Document RjgQG5wE0KBMxdVbn1QMqgxK8

STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY BElAM'BEAgfcEY, d EERICR1 BEASLEY WENDELL BEASLEY and MONIQUE BEASLEY, all minors, ^ /Plaintiffs,^ '`VS 1 No, 74 002312 NO THE CITY OF DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. NOW COMES the City of Detroit, a municipal corporation by and through its attorneys, Kermit Bailer, Corporation Counsel, Thomas J. O'Dowd and Alvin R. Davidson, Assistants Corporation .Counsel, and amends its answer to the complaint of the plaintiffs as follows: that section of the answer incorrectly labelled Affirmative Defenses is hereby amended to read AFFIRMATIVE PLEADINGS. The ten paragraphs comprising said AFFIRMATIVE PLEADINGS remain the same as those included under the incorrect Affirmative Defenses. WHEREFORE, it is prayed that this action be dismissed against the defendant. City of Detroit, and that the Honorable Court grant such other relief as it deems necessary and equitable. Alvin R, Davidson Assistant Corporation Counsel City of Detroit 1010 City-County Building Detroit, Michigan 48226 (313) 224-6943 f -J NL 000039230 N26060 STATE OF MICHIGAN Ifj I'M! 'IfcifiUlT COUR.T FOR THE COUNTY OR WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY REAjSJ.Ef,* DFRRl.pK:.UTip:jiY SjIRfiL:. ij$ Y- and" MfOSBltp; BEASLEY, all minors, Plaintiff s, VS No. 74 002312 NO THE CITY OF DETROIT, a Municipal Corporation and N. L. INDUSTRIES, INC., a New Jer sey Corporation, jointly and severally. Defendants. / ROBERT H. GOLDEN (P 14108) Of Counsel attorney for Plaintiffs G. CAMERON BUCHANAN <P 11340) Attorney for Defendant, N. L. Industries, Inc. ALVIN R. DAVIDSON, (P 12567) Attorney for Defendant, City of Detroit k t AMENDED ANSWER OF DEFENDANT CITY OF DETROIT Hermit Bailer . Corporation Counsel Thomas J. O'Dowd Alvin R. Davidson Assistants Corporation Counsel Attorneys for Defendant City of, Detroit 1010 City-County Building Detroit, Michigan 48226 (313) 224-6943 NL 000039231 N 26060.01 Hkxt 'M Miftnuftn IH THIS CIRCUIT COURT FOR THU COUNTY OF WAYJIE GLADYS BEASLEY, Iud.IviJurt.lly end 33 Next Friend of STEVE:-; BEASLEY, WIAK;. 'BfiAS'LSSSf-'; ; b^S#'L%> W2HDELL BEASLEY anil MONIQUE BEASLEY, all minora. Plaintiffs, v. OrUpCjE HILt-IAM LEO CAKALAJJ, P-U50 Civil Actipn o. 74-002-312 WO THE CITY OF DETROIT, a Municipal corporation, and H. L. INDUSTRIES, INC., a Hew Jersey Corporation, jointly and severally. Defendants. BARREN and Jcnoppow Byi Ronald H. Barron, P-10493 Attorneys for Plaintiff GAIJAW, LUCOW, MILLET, LET 1AM, et al By* MiltonL'icow, F-16344 Attorneys for Defendant, CITY OF DETROIT MORBACH, CHEATHAM MacARTHUR By* Charles C. Cheatham, P-11815 Attorneys for Pa fend ant., *J. L. 2TCEU3TRTT3 ANSWER TO PLAINT I iF ' 3 A'vTK'T COMPLAINT BY DUFiEiDAliT, CITY OF DETROIT ____ Now comas the defer.dmt, c t iy OF DETROIT, a Municipal. corporation, ONLY, by and through, itn attorneys, GARAE, LUTOW, MILLER, LfiHJSAN, SEWARD t COOPER, P.C., and in -'n:for to plainti f C*s Amended Cor-,plaint, admits, denies and alleges as follows*- ORHERAL JURISDICTIONAL AVERMENTS 1. This defendant incorporates herein by reference and makes a part hereof its answer to plaintiff's original complaint pertaining to jurisdictional averments. COUNT I 1. This defendant incorporates by reference the complete original answer to the origin**l r-~-u'i.'iinf-_ and supplements thn same with specific NL 000039232 refermice to paragraphs sst: forth In the friended Complaint. COOPT II 1. Tills defendant tn.eorj>oratea herein by reference and makes a part hereof Its original gOh'?'- COPHT XIX 1. This defendant incorporates herein by reference and makes a part hereof its answer to Count III of plaintiffs original complaint. COOPT IV 1. This defendant incorporates herein by reference and makes i* part hereof its answer to Count IV of plaintiff's original complaint. COOPT V 1. This defendant incorporates herein by reference and makes a part hereof its answer to Count 7 of plaintiff's original complaint. COOPT VI 1. Tnis tioCendant incorporates herein by. reference and makes a part hereof its answer to Count VT. of r>lainttf *n original cor. plaint. 2. Further answering the now matter therein , al l eg ad; this defendant neither admits nor denies the sane, not h.wirg safficient information to form a belief and leaves the plaintiff to her proofs, c o u n t vxi 1. This defendant incorporates herein by reference and makes a part, hereof its answer to Count VII of plaintiff's original complaint. COUNT VIII 1. This defendant adapts and incorporate.-* heroin- by reference Its answer to the origin'!? or--r.-i.r NL 000039233 1. This deSandant adopts and incorporates herein, by roferance it* answer to the original complaint. 1. This defendant adopts and incorporates herein by refetene* it* .answer to the original complaint, COdMT XI 1. This defendant adopts and incorporates herein by reference its answer to the original complaint. .4 f WHEREFORE, till a defendant prays tint plain' iff'a complaint and amended complaint be d i ijoissod as to thiv -to'-ndant, with costa go wrongfully sustained to this deiynunnt. tjQ'il V.'.-'- OP XVE T-h .ST ] ll'i, Mow comes the above nr-ed jfrsuda.-'t, *' '' CE moot?, a .imicipal Corporation# ONLY, by and through its attorney*, cwc-i, l u c q w , HILLER, LEItMAM, SEWARD COOEE-., F and gives.notica that the following will constitute its affirm tiv- defense in t-he above. orunes 1. This do fondant iu-.r'r?>-'sf*tcs imroin !: / rc/'oronco and ~ni:na a part hereof its affirmative dafonses an alleged in their original answer and in their amended answer. 2. This defendant pleads the Statute of Limitations in barring thi* aotion. 3. This defendant affirmatively state* that this nation should ho dismissed as to this defo-v'ent because of go ver/r'natal immunity afforded to thia defendant. NL 000039234 WHEREFORE, this defendant prays that plaintiff's complaint and amended complaint h-c? dismissed as to this defendant, with cost b o wrong-- fully sustained to this defendant. DATED1 June 7, 1977 Detroit, Michigan GAiUUi, LiJCOW, MILLER, LEKMAM, SEWARD I, COOPER, P.C. ; - V /9/ Milton iucow 111 I ton Lucow -------- Attorneys for Defendant, CITY OP DETROIT, ONLY SSI East Jefferson Avenue Detroit, Michigan, 48226 962-5180 t -4 - NL 000039235 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLAUYS BEASLEY, et al, Plaintiffs -vs- Case No. 74-002-312 NO CITY OF DETROIT, a municipal corjjpyatiqn aji^ N. L. INDUSTRIES^ INC., a New Jersey cdrp. , jointly and severally, Defendants / SECOND STIPULATION FOR ADJOURNMENT OF PRE-TRIAL IT IS HEREBY STIPULATED and agreed by and between the parties, through their respective counsel, that the discovery deadline date should be ninety days from the date hereof and that a , Pre-Trial should be set up as soon as possible by the court after said ninety days have elapsed. BARRON AND KNOPPOW BY; ________________________________________ Ronald M. Barron Attorneys for Plaintiffs 3001 W. Big Beaver Suite 326 Troy, Michigan 48084 649-2828 Milton Lucew Att. For Def. City of Detroit 561 East Jefferson Detroit, Michigan ORDER Charles B. Cheatham Att. for Def. N.L. Industries 2450 Buhl Building Detroit, Michigan At a session of said court held in the City of Detroit, County of.