Document 0LjejvJQ04nVVmnXrydqyz4ZJ

SUMMONS--Ciui*iur Cm-nr Q320-X Jfate nf ^Hu-huyut, (liivniit (Court fur tlje (Comity nf iHnroii ^EGHiV .RQNER.A.,. .HALE.Y.apd VALERIE. J, .HALEY,_ husband and. wife; and, DONALD L. HALEY and FLORENCE S. Plaintiffs. HALEY, husband and wife vs. MICHIGAN SILO COMPANY, A.Michignn Corporation; C & B SILO" COMPANY, A Michigan Corporatioi3,.IlrNnAN.T s MONSANTO COMPANY, A Corporation; and,''CONCRETE-SILO COMPANY, INC., A Corporation, Jointly and Severally SUMMQNS File No.._77.PO.^j%'NP IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN: To tlie above named defendant__ _Q.ompany_. You are hereby notified that a civil action has been commenced against you, and that if you desire to defend the same, you are required to answer or take such other action as may be permitted by law with regard to the complaint herewith served upon you, within *20 days after service of this summons and complaint upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. EDWARD A. SWAC.K1IAMER County Clerk. (Seal, or the Court) Date. HOY -1-8-*. -1977 ..................... WOODWORTH & WOODWORTH I Plaintiff's Attorney JAMES N. WOODWORTH O' Attorney for Plaintiffs 125 N. Heisterman St. . . ..Jlad-Axa, .ML..48413.............. .................................. Business Address Phone: (517) 269-9961 Uf service Is made outside llc State of Michigan or by registered mail .10 days is allowed (or answer or such oilier nclion us may lie pcrruitled l>y law. f HARTOLDMON0095898 STATE 01' MICHIGAN . ( IN THE CIRCUIT COURT FOR THE COUNTY OF HURON ROGER A. HALEY nnd VALERIE J. IIALKY, husband nnd wife; and, DONALD L. HALEY nnd FLORENCE S. HALEY, husband nnd wife, Plaintiffs -vs- File D 77 OO^-^jNP MICHIGAN SILO COMPANY, A Michigan Corporation; CAB SILO COMPANY, A Michigan Corporation; MONSANTO COM PANY, A Corporation; and, CONCRETE SILO COMPANY, INC., A Corporation, Jointly and Severally ' Defendants ----------------------------------------------------------- / Woodworth A Woodworth James N. Woodworth P/I26346 Attorney for Plaintiffs I ! { l i \ \ t i i I !t ! [ i Ii i i> COMPLAINT Now comes the above named plaintiffs by WOODWORTH A WOODWORTH, their attorneys, and Complains against the defendants as follows: COUNT I 1. That plaintiffs are residents of Grant Township, Huron County, Michigan. 2. That defendant Michigan Silo Company is a Michigan Corporation, incorporated March 17, 1966, with its principal office in Charlotte, Michigan, hereinafter referred to as Michigan Silo. 3. That defendant CAB Silo Company is a Michigan Corporation? with its principal office in Charlotte, Michigan, hereinafter referred to as C A B Silo. 4. That defendant Monsanto Company is a corporation incorporated under the laws of the State of Delaware, with a registered agent nnd office in Michigan at, c/o The Corporation Company, 615 Griswold Street, Detroit, Michigan, hereinafter referred to as Monsanto. . 5. That defendant Concrete Silo Company, Inc., is a corporation wooDwormi a Y/OOPWORTH ATTORN I V 5 AT LAW tlUHIAWAN or, RAO AAE, M1CHIOAN AAAI* with its registered office in Bloomfield, Indiana, hereinafter referred to as Concrete Silo; and a corporation known as Concrete Silo Company, Inc. -1- HARTOLDMON0095899 of Hlooinf leld, Indiana, cnnsoUda Led wlLh n Mich .< gan corpora t fon known no Mlcli 11;/ iilo Company by nn Agreement of Con' fdnlion dated Novem ber 17, 1965, by which the constituent corporations were consolidated under the name of Concrete Silo Company, Inc.,, with its registered office in Bloomfield, Indiana, and by which the new corporation expressly assumed all debts, liabilities and duties of the said constituent cor porations . 6. That the plaintiffs presently own a dairy farm located in Sec tions 9 and 10, Grant Township, Huron County, Michigan, and the plaintiffs Roger A, 6 Valerie J. Haley are presently operating said farm and reside thereon. . k> 7. That plaintiffs, Donald L. and Florence S. Haley's interest in said farm premises is financial only and have never taken an active part in the management and operation of the dairy business. 8. That plaintiffs purchased the real property comprising the farm premises from Clayton J. Geramel and Ardis A. Gemmel, husband and wife, in 1972. 