) Plaintiffs would further show that

General Electric Company, Pratt & Whitney Company

Inc., Detroit Diesel-Allison Canada East, Inc., and United

Technoligies Corporation provided jet engines to Tinker

Air Force Base which were worked on, grinded on,

reworded and repaired by the above-referenced Plaintiffs.

The engines involved include but are not limited to J57,

J79, TF30, TF33, TF41, F101, F108, F110 and all derivatives

and models of those engines (For example — P5, P7, P11,

P100, etc.) Each Plaintiff listed above was exposed to

these chemicals, solvents, minerals and metals, and their

fumes while working on these jet engines and jet engine

parts in the course and scope of their employment at

Tinker Air Force Base. These Plaintiffs worked on the jet

engines by cleaning, grinding, reworking, and being gen-

erally exposed to the chemicals, solvents, minerals and

metals while performing their work. The jet engine man-

ufacturers also required, recommended and/or suggested

certain of these hazardous chemicals, solvents, minerals

and metals to be used in the cleaning, grinding and

reworking of their engines.

IV.

Plaintiffs would show that each of the above-refer-

enced Plaintiffs are or have been employed at Tinker Air

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Resp. App. 81

Force Base and were exposed to significant amounts of

chemicals, solvents, minerals and metals. Plaintiffs were

exposed to the chemicals, solvents, minerals and metals

without any warning of the true danger and hazards of

them or their potential for causing adverse health effects.

Plaintiffs would show that such chemicals, solvents, min-

erals and metals were designed, formulated, manufac-

tured and distributed by the above-named Defendants;

and they violated the terms and provisions of Section

402A and 402B of the Restatement of Torts (2nd). Plain-

tiffs allege defective manufacturing, design and market-

ing. These Defendants are Strictly liable for these

defective products which were the producing, proximate,

and/or contributing cause of these Plaintiffs’ injuries.

Plaintiffs would show that these Defendants were

negligent and grossly negligent in one or more of the

particulars with regard to warnings:

(1) In providing no warnings regarding the

defective nature of the solvents and chemi-

cals, or alternatively, providing inadequate

warnings to the ultimate users, these Plain-

tiffs.

(2) In failing to take reasonable measures to

ensure that appropriate warnings were

given to individuals at Tinker Air Force

Base so that the ultimate users, these Plain-

tiffs, would be aware of the dangers and

hazards related to the use of these chemi-

cals, solvents and metals.

Resp. App. 82

All of the above were a proximate or producing cause

of Plaintiffs’ injuries and damages.

VI.

Plaintiffs would also show that the chemicals, sol-

vents, minerals, defective protective gear, and metals sold

and distributed by these Defendants were defectively

marketed and that such defective marketing was a proxi-

mate, producing and/or contributing cause of Plaintiffs’

damages. Specifically, there was an inherent risk of harm

that could be reasonably anticipated from the use of these

products while cleaning, reworking and grinding on jet

engine parts. In fact, the jet engine manufacturers

required, recommended and/or suggested certain of

these products to be used without any warning concern-

ing the dangers and hazards of these products on their jet

engines when they knew or should have known the risk

of harm to these Plaintiffs. In addition, the jet engine

manufacturers had their own employees on the premises

of Tinker Air Force Base that were in a position to know

about the dangers of using these hazardous chemicals,

solvents, minerals, defective protective gear, and metals,

as well as the dangerous levels of heavy metal dust

created from the work performed on these engines, and

yet these Defendants still failed to warn these Plaintiffs or

anyone at Tinker Air Force Base concerning the health

hazards related to the use of these chemicals, solvents,

minerals, defective protective gear and metals. The

absence of warnings or inadequate warnings was a pro-

ducing, proximate, and/or contributing cause of these

Plaintiffs’ injuries and damages. Plaintiffs also would

show that these chemicals, solvents, minerals, defective

———E7EwEe

Resp. App. 83

protective gear, and metals were defectively manufac-

tured and designed and such were made unreasonably

dangerous to these Plaintiffs. Plaintiffs would also show

that their employer, the United States Government, did

not specify a particular design to these defendants that

was peculiar to the United States Government, but

designs that were also sold and distributed commercially

by these Defendants as well.