^ltfayne. State of Michigan, on,n:i-1 j-'-'__________________________________________ PRESENT: HONORABLE Circu ,f^eC/^LAN On reading the attached Stipulation and the Court being fully advised in the premises; NL 000039236 N 26060.02 L A W O FFICES B A RRO N A N D K NO FP O W . SOOT W EST BIG B E A V E R -R O A D . G B iT E 3 2 6 . TRO Y. M IC H IG A N 4 8 0 8 4 (3 U > 6 4 8 -2 8 2 8 IT IS HEREBY ORDERED that the discovery deadline date should be ninety days froro. the (late hereof and that a Pre-Trial should be set up- as. spon as possible by the court after said ninety days have elapsed. WILLIAM LEO CAHALAN Circuit Court Judge " ' ' v-."A TRUE COPY JAMES' R. KILLEEN , X'-, CLERK BY " De p u t y Cl e r k ML 000039237 JUN 1 19/7 I io % STAT3: OF tilCHIG? IN THE CIRCUIT COURT FOR THE CQUHTY OF: WAYNE Gladys Beasley, individually and as Next Friend of Steven Beasley, Wendell^ Beasley and Monigue Beasley, all minors. Plaintiffs, Civil Action No. 74-002-312-NOt * The City of Detroit, a municipal corporation, and N. L. Industries, Inc., a New Jersey Corporation, jointly and severally. Defendants. / PRE-TRIAL ORDER TO ANSWER AMENDED COMPLAINT AND INTERROGATORIES . !f V J. i Ronald M. Barron ; 3001 W. Big Beaver - Suite 326 Troy, Michigan 48084 Attorney for Plaintiff. H j; .Roy E. Costello 561 E. Jefferson Avenue j Detroit, Michigan 48226 ` Attorney for City of Detroit. ' i Charles C. Cheatham 2450 Buhl Building Detroit, Michigan 48226 Attorney for N. L. industries. WL 000039238 N 26060.03 STATE OF MICHIGAN IN THE CgECUIT COURT FOR THE COUNTY Of: WAYNE Gladys Beasley, individually and as Next Friend of Steven Beasley, Wendell:Beasley and Monique Beasley, all minors. Plaintiffs, vs. The City of Detroit, a municipal corporation, and N. L. Industries, Inc a Nevir Jersey Corporation, jointly and severally. Civil Action No. 74-002-312-NO jf Defendants. ___________________ PRE-TRIAD ORDER At a session of said court held in the City of Detroit, County of Wayne, State of Michigan, on nAY 5 1 1977 PRESENT: HONORABLE WILLIAM LEO CAHALAN Circuit Court Judge Parties having appeared for Pre-Trial Conference on May 24, 1977, it appears that the following must be accom plished prior to the formal Pre-Trial Conference, IT IS HEREBY ORDERED that Defendant City of- Detroit will file an answer to the amended complaint and to additional interrogatories of the plaintiff within two weeks. Defendant N. L. Industries will file answers to plaintiff's interrogatories within 30 days. WILLIAM LEO CAHALAN NL 000039239 ISTATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, et al. Plaintiffs, -vsCITY-OF DETROIT and N. !>. INtlisTRIEE:.,' iNC'., Defendants. Hon. William Cahalan (P11509) No. 74-002-312 NO SUBSTITUTION OF ATTORNEYS TO: THE CLERK OF THE COURT -and- ALL ATTORNEYS OF RECORD PLEASE TAKE NOTICE that the undersigned has this da^ been substituted as attorney for the defendant N. L. INDUSTRIES, INC., only, in the above-entitled cause in the place and stead of BUCHANAN, OGNE and JINKS. MORBACH, CHEATHAM and MacARTHUR BY: CHARLES C. CHEATHAM (P11815) Attorneys for Defendant N.L.Industries 2450 Buhl Building Detroit, Michigan 48226 964-1146 DATED: APRIL , 1977 I HEREBY CONSENT TO THE ABOVE SUBSTITUTION l AND WITHDRAW MY APPEARANCE. BUCHANAN, OGNE & JINKS BY: G. CAMERON BUCHANAN uw Orpic c # REACH, CHEATHAM & Ma c ARTHUR np idHt auiLOtMe "Oir. MICHIGAN Aeas f3!3) 964*1346 NL 000039240 N 26060.04 STATE Or MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY' OF WAYNE GLADYS'. B.SVSE?;> Individually -a,s!:: SfEVlET 13 #!:' SEAStilY| .fl'EiffilCK: 0:cAStf:,:' BEASLEY, all minors, iPlaiqfjiffs, -VS- THE CITY OF DETROIT, a Municipal' Corporation appN.E. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. __________ ! / ROBERT H. GQLDEN (Pi 4108) . Of Counsel Attorney for Plaintiffs ALVIN R. DAVIDSON (PI2567) Attorney for Defendant: No. 74-002312 NO ANSWER NOW COMES the City of Detroit, a municipal corporation, by and through its attorneys, Robert Reese, Corporation CounselThomas J. O'Dowd and Alvin R. Davidson, Assistants Corporation Counsel, and answers the complaint of the plaintiffs as follows: GENERAL JURISDICTIONAL AVERMENTS 1. Paragraph 1 is affirmed. 2. Paragraph 2 is affirmed. ' 3. Paragraph 3 is neither affirmed nor denied by.'the defendant herein for lack of proofs on which to form an opinion. 4. Paragraph 4 is affirmed. COUNT 1 . 1. Paragraph T is affirmed to the extent that plaintiffs occupied same, but defendants' records show initial occupancy on November 6, 1969. Defendant denies any express or implied warranties inure to the monthly lease. -2- NL 000039241 N 26060.05 2. Paragraph 2 is affirmed.. 3. Paragraph 3 is affirmed. 4. Paragraph 4 is affirhied. 5. Palha.ghapfe; 5 is iffiped!' to the extent that tbe- business; of the cp^dpfepda'nt causes an increase in the amount of lead particles in the air surrounding said co^defendant's business, but the remaining allegations must be denied for lack of knowledge thereof, leaving plaintiffs to their proofs. 6. Paragraph 6 is neither affirmed nor denied, leaving plaintiffs to their proofs. 7. Paragraph 7 is neither affirmed nor denied, leaving plaintiffs to their proofs. .* 8. Paragraph 8 is neither affirmed nor denied, leaving plaintiffs to their proofs. 9. Paragraph 9 is neither affirmed nor denied, leaving plaintiffs to their proofs. 10. Paragraph 10 is neither affirmed nor denied, leaving plaintiffs to their proofs. 11. Paragraph 11 is denied to the extent the defendant herein is alleged to have contributed to the pollution of the air and atmosphere, but is neither affirmed nor denied relative to the balance of the paragraph, leaving plaintiffs to their proofs. '1 COUNT II 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied specifically, as defendant was neither negligent nor in breach of any warranty, express or implied. Defendant answers the sub-, sections of this paragraph as follows: A, Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is affirmed to the extent that the air throughout the City of Detroit is infiltrated by lead and other chemicals from automobile exhausts. Any other meaning implied by the plaintiffs is left to their proofs. - 3- ML 000039242 C, Subsection C is neither affirmed nor denied, Taavihg plaintiffs to their proofs. COUNT III 1. The defendant,, City of Detroit,; incorporates by reference thereto, all of the.-answers heretofore appearing in this finsc/eri as though fully set put herein. 2. Paragraph 2. is denied. Defendant answers the subsections of this para graph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is neither affirmed nor denied, plaintiffs being left _* r to their proofs. .C. Subsection C is neither affirmed nor denied, plaintiffs being left to their proofs. 0. Subsection D is denied. Defendant City of Detroit lacked the knowledge, capability and jurisdiction to effect the air in and around plaintiffs' dwelling. COUNT IV 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and: domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomatology set out in para graph 3, but denies the allegations of permanent physiological or physical damage. COUNT V ' 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec- tancy and domicile, but the remaining allegations set out therein are denied. -4- NL 000039243 cow vi: 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. paragraph 2 is affirmed as tp the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symtomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VII , '? 