9. That plaintiffs purchased certain personal property on said farm premises including, but not limited to four silos, unloaders, feeders, augers, cows, heifers and calves from Clayton J. Gemmel and Ardis A. Gemmel in 1972. 10. That in August 1965, plaintiff's predecessor in title, Clayton Gemmel, contracted with Michigan Silo to build a 20' X 60', which silo was completed and paid for in 1965; that in 1966 Clayton Gemmel con tracted with Michigan Silo to build a 20' X 60' silo, which ailo was completed and paid for in 1966; that in 1966 Clayton Gemmel contracted with Michigan Silo to build a 16' X 57 1/2' silo, which silo was com pleted and paid for in 1966; that in 1967 Clayton Gemmel contracted with CAB Silo to build a 20' X 70' silo which silo was completed and paid for in 1967. 11. Hint the 16' X 57 1/2' silo built in 1966, mentioned in para graph 010 is and has been leased by a written lease by plaintiff Roger A. Haley from one Donald Gemmel, since 1972 and is located in Section wootwonrii a WOODWORTH AI1P1IUYS AT LAW fb H iirinrrhan nr. BAD AFP, MICMIOAM <414 9 of Grant Township, Huron County, Michigan. -2- j HARTOLDMON0095900 12. That defendant Monsanto tiupp 11 t>d to Michigan olio, through its factor! Concrete Silo, at Rlooinf ie] d, Tiulli and Maanllon, Oliio, an industrial eli lor inn tod hydrocarbon under the trade name of AROCbOR; that plaintiffs are Informed and believe that defendant Mon santo specifically provided AROCbOR 1256 to Michigan Silo and that Michigan Silo used said AROCLOR 1256 in the preparation of its silo Bealant known ns ClfMAR; that said CUMAR was used ns a silo sealant on tlie above silos by Michigan Silo and by C & B Silo. 13. That all of the above-mentioned silos were used for young cattle and in particular, heifers being raised for replacement in the main dairy herd. 16. That Clayton J. Gemel and Ardis A. Gemmel have assigned all of their interest in this cause of action to plaintiffs. 15. That after purchasing the property involved, plaintiffs made use of the silo storage facilities to feed their cattle and heifers n heavy concentration of corn silage along with hay and oats, all from Baid silos. . 16. That defendants, Michigan Silo and C 6 B Silo expressly war ranted to plaintiffs' predecessors in title that the silo material and construction would be of good quality and workmanship and represented that the silos in question would be good facilities for storage of silage and would aid in producing the top quality silage for feeding dairy cattle and said silos were sole for the express purpose of storage and preparation of feed for dairy cattle. 17. That the defendants, Michigan Silo and C & B Silo impliedly warranted that the silos in question were fit for the particular purpose for which they were sold and constructed and that the said defendants' products were merchantable. 18. That the CUMAR coating used in said silos was, in fact, heavily laden with an industrial chlorinated hydrocarbon commonly known ns Polychlorinated Biphenyls or "l'CB", that the coating has saturated the silo walls and joints thereof and is inseparable from the silo in general nnd the use of the silos resulted in contamination of all of the silage aWoodworth WOOOWOIITII MTOUHCVS AT CAW IBfl H MniTtflhAM *T. BAD A*. MICMMMM 4B4l and feed contained therein with FCB. -3- HARTOLDMON0095901 19. 11' after tire purchase in 197?., plaint)n" Roger A. Haley immediately . ,enpted to progressively improve Ills, evil and over the years improve ita level of production, and in 197.1 or J.97A placed hio heifers on a concentration of corn silage from the anid silos, particularly in an effort to improve. Iiis herd. 20. That no matter how hard plaintiff, Roger A. Haley, tried and no matter what efforts he put toward herd improvement, the beat he could do was to stay at a relatively level rate of production; in addition, instead of any increase in production, lie experienced con ception difficulties with his dairy cows and heifers and production remained level or sometimes showed a decline rather than steadily improving. 