Document K6QkV0bqKoXkML46Znkv5gZzN

' * CAUSE NO. /<?r7fS*-8tf04t$r 10 2002 KBLLY: MOORE PAINT COMPANY INC. INTHEDIS1 Plaintiff VS. DOW CHEMICAL COMPANY, Individually and as Successor to Union Carbide Corporation; s UNION CARBIDE CORPORATION; COOPER INDUSTRIES, INC., Individually and as Successor to PNEUMO ABEX CORPORATION and THE FLINTKOTE COMPANY Defendants. BRAZORIA COUNTY, TEXAS ^7<3tociAL DISTRICT PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: PLAINTIFF'S EXHIBIT KG-497II COMES NOW, Plaintiff KEJLLY-MOORE PAINT COMPANY, INC., hereinafter referred to as ,CKM" and files this Original Petition complaining o DOW CHEMICAL COMPANY, Individually and its SUCCESSOR BY MERGER TO UNION CARBIDE CORPORATION, UNION CARBIDE CORPORATION, COOPER INDUSTRIES, INC., Individually and as SUCCESSOR BY MERGER "TO PNEUMO ABEX CORPORATION and THE FLINTKOTE COMPANY and would show unto the Court as follows. I. Plaintiff requests that this lawsuit be governed by Discovery Plan Level 2 pursuant to Rule 190.3 of the Texas Rules of Civil Procedure, f. n. Plaintiffis a corporation incorporated under the laws ofthe State ofCalifornia, with its principal place ofbusiness in California. Defendant DOW CHEMICAL COMPANY, Individually and as SUCCESSOR BY MERGER TO UNION CARBIDE CORPORATION, may be served with process through its registered agent, C.T, Corporation Systems, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201. Defendant UNION CARBIDE CORPORATION, may be served with process through its * registered agent, C. T. Corporation, 1021 Main Street, Suite 1150, Houston, Texas 77002. Defendant COOPER INDUSTRIES, INC., Individually and as Successor-In-Interest to Pneumo Abex Corporation may be served with citation by serving its registered agent, to wit: C.T. Corporation System, 721 Main Street, Suite 1150, Houston, Texas 77002. Defendant Cooper Industries, Inc. maintains its principal place ofbusiness in Houston, Texas. Although Defendant THE FLINTKOTE COMPANY has at all times relevant to this litigation conducted business in this State and is required to maintain a registered agent for service of process, it has not designated such an agent. Therefore, said corporation may be served with process through its home office address, Three Embarcadero Center, Suite 1190, San Francisco, California 94111-4047, pursuant to the Texas Long-Arm Statute, Tex. Civ. Prac. & Rem. Code 17.041-.045. Defendant TOE FLINTKOTE COMPANY may be served with process through the Secretary of State ofTexas. I IV HI. 1 ' This court has jurisdiction over this case, and the damages sought are within the jurisdictional limits ofthis Court. Venue is proper in this county because the cause ofaction and/or a part thereof accrued in 'this county. Additionally, Defendant DOW CHEMICAL COMPANY resides in this county and/or maintains a principal place of business in this county. IV. This is a com-mercial dispute that includes allegations offraud, negligent mis*r*epresentation, conspiracy and other causes ofaction. KM is and always has been principally a manufacturer ofpaint products. During the 1960's and 1970's, in a departure from its principal business, KM manufactured certain asbestos-containing joint compounds under the PACO brand name. Defendant UC engaged in the mining and sale of raw asbestos fiber, sold under the brand name Caiidria, from 1958 until 1986. Defendant UC sold tons ofraw asbestos fiber to KM between 1963 and 1978 for use in KM's joint compounds. Defendant UC was a charter member of the Industrial Hygiene Foundation, a key player in the conspiracy to suppress knowledge regarding the hazards of asbestos. Defendant Cooper Industries is the legal successor and/or is contractually liable for the negligent acts ofPneumo Abex Corporation. Pneumo Abex Corporation, through its predecessor American Brake Shoe Company* entered into an agreement in 1936 with the Saranac Laboratory to conduct research on asbestos. Pneumo Abex Corporation conspired along with Johns-Manvilie, Raybestos-Manhattan and others to delete all references to asbestos causing cancer in the published account of the Saranac studies. As a result, the published medical and scientific literature, upon 1 Tvwhich KM relied, was distorted. Defendant Flintkote owned and operated an asbestos mine in Canada from 1946-1970. During that time, Flintkote was a member of the Quebec Asbestos Mining Association. QAMA participated in the suppression ofthe Saranac study, as well as the suppression and alteration ofthe Braun/Traun study in 1957 and 1958. r' Defendants Dow, UC, Cooper and Flintkote conspired with