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set-out therein are denied. 3. Defendant neither affirms nor denies the symptomatology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VIII . 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. AFFIRMATIVE DEFENSES The defendant herein, the City of Detroit, sets forth the following affirmative defenses to the plaintiffs' Complaint: -5- Nl 000039244 1,' The elevated bipod-lead levels of the; plaintiffs' in this: cause are; variables which constitute ambiguous measurements, and are not evidence, per se, of lead poisoning, but of a condition which lends itself to treatment by chelation therapy. Z. That the elevated blood-lead levels of the plaintiffs in this cause were not proximately caused by any negligent actions of the City of Detroit, but by the actions of National Lead Industries, Inc, 3. That the numeroys paintings of the structures known as public housing by the City of Detroit was an attempt to make and maintain those structures in a - maniVer consistent,with what is generally known as decent. 4. That the state of the technology of paint production open to both the Cjty of Detroit and consumers generally was so primitive until the 1960's that most of the paint sold, and purchased exceeded the generally recognized 'safe' limits of lead compounds insisted upon today by Federal regulations. 5. That to hold the City of Detroit liable for the use of such paints when the dangers in those paints of lead base were virtually unknown would be analo gous to strict liability. 6. That the condition of children eating paint chips or chewing paint from some painted surface in public housing was not foreseeable and was not consistent with the purposes for which the paint was used by the defendant. City of Detroit. ' 7. That prior to the plaintiffs moving into the building at 4803 E. Nevada, that unit was painted throughout with non-lead, or low-lead based paint. 8. That plaintiff, Gladys Beasley, never complained to the building manager' about the condition of any painted surface in her home, but the City of Detroit, through an enforcement program initiated by the Department of Health, scraped and removed questionable chipping paint from the interior and exterior of plaintiffs' dwelling beginning in February, 1973. 9. That the-plaintiff, Gladys Beasley, knows and knew of her children's, plaintiffs, propensity to put non-food items into their mouths by virtue of her close supervision of said children, but in not stopping said con duct, was negligent by her inaction. - The children, in ingesting non-food items were contributing factors to their own illnesses, and thus, contri- butorily negligent. -6- NL 000039245 10. That the detection1 and epfoTeeinent of clean air laws i:s the duty of the Wayne County pollution Control Center by'statute, Act 306 of1 P.A. of' 1927 (MCI.A 82:7,205 and 206); and that those antipollutipin laws may be enforced by spy citizen of th^ State of'.lficbiflan, Act 1?7 of P.A. of 1970 (MCLA 691.12:02). .WHEREFORE, it is prayed that this action be dismissed against the defendant. City of Detroit, and that this Honorable Court grant such other relief as it deems necessary and equitable. DATED: March 6, 1974 Alvin R. Davidson Assistant Corporation Counsel City of Detroit j 1010 City-County. Building Detroit, Michigan'. 48226 (313) 224-6943; 224-3423 -7- NL 000039246 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY QF WAYNE GLADYSi BEASLEY> Individually and ftS:;;!;Ndxfc;=?B::dndt;dfSf Ellt tlfetlY i, BRIM:BsiYSLEYy piftNittfiiBtlBtEif,' ^' a#i:!: ' BEASLEY, al1 minors, Plaintiffs, -vs- THE CITY OF DETROIT, a Municipal Corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. ___________/ ROBERT H. GOLDEN {PI4108) Of Counsel Attorney for Plaintiffs ALVIN R. DAVIDSON (PI2567) Attorney for Defendant No. 74-002312 NO ANSWER ROBERT REESE, Corporation Counsel. THOMAS J. O'DOWD, ALVIN R. DAVIDSON, Assistants Corporation Counsel Attorneys for Defendant 1010 City-County Building Detroit, .Mi chi nan 48226 (313) 224-6943; 224-3423 fjL 000039247 i; ij j! STATE OF MICHIGAN if I IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE I GLA.DYS BEASLEY, individually and I as Next Friend1 of jiiSTEVE'Ni: BEASLEY, ij BRIAN BEASLEY, DERRICK BEASLEY, ! BEASLEY, all minors. Plaintiffis, -vs- No: 74 002312 HO THE CITY OF DETROIT, a Municipal Corporation; and NL INDUSTRIES, INC., a Hew Jersey Corporation, jointly and severally, Defendants. ANSWER TO FLAINTTrrE' AMENDED COMPLAINT How comes the Defendant, KL INDUSTRIES, INC., a New Jersey Corporation, by BUCHANAN, OGNE AND JINKS P.C., its Attorneys, and in answer to the Plaintiffs' pleading captioned !: Amended Complaint nays: i- :: GENERAL JURISDICTIONAL AVERMENTS i ~ 1. Rsfnndartt adopts and incorporates by reference the Answer filed to the oriqinnl Como is .In t pertaining to ir ` Jurisdictional Averments. ADOPTION AND INCORPORATION BY REFERENCE OF ORIGINAL.. ANSWER 1. Defendant, NL INDUSTRIES, INC., adopts and incorporates by reference the complete original answer to the original Complaint and supplements the same with specific " reference to -parAcraphn set forth in thr 'mended Conpl.--hit 4. Answering paragraph ,f4 of Count I of the Amended ! Complaint, Defendant denies that in the conduct of its -1- NL 000039248 N 26060.06 :j business it acted in a willful, wanton or negligent manner; | denies that it violated any duties owing to the public or the plaintiffs; denies any duties to the plaintiffs in relation to i the allegations of their complaint. COUNT II Defendant adopts and incorporates by reference ii -! l, the complete original answer to the original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. COUNT III Defendant adopts and incorporates by reference the complete original answer fco the original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. c o o o t j v ._____ * i !: ' I I; j1. C-. fondant adopts and incorporates by reference . answer to paragraphs one through eleven of Count I of the i; original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. ' < > 2. Answering paragraph 2 of Count IV, Defendant- ! ) denies the allegations in said paragraph contained, avers that the said allegations are conclusion of the pleader, are surii ;i plusage and that the allegations of the complaint are in sufficient to constitute- a claim-of nuisance and on the trial of I i| this cause this Defendant will move to strike the allegation |i from the Amended Complaint. !{ COUNT V. _1 1. Defendant adopts and incorporates by reference answer to paragraphs one through eleven of Count I of the NL 000039249 original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. 2. Answering paragraph 2 of Count V, Defendant denies the allegations in said paragraph contained, avers that said allegations are not, in fact, true, and in further answer avers that other allegations of the Complaints do not support the language which simply constitutes a conclusion of the pleader, is surplusage and Defendant Will move to strike the allegations from the Complaint at the time of trial. COUNT VI. 1. Defendant adopts and incorporates by reference answer to paragraphs one through eleven of Count I of the original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. 