21. That in September, 197A, plaintiffs were notified by a State Dairy Inspector of the Michigan Department of Agriculture that the milk being produced on their farm from their cows contained a level of TCI) which was believed to be coming from feed being contaminated in their silos and in the silo being rented by them; that said Inspector ulti mately caused the chemical testing of the silo walls on two silos and the conclusion was that PCS was present in high concentration on said silo walls and was contaminating the feed therein. ' 22. That in 1976, plaintiffs were advised to cease using the silo9 and make other arrangements for placing of their crops to be taken off that summer and fall in other types of feed containers; that plaintiffs did so at considerable expense and extra effort on their part; that they did construct additional silos for the storage of their crops for feed to ithe dairy herd. That because said actions were required, plaintiffs incurred substantial financial burdens and various losses resulted, all from having to use new silos and to change their operation of dairy man agement and abandon their contaminated silos as well as that being rented, and in addition certain valuable crops remained in said silos which were abandoned ns not being proper feed for their dairy herd. 23. That each of the defendants were aware that AROCLOR 125A and CUHAR products supplied by defendants could and would cause the PC!) con Y/00DW0RTH ft V/OOUWORTM ATfonWY3 AT I AW I an n. Hr n r r AN m, BAD A*r. M 1C, HI O A N <t 4 I J tamination and knowing this, defendants negligently and willfully con- ! S i tt f | f HARTOLDMON0095902 tinned to produce and line (mine an a nilo iie.'ilnnl mid i\i |> 11gent J y mid willfully f( cd to warn plaintiff:; of the potcnj PCB damage mid contamination of their animals, buildings, equipment, lund and persons. 24. Hint plaintiffs sustained damages due to defendant's breach of contracts and breach of warranties including but not limited to: a. Loss of production, conception difficulties with the dairy herd, capital outlays to abandon feed and storage facilities, health damages and potential health damages to plaintiffs. b. Loss of interest at banking institutions on money which they should have received but did not receive due to defendants actions. c. Payment of interest on loans to banking Institutions which 6 could have been paid in full if not for plaintiffs severe loss of pro fit in their dairy business. d. Costs of construction of additional substitute silos. e. Costs to replace contaminated feeding equipment. f. Costs to replace contaminated feed bunker. g. Loss of value of abandoned feed and silage. b. Loss of profit on forced sale of real property which was ne cessary so that plaintiffs could financially survive. i. Loss of value of contaminated farmland (100 acres) as a result of contaminated manure being spread on said farmland. j. Loss of milk production over five years. k. Loss of value of cows which died over five years. l. Loss of calves which died over five years. tn. Cost9 of feed purchased which was used to control level of PCB in milk. WHEREFORE, plaintiffs request Judgment in their favor and against defendants, jointly and severally, in the sum of $750,000.00 together with interest, and costs of suit. 1 { wooDV/onni n WOODWORTH Mtop'iiys hi lw |t h. nriMrnnA`1 af. Am, MICMIOAH 4A419 COUNT II Plaintiffs reallege and incorporate herein by reference ench and every allegation contained in paragraphs 01 through 024 in Count I and further state: \I I ! I i HARTOLDMON0095903 21*. VI wit' I lie defendant Moiwninto l.'i onr <>l tin1 world'll Inigent producers ci ndusL rln 1. chemicals iiml the noli: m( "acturer In tin; United States of Polychlorinated biphenyls (PClla) nnd Bold PCHo under the trade name of AROCLOR, nnd specifically Bold to defendant Michigan Silo AROChOR 1254 containing 542 chlorine. 26. That during the period defendant Monsanto aold AUOGLOR 1254 to Michigan Silo, or its various factories in Michigan, Indiana, Ohio or Tennessee, or elsewhere, said defendant knew or reasonable should have known that said product was being use.d to manufacture silo coating sealant. 