VIL.

The Plaintiffs would also show that these Defendants

were negligent and grossly negligent in the manufacture,

design, marketing, sale and distribution of these jet

engines, chemicals, solvents, defective protective gear,

and minerals. The additional acts and omissions of all of

these Defendants, which make them liable to these Plain-

tiffs for negligence and gross negligence are as follows:

(1) In failing to warn these plaintiffs of the

health hazards in using these chemicals,

solvents, minerals, defective protective

gear, and the metal dust created when

working on these engines and the use of

the chemicals, solvents and minerals on

the jet engines.

(2) In failing to warn the employer of these

Plaintiffs as to the health hazards of these

chemicals, solvents, minerals and the

metal dust created when working on these

engines.

(3) In failing to properly test these chemicals,

solvents and minerals to determine the

dangerousness of them.

(4)

(5)

(7)

(8)

(9)

(10)

Resp. App. 84

In failing to give proper instruction with

regard to the use of these chemicals, sol-

vents, defective protective gear, and min-

erals so that they could be used safely, if at

all.

In failing to determine the exact use and

application of these chemicals, solvents

and minerals so that additional warnings

and instructions could be issued to either

the employer or the Plaintiffs themselves.

In failing to conduct proper industrial

hygiene studies to determine the danger-

ousness and toxicity to humans with

regard to these chemicals, solvents and

minerals and from the metal dust created

from working on these jet engines.

In selling these chemicals, solvents, min-

erals and engines when they knew or

should have known of the dangers regard-

ing the use of solvents, chemicals, and

minerals on the jet engines and in general

use.

In selling these solvents, chemicals, min-

erals and engines without requiring warn-

ings to be made to these plaintiffs about

health hazards regarding the use of them

singularly or together.

In representing that these chemicals, sol-

vents, defective protective gear, and min-

erals were safe for use in the application

in which they were made.

In not representing all dangers related to

these chemicals, solvents and minerals on

the MSDS sheets, which is a violation of

Law.

(11)

(12)

(13)

(14)

(15)

(16)

(17)

Resp. App. 85

In failing to insure that the Plaintiffs and

Plaintiffs’ employers were properly and

adequately warned regarding the use of

these chemicals, solvents, defective pro-

tective gear, and minerals in general or on

these jet engines.

In providing these chemicals, solvents,

defective protective gear, and minerals

when these Defendants knew or should

have known that they were inherently

unsafe for their intended use.

In failing to test these chemicals, solvents

and minerals with regard to bio-compati-

bility.

In failing to test these chemicals, solvents

and minerals for tissue reactions, neuro-

logical effects, respiratory effects and any

other negative health effects.

In failing to take reasonable measures to

prevent the improper use of these chemi-

cals, solvents and minerals or the use of

them in an unsafe manner on these jet

engines or in general.

In maintaining a corporate policy of

silence and disassociation concerning the

known dangers of these chemicals, sol-

vents and minerals and the heavy metal

dust created from working on these jet

engines.

In allowing the ultimate users to believe

that these chemicals, solvents and min-

erals were safe when they knew they were

not.

Resp. App. 86

(18) In not performing radiation tests or

studies to determine the radiation expo-

sure to these plaintiffs in working on these

jet engines when grinding and/or rework-

ing or with a combination of the chemi-

cals, solvents and minerals.

(19) In allowing the Plaintiffs to be exposed to

dangerous levels of radiation.

(20) In failing to warn of health effects from

radiation exposure to these jet engines

while these Plaintiffs worked on them.

(21) In failing to warn of the synergistic effect

of the chemicals, solvents, and minerals

with the heavy metal dust, or with each

other.

(22) In failing to warn of the proper protective

gear to wear when worki

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