2. Defendant denies the allegations in said paragraph contained, avers that the allegations are not, in fact true and in further answer avers that the allegations do not state a cause of action cognizable under the law of the State of Michigan. 3. Answering paragraph 3, Defendant denies the allegations in said paragraph contained, avers that the theory 1 of a right of recovery under strict liability is not recognized In the State of Michigan. COUNT VII. 1. Defendant has heretofore set forth and adopts :and incorporates by reference the answers to the original Complaint. COUNT VIII. 1. Defendant as heretofore set forth, adopts and -3- NL 00039250 incorporates by reference the answers to the original Complaint. COUNT IX. 1. Defendant as heretofore set forth, adopts and incorporates by reference the answers tc the original Complaint. COUNT X. 1. Defendant as heretofore set forth, adopts and int. COUNT XX. 1. Defendant as heretofore set forth, adopts and incorporates by reference the answers to the original Complaint. WHEREFORE, Defendant asks Judgment of no cause of action together with costs so wrongfully Incurred. BUCHANAN, GONE AND JINKS P.C. BY: ' _____ G. Cameron Buchanan P11346 ____________ Attorney for NL Industries, Inc. Suite 1707, 755 West Big Beaver Road Troy, Michigan, 48084 362 3707 Dated: March 8, 1977 -4- Nt 000039251 \ STATE, Qf^MIGB'CG^N IN THE CIRCUIT COURT' FOR THE COUNTS' OF WAYNE GLADYS BEASLEY, individually and. as Next Friend of STEVEN BEASLEY, BRIAN,, b e a s ie j ?,, d e n r ic ^ EEAHEESV; BEASLEY, all minors, 74 002 312 NO Ronald M. Barron Plaintiff Attorney \$. NL Industries, Inc. et al Defendant G. Cameron Buchanan P11340 Attorney Indicate that which applies: Auto Negligence ,,------ ------Other General Citil .---------Date of Service -- . (THIS SPACE FOR USE OF CLERIC ONLY) JURY_____________NON-JIRY ^; Assigned to JUDGE Notices Mailed .------- Assigned to Pre-Trial . OAT*. Adj. to _ Adj. toAdj. to - r\ AT ISSI-E'PRAECIPE IN Ciyil, ACTIONS Ct\if Action No. 74 002312 NO Praecipe No. __ GLADYS BEASLEY ET AL Plaintiff VS. NL INDUSTRIES, INC. ET AL To Clerk of Wayne County 201 City-County Bldg. Detroit, Michigan, 4K226 Defendant This action is at issue as to all the parties and has been assigned to JUDGE williaffl Cahalan 3/8/77 Dated . P11509 ^ 7f;qT^U Ronald M. Barron P10493 3001 W. Big Beaver Any. for PltL Road/ Troy, Mich. Suite 326 649 2828 Address Sylvester Delaney m* kJTf: City of Detroit P23690 .1010 City County Bldg Any. for Deft. Detroit, 224-6943 AtWresj Buchanan, Ogne & Jinks Telephone BY: NL Industries, Inc. Suite 1707, 755 W. Big Troy, Mioh 362-3707 Atty. Beaver Address Rd. Telephone Kill all blanks. In case of appearance in pro per the address of the party or panics must be given. 11 more space is needed, attach rider. NL 000039252 2. In the SieG.pnd line of Pab^gragih sis?,, Count I, of the original Complaint, Plaintiffs delete the words "three years" and in its place and stead place the words "several years". As to the remaining allegations in Paragraph six. Count I, of the original <*bmp.la4i*k, Plain;ti;ffs, rieiiterpte word for'.word and paragraph fpr paragraph .all fhes ^biegatiobs .contained therein as if fully stated herein. 3. P;lainti;ffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs seven through eleven Of Count I in the original Complaint as if fully stated herein. 4. That the aforesaid willful, wanton' and negligent acts of the Defendant, N. L. Industries, Inc., violated duties owing to1 the general public and more particularly, the Plaintiffs herein. COUNT II 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one and two of Count IX in the original Complaint as if fully stated herein. COUNT III I... Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one and two of Count III in the original Complaint as if fully stated herein. -2- NL 000039254 N 26060.07 COUNT IV 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid action? and/or emissions of the Defendant., N. L. INDUSTRIES, INC. created a nuisance in fact and in law by causing substantial inconvenience, interference and damages to the Plaintiffs in their pursuit of the lawful enjoyment; of their property and related rights. COUNT V 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid acts of the Defendant, N. L. INDUSTRIES INC. constituted a trespass by emitting fouled and lead burdened air containing contaminated particles onto Plaintiffs' property thereby invading Plaintiffs' rights to exclusive possession with out the consent of the Plaintiffs. COUNT VI 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid manufacturing process which Defendant, N. L. INDUSTRIES, INC. carried on in its factory is an ultra- NL 000039255 LAW OFFICES! .BARRON AND KNOPPOW, 3001 WEST BIG BEAVER ROAD. SUITE 3 2 8 . TROY. M IC H IG A N 4 8 0 8 4 . (313) 8 4 9 *2 9 2 9 hazardous activity in that it produces noxious lead burdened and fouled air; such noxious material escaping in the air in sufficient quantities endangering the life and. health of persons breathing the air. That the Plaintiffs are within the class of persons thast Qefendant'.s p:fa;i|Oexis>: agepts and employees bSCdgiiized or should have recognized as likely to be harmed by such emissions. 3, Therefore* Defendant, N. L. INDUSTRIES, Iffp. is strictly liable to Plaintiffs for injuries inflicted on them by Defendant's dangerous instrumentality, namely its factory, operated in furtherance of Defendant's ultrahazardous activity. COUNT VII 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count IVof the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. COUNT VIII 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count V of the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. ., COUNT IX 1. Plaintiffs reiterate word for word and paragraph for -4- NL 000039256 LAW O F F ,* * ; BARRON AND KNOPPOW. 3001 WEST BIO BEAVER ROAD, SUITE 32B , TROY, M ICHIG AN 4 BOS A, (313) 04B -2B 3B S" . ,, . paragraph all the allegations contained in Paragraphs one through three pf Count VI of the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added COUNT X 1, Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count VII of the original' Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. COUNT XI 1. Plaintiffs reiterate word for word, and'paragraph for paragraph all the allegations contained in Paragraphs one through three of Count VIII of the original Complaint as if fully stated herein with one exception, to-wit: In the. second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. WHEREFORE, Plaintiff, GLADYS BEASLEY, prays' judgment for Plaintiff and against Defendants, jointly and severally, in the sum of Five Million Dollars ($5,000,000.00) as compensatory and exemplary damages, or in such other sums as a court or jury upon a trial of this cause, shall deem just, fair and equitable, plus * costs, interest and attorney fees. -5- NL 000039257 X LAW OFFICES BARRON AND KNOPPOW. 3001 WEST BIO BEAVER ROAD. S U ITE S is . TRO T. M1CH.OAN 4BO B4. (313) M S .S S R S WHEREFORE:, your Plaintiff, GLADYS BEASLEY, as next friend of the minor Plaintiffs herein, prays judgment for said minor Plaintiffs in the sum of Five Million Dollars ($5.