27. That defendant Monsanto expressly warranted its products through la to buyers and ultimately said expressed warranty runs to plaintiffs herein; and, in addition defendant Monsanto impliedly warranted that its products, in particular AROCLOR 1254, are fit for the particular purpose for which they are purchased nnd that said products are mer chantable. 28. That at the time Monsanto sold AROCLOR 1254 to Michigan Silo or affiliates, it knew or should have known that PCBs were environmental contaminants and that said substances were toxic to both humans and animals. 29. That defendant Monsanto breached its said express and implied warranties and is liable to plaintiffs for all damages sustained. 30. That as a result of defendant Monsanto's breach of expressed nnd implied warranties, plaintiffs sustained the damages as enumerated in paragraph H24 above and elsewhere herein, WHEREFORE, plaintiffs request Judgment in their favor nnd against the defendants, jointly and severally, in the sum of $750,000.00 to gether with interest and costs of suit. WOODWORTH ft WOODWORTH AfTORNf Y3 AT lAW I b . Mr^rn"Ai nr. BAD A*f, AMCHIOAH 4D4II COUNT m Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs Hi through 024 in Count I and paragraphs 025 through II30 in Count II, and further state: 31. That defendant Monsanto as manufacturer, producer nnd seller of AROCLOR 1254 which was ultimately supplied to plaintiffs in the silo 6- - 1 1 1 ! I I i i r l i { T<i \ ! i 1 1t1 I i r 1 1 1 HARTOLDMON0095904 con tin)' known-no ciJMAIt, owed plaintiffs the duly (>r care In regard to j / the manufacture , production and d 1 a t r Unit 1 on and i,,ilo of nnid AROCLOR 1254. 32. Defendant Monsanto, because of ita knowledge and expertise, owed plaintiffs a duty of care to assure that AUOCI.OH 1254 would not be used go ns to contaminate feed and supplements fed to plaintiffs' dairy cattle and further owed plaintiffs utmost due cure and caution in assuring proper management and supervisory control over said AROCLOR 1254 so that said product would not be used in such a manner ns to become, a contaminate dangerous to plaintiffs dairy cattle or to plain tiffs themselves or the environment in which they live. 33. That defendant Monsanto breached said duty of due care in that it did not exercise proper care, management and control in the selection of labeling, licensing and manufacture of said AROCLOR 1254 and permitted said product to be purchased and used in such a manner ns to become a contaminant on plaintiff's premises causing adverse affects to plaintiffs' dairy herd and to plaintiffs themselves; that said failure to exercise due care consisted of both negligent actions and omissions on the part of defendant Monsanto. 34. That said defendant's failure to exercise proper care under all circumstances constituted negligence and caused great damage to plaintiffs' dairy operations and caused contamination of plaintiffs' farm lands and buildings, and caused other damages ns more particularly stated in paragraph H24 in Count I herein incorporated by reference. WHEREFORE, plaintiffs request Judgment in their favor and against the defendant Monsanto in the sum of $750,000.00 together with interest and costs of suit. woonwoiun ft woouwonrn ATTOniM Y3 Ay LAW H. MrmrnuAN r. *AO Axt, MICHIGAN 441 c o ii in iv Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs //I through /I24 in Count I, paragraphs /?25 through 30 in Count II, and paragraph I!31 through 034 of Count III, and further state: 35. That defendant Monsanto manufactured and produced AROCLOR 1254 under the trade name of AROCl.OR which wa3 to be used in the pre paration of n silo sealant known no CUMAR. And that as manufacturer, -7- i i il t i l HARTOLDMON0095905 de 1 c'lulunt ; santo was under o duty of rensouab1 are to design 1. i AROCLOR so that It would he reasonable for Its; Intended use. 36. Thnt said AROCLOR wen marketed and Bold by defendant Monsanto to defendants Michigan Silo, CAB Silo and Concrete Silo, to be used in the preparation of a silo sealant known ns CUHAR, and that defen dants Michigan Silo and CAB Silo used the CUMAR containing AROCLOR 1254 to coat and seal the insides of plaintiffs silos. 37. That plaintiffs' predecessors in title relied upon defen dants' representations that their products, in particular AROCLOR 1254 were fit for the particular purpose for which they were intended and that their products were safe and merchantable. 