Johns-Manville, Raybestos- Manhattan, members ofthe Industrial Hygiene Foundation, members of the Quebec Asbestos Mining Association and others, hereinafter referred to as "the Conspirators", to suppress, distort and * misrepresent information concerning health risks to users ofasbestos products. UC, in furtherance ofthis conspiracy, advised KM that the use ofCalidria was safe and would not result in physical harm r to users ofPACO products.' UC's representations were false and were made intentionally with the r purpose ofinducing KM to buy UC's asbestos fiber, COUNTONE NEGLIGENT MISREPRESENTATION Defendants are liable to Plaintiffunder Section 522 ofthe RESTATEMENT (SECOND) OF TORTS, in supplying false information for theguidance ofothers in their business transactions. Said statements were made by Defendants in the course oftheir business or in transactions in which they had a pecuniary interest; said representations were false and made for the guidance ofothers in their business; said statements involved a material fact concerning the character or quality ofthe product in question; and upon which representation justifiably KM relied. Defendants failed to exercise reasonable care in communicating this information and as a result KM suffered pecuniary losses. Defendants made misrepresentations and actively concealed adverse information at a time when the Defendants knew, or should have known, that asbestos fiber had defects, dangers, and ( I f T. .. ' `characteristics that were other than what the Defendants had represented to KM and the consuming t public, Specifically, Defendants misrepresented to and/or actively concealed from Plaintiffand the coriswning public that 1. The use ofasbestos-containing products involved tremendous risk ofphysical injury to users and bystanders of the users ofthe asbestos-containing products; 2. As early as the 1930's, Defendants and their fellow conspirators had studied asbestos in animals and determined that asbestos caused lung cancer. To the contrary Defendants and theirfellow conspirators changed the results ofpublished studies by Dr. teroy Gardner and others and affirmatively stated that asbestos did not cause A cancer in any form. 3. The use ofasbestos at levels below the TLV or threshold limit value would result in physical injury to users Of PACO and other asbestos-containing products. The Conspirators were aware since the 1930's that the TLV of5 million particles per cubic foot was inadequate and would not protect users of asbestos-containing products. Nevertheless, the Conspirators continued to represent to the public and to KM that the TLV was a "safe level ofexposure". The Conspirators knew at the time ofthese representations that asbestos could cause disease" at far lower levels and that mesothelioma could result from bnef and relatively low levels of ejqjosures to asbestos.At the time KM purchased asbestos fiber from the Conspirators, the Conspirators knew that KM would use the fiber in asbestos-containing products. The Conspirators knew that their knowledge regarding health risks of asbestos was more accurate and complete than, the information available in the published medical and scientific literature and than the knowledge possessed by KM. i ''The Conspirators owed a duty to KM to reveal what they knew to be the truth regarding the health risks of asbestos. Instead of revealing this information, the Conspirators suppressed it and in fact were responsible for disseminating information that was absolutely contrary to their internal knowledge. KM was injured by the Conspirators' negligent misrepresentations in that KM bought fiber from Union Carbide and used Calidria asbestos fiber in KM'S PACO products. But for the acts of the Conspirators, KM would not have entered into the production of asbestos-containing PACO products. Had KM foregone commercial production ofasbestos-containing PACO, KM could have redirected its resources to other ventures. Further, KM has spent millions of dollars in asbestos litigation costs and other damages which proximately resulted therefrom. COUNT TWO f CIVIL CONSPIRACY Plaintiff further alleges that Defendants and/or their predecessors-in-interest knowingly agreed, contrived, combined, confederated and conspired among themselves to willfullymisrepresent and suppress thetruth as to the risks and dangers associated with the use ofand exposure to asbestos. During the time that KM purchased asbestos fiber from the Conspirators, the Conspirators interfered with the development of the medical and scientific literature by suppressing and altering scientific