>000,000.00) each, as compensatory and exemplary damages, or in such other sum as a court or jury shall deem just, fair and equitable, plus costs, interest and attorney fees. BARRON AND KNOPPOW Da ted: November 8, 1976 By: _______________________ Ronald M, Barron Attorneys for Plaintiffs 3001 W. Big Reaver Suite Troy, Michigan ,48084 649-2828 326 -6- NL 000039258 L A W o m c s s B A R R O N A N D XNO PPO W , 3 0 0 1 W CST B IS BEAVER R O A D . B U ffE 3 3 6 . TRO Y, M IC H IG A N 4 0 :0 b -A-( (313) :649>28-2Q STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLAf>Y:> BEASLFY, individually: and Fpieisd, o|\.i'lTEipab. RiSASbEiY, sp|micK;' Be a s l e y , WRW^lEbL::'fiS^sijRS 'unjj'!'MpN:TQ!6i BEASLEY, all minors, Plaintiffs -VS- THE CITY OF DETROIT, a municipal corporation, and NV L. INDUSTRIES, INC. a; NOW Jersey Corporation, Jointly ar.c Severally, Defendants No. 74 002 312 NO / ORDER TO AMEND COMPLAINT At a session of said court held in the City of Detroit, County of Wayne, State of Michigan, on ; 1M/D _________________________ PRESENT: HONORABLE iru-#ASHj-D- Cir.cuit Court Judge This matter having come on to be heard, all parties being represented by counsel, and the Court being fully advised in the premises; IT IS HEREBY ORDERED that Plaintiffs' Complaint be amended so as to add counts for Strict Liability, Nuisance and Trespass. Circuit Court Judge Approved: XX / 9 ,________ Syl Delaney, Att.pfor City of Det. fi... G. Cameron Buchanan, Att. for N. L. Industries NL 000039259 N 26060.08 STATE OF MICHIGAN IN THE. CIRCUIT CQURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, individually arid as,.pi? BEiiSLSY, BRIAN BEASLEY, DERRICK BEASLEY, 'BiA^iS|:; arif /!:i|<3NTP:E' BEASLEY, all minors. Plaintiffs -vs- 0 THE CITY OF DETROIT, a municipal corporation, and 3. L. INDUSTRIES, INC. z < a Jew Jersey Corporation, jointly and 5 severally. 1 Defendants oei- __ ___________ ';/ No. 74 002 312 NO w 5 MOTION TO AMEND COMPLAINT./1. o oa< e NOW COMES the Plaintiffs, GLADYS BEASLEY,, individually and as Next Friend-of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY,'all minors, by and through their counsel, BARRON AND KNOPPOW, and hereby oo n moves this Honorable Court for leave to amend the Complaint so o5 II. 0. O as to add a count for strict liability, nuisance and trespass z* for the reasons stated in the attached Affidavit and Brief z ocz In Support thereof. rr < BARRON AND KNOPPOW loi. /Ronald M. Barron Attorneys for Plaintiffs 3001 W. Big Beaver Suite Troy, Michigan 48084 649-2828 326 ML 000039260 N 26060.09 STATE OF MICHIGAN) )SS COUNTY OF OAKLAND) AFFIDAVIT OF. RQNALD: M. BARRON IN SUPPORT OF MOTION R0NAP* BARRON, haying; beep duly. swupn, depa-pee and says: 1. That hp is the attorney of record fqr the Plaintiffs herein. 2. That the above entitled action was originally commenced on January 24, 1974, and was drafted by a previous attorney. 3. That the instant case is very'complicated in both law and fact. 4. The deponent was substituted as attorney for the Plaintiffs on March 3, 1976. 5. That the instant law suit originally plead causes of action in negligence and breach of warranty in that the Defendants had polluted the air and residence thereby causing brain damage to the Plaintiff's children. 6. That, the above.entitled action deals with a new body of law popularly referred to as "environmental law." 7. Deponent, after reviewing the limited Michigan law as well as the vast body of national law, believes the aforesaid added counts are supported by law. 8. That the pre-trial is scheduled for February 1, 1977, ' therefore, discovery has not been completed. 9. That the statute of limitations on the added counts has not expired. 10. That preparation and wort done to date by-attorney for Defendants are applicable to the new theories.. ML 000039261 \i 11. That granting the requested motion would avoid a multiplicity of protracted litigation and would be in the interest of the convenient administration of justice tp allow the filing of the Amended Complaint. 12- That attorney for 1, L. Industries was contacted by telephone to see if he would acquiesce to the relief prayed for, however, as of this date, he has not returned the phone call. 13. That attorney for City of Detroit was unable to be contacted due, to the fact that the attorney of record no longer is employed for said City of Detroit and no on at said city of Detroit knew who was going to / Ronald M. Barron Subscribed and sworn to before me this 18th day of October, 1976 f <? A ^i-r .r Eileen Terman - Oakland County `My Commission Expires: 10-11-77 ML 000039262 Y i; . ... ... : > BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Since the Defendants will not be substantially "pre judiced" by the, proposed Amendments, justice requires that leave be given in the instant case. General Court Rule Section 118.1 holds that leave to appeal should be "freely given when justice so requires." It has beep held that the court rule "incorporate a policy in favor of allowing amendments when justice would be served." Jones v. Causey, 43 Mich. App. 271, (19.73). While the trial court has the discretion to deny a motion to amend, it may only do so if the court specifically finds that justice would not be served by the amendment Doar. v. Chesapeak. Ohio Railroad, 18 Mich. App. 271, 171 NW2d 27 (1969). In order to find that justice would not be served by the amendment, the court must find that the opposing party would be "prejudiced" by the amendment, Ben P. Fyke & Sons;1 Inc. vs. Gunter Co., 390 Mich 649, 213 NW2d 134 (1973). The prejudice that it referred to in .Fyke is the time the amend ment is offered, not the subject matter. If due to the lapse of time from the initial complaint until the amendment, the opposing party would be prevented from maintaining a defense, only then should leave be denied. From the facts of this case (See Affidavit and Brief in Support of Motion attached hereto), it is clear that Defendants would not be so prejudiced by the delay in this case. The court in Fyke went on to hold that the discretion giver a judge to disallow the amendment is not boundless, the trial NL 000039263 \r V I V judge in order to disallow leave must find that justice would not be served i.e. that the opposing party would be unduly prejudiced. That not being the instant case, leave should be granted. xRonald'M. Barron Attorneys", for Plaintiffs 3001 W. Big Beaver Suite Trov/ Michigan 48084 `649-2828 326 LAW O PFICC3 BARRON ANO KNOPPOW, 3001 W EST BIO BEAVER HOAD. SUITE 3 i( l. THOY, M ICHIG AN 4Q 0S4. (313) ML 000039264 STATE OF MICHIGAN 1CUIT COURT FOR THE COUNTY OF WAYNE idividuallv and i. FILE WITH ASSIGNMENT CLERK ONLY PRAECIPE FOR MOTION Gladys Beasley et al plaintiff STATE OF MICHIGAN The Circuit Court for the County of Wayne VS City of Detroit et al defendant 74 002312 NO Civil Action No.. Criminal No. AT ISSUE PRAECIPE No. (if any) . N :Wv To the Assignment Clerk: Please place a motion for (state nature of motion in brief form) Motion To Amend Complaint_________________.___________________ on the motion calendar for (date) October 29, 1976 This action has been assigned to JUDGE. Rashid ___________________________ 19____ Adjourned to------------------------------------------------Adjourned to _ Adjourned to -- Disposition Attorney . Ronald M. Barron 649-2828 Telephone No.