38. That said AROCLOR was defective for its intended purpose and caused unreasonable risks to its ultimate users and consumers, plain tiffs herein,' and that said defendants owed plaintiffs a duty of rea sonable care in the manufacture, production, sale and application of the AROCLOR 1254 to avoid unreasonable risk of injury. 39. That said AROCLOR 1254 was defective and unreasonable dan gerous for its intended purpose and was the proximate cause of the damages incurred by plaintiffs as enumerated in paragraph 024 above and elsewhere herein. WHEREFORE, plaintiffs request Judgment in their favor and against the defendants, jointly and severally, in the sum of $750,000.00 to gether with interest and costs of suit. I I I I i ! t t i i t [ i WOODWORTH n WOODWORTH Anopiirvs *r u.v lid M. tiriurnuAM nr. M> AXK. MirMIO AH A A11 1 . COUNT V Plaintiffs reallege and incorporate herein by reference each and every allegation contained in paragraphs 01 through 024 in Count 1, paragraphs II25 through 030 in Count II, paragraphs 031 though It34 in Count III, and paragraphs 035 through 039 in Count IV, and further b t a t e: 40. Til at defendants Michigan Silo, CAI! Silo, Concrete Silo and Monsanto knew or had reason to know that numerous farm families, in cluding plaintiffs, consumed meat, milk and other products produced on their farms and that as a direct result of contamination of the silos owned or uned by plaintiffs, which silos were used to store feed -8- HARTOLDMON0095906 wooDworun ft WOODWORTH ATlonmvs AT IftW t t M. Hiri^TCBMAM * r. AO All, M 1C Min A M 41*41 for the animals on pin 1 n 11 [ f a 1 form, 111 < * moat , milk anil other products frcnii flic ri. were likely to he contaminated and mumed directly by plaintiffs and result In lion 1Lh problems to the plaintiffs and their families. 41. Hint plaintiffs herein did consume meat, milk, vegetables from their garden fertilized with contaminated manure, and other pro ducts produced on plaintiffs' farm and as a result did consume large quantities of PBC which was contained in the feed fed to plaintiffs' animals from said contaminated silos, which contamination was placed on said farm by defendants Michigan Silo and C & B Silo, which contaniination was manufactured and provided to defendants Michigan Silo b and CAB Silo by defendant Monsanto and their agent, Concrete Silo. . 42. That a direct result of the breach of expressed and implied warranties, and the negligence of said defendants, the plaintiffs suf fered serious health problems and are likely to suffer severe and de leterious health problems for the remainder of their lives and their lives are likely to be shortened; that their effectiveness in performing their work and ultimately maintaining their livelihood has seriously diminished. 43. That as a direct and proximate result of the breach of express and implied warranties and negligence on the part of the defendants, the plaintiffs herein have suffered loss of reputation because of problems in keeping creditors satisfied, mental anguish over their ability to rectify the situation not of their own making and the callous attitude of defendants towards their problems, and because of health problems and mental anguish they are unable to perform duties previously performed and engaged in activities previously participated in. WHEREFORE, plaintiffs pray that a Judgment be entered in their favor against Michigan Silo Company, CAB Silo Company, Concrete Silo Company, Inc., and Monsanto Company, jointly and severally in an amount not to exceed $1,000,000.00 which will compensate plaintiffs for their losses which losses will continue and Increase during the pendency of this action, and in addition that said Judgment require said defendants to provide plaintiffs with medical, dei^nl and optical expenses during -9- i I Ii ifi \ t ]. I i i' HARTOLDMON0095907 the rout o I ipi.r lives. DATED: May 18, 1977 WOODWORTH 6 WOODWORTH ' /' mj.... . . ---- UAMI'S M. WOODWORTH Attorney for Plaintiffs 125 tl. Heisterman St. Bad Axe, MI ABA 13 Phone: (517) 269-9961 \ \ WOOtiWOlUM ft woonwonni ATTOr^l Y3 AT l AW lt It. tf 1-lfMMAll s t tAD AVt, MJcMIoAH 4MIA HARTOLDMON0095908