publications, distorting the published medical and scientific literature and underwriting scientific research into the health hazards ofasbestos, only to suppress and misrepresent the results. In furtherance of said conspiracies, Defendants performed the following overt acts: (a) formany decades. Defendants, individually, jointly, and in conspiracywith each other, have been to possession of medical and scientific data, literature and test reports which clearly indicated that the inhalation ofasbestos dust and fibers resulting from I tv th4 ordinary and foreseeable use of said asbestos-containing products was . unreasonably dangerous, hazardous, deleterious to human health, carcinogenic, and potentially deadly; (b) despite the medical and scientific data, literature and test reports possessed by and available to Defendants, Defendants individually, jointly, and in conspiracy with each - other, fraudulently, willfully, and maliciously: (1) withheld, concealed and suppressed said medical and scientific data, literature, and test reports regarding the risks ofasbestosis, Gancer, mesothelioma, and other illnesses and diseases resulting from exposure to asbestos; (2) caused to be released, published and disseminated medical and scientific data, literature, and test reports containing information and statements regarding the risks ofasbestosis, cancer, mesothelioma and other illnesses and diseases, which Defendants knewwere incorrect, incomplete, outdated and misleading; and (3) distorted the results of medical examinations conducted upon workers who were being exposed to asbestos dust and fibers by falsely stating and/or f concealing the nature and extent of the harnrto which those workers were suffering from asbestos-related illnesses. Plaintiff reasonably and in good faith relied upon the false and fraudulent representations, omissions and concealments made by the Defendants regarding the nature of asbestos and/or asbestos-containing products. TheConspirators knew that KM and other manufacturers ofasbestos- containing products would rely upon the representations made by the Conspirators. As a direct and proximate result of Plaintiffs' reliance on Defendants' false and fraudulent ' ^representations, oiKissions and concealments, Plaintiffs sustained pecuniary damages. ' ' COUNT THREE AIDING AND ABETTING The actions ofall Defendants aided, abetted, encouraged, induced or directed the negligent and/or intentional acts ofeach and every other Defendant, Each of the Defendants knew or should have known that its individual actions would combine to cause Plaintiffs damages. The actions of each ofthe Defendants is a proximate cause ofPlaintiffs damages. As a result, all Defendants are jointly liable for the damage caused by their combined actions. The Defendants participated in a scheme to defraud purchasers of their asbestos products, a includingKM, by suppressing the dissemination ofinformation about asbestos-related health hazards and by concealing what they knew about the true nature of such hazards. Defendants agreed to spread false information and omit material-information regarding asbestos-related health risks. In furtherance ofthis scheme. Defendants edited, suppressed, altered and/or limited the publication of asbestos-related health risk studies by researchers. These actions distorted the available medical and scientific literature upon which KM relied. COUNTFOUR PUNITIVE DAMAGES Defendants knowingly concealed and suppressed from KM the risks associated with the use ofasbestos. Defendants' acts in furtherance oftheirsecret conspiracy constitute knowing, fraudulent, wilful and malicious conduct. Defendants and their predecessors-in-interest, consciously and/or deliberately engaged in oppression, fraud, wilfolness, wantonness and/or malice with regard to the Plaintiffand should be held liable in punitive and exemplary damages to Plaintiff. ''iiK'if*'* I WHEREFORE, PREMISES CONSIDERED, Plaintiff demands judgment against the Defendants, and each of them, jointly and severally, for general damages, special damages, for punitive and exemplary damages, fortheir costs expended herein, for prejudgment Hnd postjudgment interest on thejudgment at the rate allowed by law, and For such other and flirther relief, both at law and in equity, to which Plaintiff may show itselfjustly entitled. Respectfully submitted, Patrick N. Haines T.B.#: 00784191 6810 F.M. 1960 West Houston, TX 77069 Tel. (713) 659-5200 Fax: (713) 659-2204 ~ ATTORNEYS FOR PLAINTIFF JURY DEMAND Plaintiffdemands that all issues offeet in this case be tried to a properly impaneled jury.