-------------------------------,------- Plaintiff G. Cameron Buchanan Attomey N7-l ; industries - Defendant Telephone No. . Attorney Telephone No.-______________;__________________ {list additional attorneys on other side) STATE OF MICHIGAN) )SS COUNTY OF OAKLAND) AFFIDAVIT OF RONALD M. BARRON IN SUPPORT OF MOTION L A W O FFIC E S B A ^ H S tJ A N D KNO PPO W ... 3 0 0 1 WJLST D IS R E A V E R RO AD, S H ITE M s . TR O Y . M IC H IG A N A8.Q9A. (313) RONALD M. BARRON, after having been duly sworn, deposes and says: 1. That he is fhe. attorney of record for the Plaintiffs herein. 2. That the above entitled action was originally commenced on January 24, 1974, and was drafted by a previous attorney. 3. That the instant case is very 'complicated in both law and fact. 4. The deponent was substituted as attorney for the Plaintiffs on March 3, 1976. 5. That the instant law suit originally plead causes of action in negligence and breach of warranty, in that the Defendant s had polluted the air and residence thereby causing brain damage to the Plaintiff's children. 6. That the above entitled action deals with a new body of law popularly referred to as "environmental law." 7. Deponent, after reviewing the limited Michigan law as well as the vast body of national law, believes the aforesaid added counts are supported by law. ' 8. That the pre-trial is Scheduled for February 1, 1977, ' therefore, discovery has not been completed.' 9. That the statute of limitations on the added counts has not expired. 10. That preparation and work done to date by attorney for Defendants are applicable to the,new theories. 11. That granting the requested motion would avoid a multiplicity of protracted litigation and would be in the interest of the convenient administration of justice to allow the filing of the Amended Complaint. 12. That attorney for N. L. Industries was contacted by telephone to see if he would acquiesce to the relief prayed for, however, as of this date, he has not returned the phone call. 13. That attorney for City of Detroit was unable to be contacted due to the fact that the attorney of record no longer is employed for said City of Detroit and no on at said City of Detroit knew who was going to Subscribed and sworn to before me this 18th day of October, 1976 __ r 0 ^ - ----- -----,-------------------------Eileen Tefman - Oakland County My Commission Expires: 10-11-77 ,I4. NL 000039267 x -. X'  BRIBE: IN SUBPORT OF, MOTION. TO: AMEBU eiOMPt&XNT Since the Defendants will not be substantially "pre judiced" by the proposed Amendments, justice requires that leave be given in the instant case. General Court Rule Section 118.1 holds that leave to appeal should be "freely giyen when justice so requires." It c has been held that the court rule "incorporate a policy in favor of allowing amendments when justice would be served." Jones v. Causey, 43 Miph. App. 271, (1973). While the trial court has the discretion to deny a motion to amend, it may only do so ffj the court specifically finds that justice would not be served by the amendment Doan v. Chesapeak Ohio Railroad, 18 Mich. App. 271, 171 NW2d; 27 (1969). In order to find that justice would not be served by the amendment, the court must find that the opposing party would be "prejudiced" by the amendment, Ben P. Fyke & Sons, Inc. vs. Gunter Co., 390 Mich 649, 213 NW2d 134 (1973). The prejudice that it referred to in Eyke is the time the amend ment is offered, not the subject matter. If due to the lapse of time from the initial complaint until the, amendment, the opposing party would be prevented from maintaining a defense, only then sjiould leave be denied. From the facts of this case (See Affidavit and Brief in Support of Motion attached hereto), it; is clear that Defendants would not be so prejudiced by the delay in this case. The court in Fyke went on to hold that the discretion giver a judge to disallow the amendment is not boundless, the trial ML 000039268 V judge in order to disallow leave must find -that justice would not be served i.e. that the opposing; party would be unduly prejudiced. That not being the instant case, leave should be granted. 'Ronald M. Barron Attorneys,for Plaintiffs 3001 W. Bi*g Beaver Suite Troy, Michigan 48084 649-2828 326 TRO Y. M IC H IG A N 4B O B A . (SI.TS M M M 4 | LAW OFFICES BARRON A N D KNOPPOW. SOOI WEST B IS BEAVER ROAD. SUITE I M . NL000 39269 LAW OFFICES BARRON A N D KNOPPOW, 3001 W EST B IS BEAVER ROAD. SUITE 3 2 6 . TROY. M ICHIG AN * 0 0 9 4 . (313)6:4 0*2828 tr*s. STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE, GLADYS BEASLEY, Et al. --vs- Plaintiffs THE CITY OF DETROIT, Et al. Defendants _______________ / No. 74-002-312 NO ORDER ADJOURNING PRE-TRIAL At a session of said court held in the City of Detroit, County of Wayne, State , Ynin7S of Michigan, on____________________________________/' l, u I U IDfTM PRESENT: HONORABLE _________WHUAM LEO CAHAtAN Circuit Court Judge On reading the attached Stipulation and the court being fully advised in the premises, IT IS HEREBY ORDERED that the pre-trial in the above cause be adjourned from August 31, 1976, to a date to be set by the court, said date to be a minimum of six months subsequent to August 31, 1976. f' fa /, /7 7 ? " ^ P. *<T/''h v u'J\M iro CAHALAN Circuit Court Judge ML 000039270 N 26060.1 L A W O FFIC E S B A RRO N A N D KNO PPO W . 3 0 0 1 W EST BIG BEAVER RO AD. S U ITE 3.2 ft. TRO Y. M IC H IG A N 4 8 0 Q 4 , (313), 8 4 ^ 3 6 2 0 STATE OF MICHIGAN IN THE, CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Et al Plaintiffs -vsTHE CITY OF DETROIT, Et al Defendants No. 74-002-312 NO / STIPULATION ADJOURNING PRE-TRIAL IT IS HEREBY STIPULATED by and between the parties, through their respective counsel, that the pre-trial in.the above cause be adjourned from August 31, 1976, to a date to be set by the court, said date to be a minimum of six months subsequent to August 31, 1976. BARRON AND KNOPPOW By: Ronald M. Barron Attorneys for Plaintiffs 3001 W. Big Beaver #326 Troy, Michigan 48084 649-2828 /si Alvin 'DaVldton_________ Alvin Davidson Attorney for Defendant, CITY OF DETROIT 1010 City-County Building Detroit, Michigan 48226 224-6943 G. Cameron Buchanan Attorney for Defendant, N. L. Industries, Inc. 755 West Big Beaver #1707 Troy, Michigan 48084 362-3707 ML 000039271 STATE OF MICHIGAN IN THE CIRCUIT COURTFOR THE COUNTY df WAYNE Peter Dozorc, Robert H. GoldenATTORNEY FOR PLAINTIFF Alvin R. Davidson G. Cameron Buchanan ATTORNEY FOR DEFENDANT PLAINTIFF i1 I i ACTION NO74 002 312 NOPRAECIPE NO! NOTICE TO ATTORNEYS: NO LATER THAN 10 DAYS AFTER RECEIPT OF THE PRE-TRIAL NOTICE. COUNSEL MUST SERVE A COPY OF THIS FORM COMPLETELY FILLED OUT ON ALL ATTORNEYS OF RECORD: THIS ACTION HAS BEEN SET FOR A PRE-TRIAL HEARING BEFORE THE HONORABLE ,-rnAgo w-i 11 ian. JCah.5Li.anON__________________ilul.Y. 2?, 1976____a t 2:15 p.m. ATTORNEYS MOST PRESENT THIS FORM, COMPLETELY FILLED OUT TO THE CLERK OF THE PRE-TRIAL JUDGE ON OR BEFORE THE DATE OF HEARING AND THEY MUST BE PREPARED TO COMPLY WITH ALL OF THE PROVISIONS OF MICHIGAN COURT RULE 301. _____G. Cameron BuchananWILL BE raE ATTORNEY PRESENTING THIS STATEMENT AND ATTENDING THE CONFERENCE AND WHO WILL REPRESENT_ N L Industries, Inc.___________________________________________- ____ 1. FACTUAL STATEMENT OF PLAINTIFFS CLAIMS OR DEFENDANTS CLAIMS, INCLUDING COUNTER CLAIMS, CROSS CLAIMS AND AFFIRMATIVE DEFENSES. (If space on this form is insufficient; counsel may prepare additional sheets and attach to this form.) The statement of your claim should be stated in language which the trial court may utilize to succinctly relate to the jury your claim or theory of your case. n l industries, Inc. will disclose that there is no relationship between the operation of Defendant's business and the alleged lead poisoning of the plaintiffs. Further, that the causes of the existing lead level in a number of the plaintiffs was within normal limits and increased to abnormal limits after the family moved from the area of defendant's business operation. The cause of the lead in the blood of the various plaintiffs is very well known to the plaintiff, well-documented in the medical records and clearly established to have been related to and caused by the conduct of the children with reference to paint in_the households wherein they resided. ' - ~ 2.4. WHAT, BRIEFLY, ARE THE FACTUAL AND LEGAL ISSUES TO BE LITIGATED? Relationship of allged lead poisoning of plaintiffs to manufacturing operations of NL Industries, Inc. NL 000039272 3. IF PLEADINGS ARE Nl SAl ISFACTORY AT THIS TIME, WHAT j RMAL AMENDMENTS WILL YOU REQUEST AT PRE-TRIAL? Pleadings are satisfactory. 4. WHY IS SUCH AMENDMENT NECESSARY? 5. WHY WAS IT NOT SOUGHT PRIOR TO PRE-TRIAL? INJURIES AND DAMAGES: 6. g iv e Na me s a n d a g e s o f in j u r e d p e r s o n s , a n d in d e a t h c a s e s , n a me s , RELATIONSHIP AND AGES OF PERSONS ALLEGING PECUNIARY LOSS. 7. LIST ALL INJURIES AND STATE WHETHER PERMANENT. 7a. IF PERMANENT, WHO WILL TESTIFY TO THIS? 8. LENGTH OF TIME INCAPACITATED, TIME IN HOSPITAL AND AT HOME. 9. ITEMIZE AND TOTAL: a. Hospital Bills b. Doctor Bills and c. Any other items or expenses incurred or loss suffered. 1i. 10. IF WAGES ARE LOST, GIVE PLACE AND TYPE OF EMPLOYMENT, DATES LOST, WAGES EARNED AT TIME OF ACCIDENT AND TOTAL AMOUNT OF WAGES LOST. NL 000033273 II. IN DEATH CASES, STATE AMOUNT OF PECUNIARY LOSS AND TOTAL AMOUNT EACH CLAIMANT PLAINTIFF CLAMS. (If space on this form is insufficient, counsel may prepare additional sheets and attach to this form.) 12. HAVE YOU FURNISHED THE OPPOSITE PARTY WITH YOUR DOCTOR'S DIAGNOSIS AND PROGNOSIS? 13. IF NOT, PLEASE EXPLAIN WHY. Defendant desires plaintiffs' doctor's diagnosis 14. IF DIAGNOSIS AND PROGNOSIS WILL NOT BE FURNISHED BY PRE-TRIAL CONFERENCE PLEASE EXPLAIN WHY. ADMISSIONS AND WAIVERS: OWNERSHIP AND OPERATION: ORDINANCES PLEADED:-. REASONABLENESS AND CAUSAi CONNECTION OF DOCTOR & HOSPITAL BILLS AND OTHER ITEMS OF DAMAGE, ETC. 15. ORDINANCES PLEADED: 16. (A) WHAT ADMISSIONS OF FACT ARE YOU PREPARED TO MAKE? None (B) WHAT ADMISSIONS OF FACT DO YOU DEMAND FROM OPPOSITE PARTY' That the cause of lead in above level of plaintiffs was due entirely to the conduct of plaintiff's children in consumption of paper, paint EXHIBITS:and various other objects covered by paint. 17. LIST AND EKlNGWITH YOU ALL EXHIBITS AND ANY OTHER EVIDENTIARY INFORMATION RELATING TO CASE, Children's Hospital and records of Detroit Board of Education MEDICAL EXAMINATION: 18. IS A FURTHER MEDICAL EXAMINATION NECESSARY?___(If so, steps should be taken to complete examination before the Pre-Trial Conference.) 19. JURY OR NON-JURY______ ,... ________________ ______ IF JURY, DEPOSIT OF THE JURY FEE MUST BE MADE BY THE CLOSE OF THE PRE-TRIAL CONFERENCE OR JURY IS WAIVED. IF JURY. CONSIDER SEPARATION OF ISSUES AND THE ORDER OF TRIAL WHEN SOME ISSUES ARE TO BE TRIED BY A JURY AND SOME BY THE COURT 20. ESTIMATED TIME OF TRIAL5 . -daYs____________________ ___ 21. PLAINTIFF OFFERS TO TAKEIN FULL SETTLEMENT OF HIS CASE. NL 000039274 22. DEFENDANT OFFERS____L JliBS----------------------------------------- 23. IS THIS CASE ONE FOR MEDIATION WITHIN MEANING OF WAYNE CIRCUIT COURT RULE 1*21?DO_ 24. a t t a c h A LIST OF ALL WITNESSES YOU PLAN TO CALL AT THE TRIAL. List of witnesses will be complied and furnished within 30 days 25. HAVE YOU READ PARAGRAPHS A-H (Pink Sheet) ATTACHED TO THIS FORM? Yes if. 3" t -j E*1' ' j r 'Y otre 'r * n t .w o v j s l if f n s er v ed a n d h a r n o t t il e d a '' a n s w e r , rrr'-L 'i t it . crsrs'T" rv c Ft rfy i-j u k f j u c c ii1" i. TOT /TH/riL AT THE f'.T ITJ'L CO. -EPL'l'.-R. .F !' / TIT D'H> L J.rf't'i - j ;-.AS n o LEE? n>v ej j . Tpr ,nr3cv :k *l ' i t Di:r:r:EU t \ . z rwrr- rr.-.uiiLE' Tin pr o 'l io n s cr"it s j :-mo n t h p u ip imc o *ic'j BUCHANAN, OGNE AND JINKS P.C. BY: SIGNATURE OF TRIAL ATTORNEY G. Cameron Buchanan P11340 NOTE: YOU MUST SEND A COPY OF THIS FORM COMPLETELY FILLED OUT TO THE OPPOSITE PARTY OR PARTIES OF THE PRE-TRIAL NOTICE NO LATER THAN 10 DAYS AFTER RECEIPT. DISCOVERY MUST BE COMPLETED BEFORE THE PRE-TRIAL CONFERENCE. PLEASE NOTIFY THE ASSIGNMENT CLERK IMMEDIATELY OF ANY ATTORNEYS OF RECORD WHOSE NAMES DO NOT APPEAR ON THIS NOTICE. i. NL 000039275 "T> > STATE OF MICHIGAN !; [N THE CIRCUIT COURT FOR THE COUNTY Or WAYNE BARRON;and KW0PPOW .ATTORNEY FOR PLAINTIFF fcUWVi;, MILLER;, LEHMAN, SEWARD & COOPER, P.C. ! and JlNRS, P.C. ATTORNEY FOR DEFENDANT 1 Gladys Beasley, et aI City of Detroit and N. L. Industries, Inc. . PLAINTIFF DEFENDANT ACTION NO. 74 -002-312 NC PRAI-TIPF NO NOTICE TO ATTORNEYS: NO LATER THAN 10 DAYS AFTER RECEIPT OF THE PRE-TRIAL NOTICE, COUNSEL MUST SERVE A COPY OF THIS FORM COMPLETELY FILLED OUT, ON ALL ATTORNEYS OF RECORD. THIS ACTION HAS BEEN SET FOR A PRE-TRIAL HEARING BEFORE THE HONORABLE JUDGE WILLIAM CAHALAN___________ nN April 26, 1977 AT 2:15 P.M. - ATTORNEYS MUST PRESENT THIS FORM. COMPLETELY FILLED OUT TO THE CLERK OF THE PRE-TRIAL JUDGE ON OR BEFORE THE DATE OF HEARING AND THEY MUST BE PREPARED TO . COMPLY WITH ALL OF THE PROVISIONS OF MICHIGAN COURT RULE 301. HILTON LUCQW__WILL BETHE ATTORNEY PRESENTING THIS STATEMENT AND ATTENDING THE CONFERENCE AND WHO WILL REPRESENT________________ 1 2 THE CITY OF DETROIT_______________________________________ 1. FACTUAL STATEMENT OF PLAINTIFF'S CLAIMS OR DEFENDANT'S CLAIMS, INCLUDING COUNTER CLAIMS, CROSS CLAIMS AND AFFIRMATIVE DEFENSES, (If space-on this; form is insufficient, counsel may prepare additional sheets and attach to this form,) The statement of your claim should be stated in language which the trial court niay utilize to succinctly relate to the jury your claim Or theory of your case. The defendant, CITY OPiDETROIT, denies that it was guilty of any actionable negligence whatsoever and further: denies that it was guilty of breaching any implied warranties; further, although this.defendant vehemently denies the allegation's.-of the plaintiff, in the event thdt same; are;: found to be true, then the plaintiffs herein are guilty of negligence of an equal;, degree which was a proximate cause of the alleged injuries and. damages. WHEREFORE, this defendant demands a judgment of no cause for action. THIS DEFENDANT ALSO PLEADS THE STATUTE OF LIMITATIONS. 2. WHAT, BRIEFLY, ARE THE FACTUAL AND LEGAL ISSUES TO BE LITIGATED? LIABILITY AND DAMAGES NL 000039276 " 1 j'*& 3. fF PLEA^fife A'RtJ i|Sf WILL YOU REQUEST1'At PRP-fRIAL0 At fills TIME, WHa i FORMAL AMENDMENTS 4, WHY IS SUCH AMENDMENT n e c e s s a r y ? 5. WHY WAS IT NOT SOUGHT PRIOR TO PRE-TRIAL? INJURIES AND DAMAGES: 6. . GIVE NAMES AND AGES OF INJURED PERSONS. AND IN DEATH CASES, NAMES, RELATIONSHIP AND AGES OF PERSONS ALLEGING PECUNIARY LOSS. 7. LIST ALL INJURIES AND STATE WHETHER PERMANENT. 7a. IF PERMANENT, WHO WILL TESTIFY TO THIS? 8., LENGTH OF TIME INCAPACITATED, TIME IN HOSPITAL AND AT HOME. 9. ITEMIZE AND TOTAL: a. Hospital Bills h. Doctor Bills and c. Any other items or* expenses incurred or loss suffered. i. 10. IF WAGES ARE LOST, GIVE PLACE AND TYPE OF'EMPLOYMENT, DATES LOST, WAGES EARNED AT TIME OF ACCIDENT AND TOTAL AMOUNT OF WAGES LOST. ML 000039277 II IN DEATH CASTS MIOU'tV OT PICUNIARY TOSS AfjiD TfM'AL AMOUNT EACH CT,A!!V!^HT'Vr ?t4TS^iIpft!:!!'fe^l!MSL,,''.(|i:f spate:, on this form Is insufficient, counsel may prepare additional sheets andattach to this form.) 12. HAVE YOU FURNISHED THE OPPOSITE PARTY WITH YOUR DOCTOR'S DIAGNOSIS AND PROGNOSIS? 131 IF NOT, PLEASE EXPLAIN WHY. 14. IF DIAGNOSIS AND PROGNOSIS WILL NOT BE FURNISHED BY PRE-TRIAL CONFERENCE PLEASE EXPLAIN WHY. ADMISSIONS AND WAIVERS: OWNERSHIP AND OPERATION: ORDINANCES PLEADED: REASONABLENESS AND CAUSA. CONNECTION OF DOCTOR & HOSPITAL BILLS AND OTHER ITEMS OF DAMAGE, ETC. 15. ORDINANCES PLEADED: 16. (A) WHAT ADMISSIONS OF FACT ARE YOU PREPARED TO MAKE? (B) WHAT ADMISSIONS OF FACT DO YOU DEMAND FROM OPPOSITE PARTY? EXHIBITS: 17. LIST AND BRING WITH YOU ALL EXHIBITS AND ANY OTHER EVIDENTIARY INFORMATION RELATING TO CASE. ,. MEDICAL EXAMINATION: IS. IS A FURTHER MEDICAL EXAMINATION NECESSARY?--(If so, steps should be taken to complete examination before the Pre-Trial Conference.) THIS DEFENDANT RESERVES THE RIGHT TO 19. JURY OR NON-JURY JURY A HEDICAL EXAMINATION. . IF JURY, DEPOSIT OF THE JURY FEE MUST BE MADE BY THE CLOSE OF THE; PRE-TRIAL CONFERENCE OR JURY. IS WAIVED, IF. JURY, CONSIDER SEPARATION OF ISSUES AND THE ORDER OF TRIAL WHEN SOME ISSUES ARE TO BE TRIED BY A JURY AND SOiTIE BY THE COURT' on FSTiMATF.n TIME OF TRIAL 5 days_____ _______ 21. PLAINTIFF OFFERS TO TAKE CASE. IN FULL SETTLEMENT QFTHS NL 000039278 -n;-i i-mu m o f t e r . 23 IS THIS CASf dNl I 1 M^blA HOSJ WITHIN Mi AN INC OF WAYNE CIRCUIT COURT RULE 24. ATTACH A. UST OF ALL: WITNESSES YOU PLAN TO CALL AT THE TRIAL. 25. HAVE YOU READ PARAGRAPHS ATI (Pink Sheet) ATTACHED TO THIS FORM? VES GARAN, LUCOM, MILLER, LEHMAN, SEWARD & COOPER, P.C. SIGNATURE OF TRIAL ATTORNEY Milton Lucow Attorneys for Defendant, CITY OF DETROIT, ONLY 561 East Jefferson Avenue Detroit, Michigan, 48226 962-5180 NOTE: YOU MUST SEND A COPY OF THIS FORM COMPLETELY FILLED OUT TO THE OPPOSITE PARTY OR PARTIES OF THE PRE-TRIAL NOTICE NO LATER THAN 10 DAYS AFTER RECEIPT. DISCOVERY MUST BE COMPLETED BEFORE THE PRE-TRIAL CONFERENCE. PLEASE NOTIFY THE ASSIGNMENT CLERK IMMEDIATELY OF ANY ATTORNEYS OF RECORD WHOSE NAMES DO NOT APPEAR ON THIS NOTICE. 864 AT THE TIME OF TRIAL, THIS DEFENDANT MAY CALL THE FOLLOWING WITNESSES: 1. Theodore Spencer 2. Verne Hunt 3. Lee D. Scott 4. Michigan Painting Company 5. AS B Painting Company 6. Sam Gibbs 7. jWa'yhe Copnty Pollution Control Center 8. State of Michigan, Department of Health 9. Detroit Board Of Education Records TO. Dr. Neal Levi IT. Roland Evans 12. Free Clinic Records 13. Comprehensive Health Services 14. Plaintiffs' treating physicians, past and present 15. Plaintiffs1 medical and hospital records, past and present. 16. This defendant reserves the right to call any and all additional witnesses made necessary to rebut the proofs of the plaintiffs. NL 000039279 "rT- : ATTENTION! DUE TO THE SIZE OF THE NEW PRE-TRIAL NOTICE AND STATEMENT FORM, WE WILL NO LONGER MAIL BLANK FORMS WITH THE NOTICE. jfRNEYS ARE NOW REQUIRED TO PICK UP BLANK FORMS THE CIRCUIT COURT ASSIGNMENT CLERK'S OFFICE, *?[.; 'Miom Xlexarm,... 3acSu...a,. & 3,:avit IMPORTANT RecP.!VE0-",N 1 M976 PLEASE NOTE NEW RULES PERTAINING TO PRE-TRIAL AND TRIAL t - A. The fact that trial counsel is elsewhere engaged or unable to attend will not be grounds for a continu ance of the pre-trial or trial (G.C.R. 114.4). It is imperative, therefore, that backup counsel be available to substitute for regular trial counsel, in the event-of a conflict. B. No Discovery proceedings will be permitted after the Pre-Trial conference, except that, a physical examin ation before trial may be ordered in the pre-trial conference summary statement. (G.C.R. 301>7).y. C. Pre-Trial may not be waived. (G.C.R. 301.8). D. Within 10 days after receipt of notice of pre-trial conference, counsel shall exchange lists of all wit nesses to be called at trial (G.C.R. 301.10) No witnesses may be called at trial unless listed, ex cept by leave granted upon a showing of good cause. E, No cause: will be adjpurned because of inability of an expert witness to: be present (G.C.R. 302.7). Therefore, all expert witnesses should be deposed prior to trial--and within the rules provided--to insure; 'tjhe availability of expert testimony at the trial. Interrogatories addressed to the existence of, the addfess of, or . identity of witnesses are deemed continuing interrogatories (G.C.R. 309.2). In brief, once a party has been asked to disclose his witnesses, he must disclose all known witnesses and thereafter disclose any new witness tc the opposite, party as soon as that witness is known. G. After the Pre-Trial conference counsel for a party may withdraw only with Court approval--and not at all within the 30 day period preceding trial. (G.C.R. 532). H. Pre-Trials may be adjourned only by the Judge--and then only for qood cause shown. (Local Court Rule 8.4). ; $..v NL 000039280 gam OF HSCiUCAU ifj t :h : c ir c u it coum f o r t :if c o u n t ? o f mruz GLADYS BDASLV.Y CT Ah Plaintiffs, -vs- Tilt, Cl'ii' OF avST'-on, a Municipal Corp. anti :l .# ICDUFTRIJS, I.-iC. , a Hew!Jersey Corporation, jointly and ieyefcally. Ho: 74 002312 ISO Judge Joseph G. Rashid P 1923S Defendants. s u bs t it u t io n o f at t q r k ey s TO THE CLERK OF SAID COURT: Please enter our appearance as Attorneys for the Defend ant, ?3 L IKDUSTTUD.d, INC., a it.ew Jersey Corp., in the place and stead of Aloxnn `.or, Uuchanan a Joavitt. liUCilAH/W*, QJNi- AND Jl.siiS- P.C, April 23, l`J7G BY: G. Cancron Buchanan P11340 Attorney for C L Industries, Inc. Suite 1707. 7'.T Jest Dig Beaver Road Troy, Michigan, 4306:3v... 3C2-3707 TO: DARPOfJ KIU XtOP'-oa .. iAv Atfcprnuya for t 'aintiffsV Suite 32'5, Jjhl tost Oiv .lon-ar Trov, *fichi'|>.!, 4-503* Attornoy;for City of Detroit.1010 Citv County 3uilu.ir.ig P-*T''U. -dchic-ao, 43225 PLEAS". unyfc"; that un this day eatora-i our aproaraucc: for the above iu -e u BsCondmi; Jn the place and stead of Alexander, Buchanan 6 Seavitt BUCHANAN, OGIJU A-fD JIKKS, P.C. t3X : C. Car.. ?ron Buchanan 1 Pil33o CO;:::r,;:T TO SUjSTIXWloa We hereby consent to the substitution of Buchanan, Ogn, and Jinks. P.C, for the ocfeiidsr.t, u A Industries, Inc., a Haw Jersey Corpus at4 'n in 'cur place an-: . . ...... ....... y: *..*Tyr /.prll NL 000039281 N 26060.11 I*-*?? STATE OF MICHIGAN 1 IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE I. ;TT. STATE OF MICHIGAN ji\ IN THE CIRCUIT COURT FOR THE COUNTY OF ' i"NE Notice of no progress Nr.oQa2ia.-cx- Attorney for N.L. TT-*.ei eTL \} Cn4 oj t o >L This case has been assigned to Judge Q,'oiipJ jvA Please take notice that the above entitled cause shall be dismissed on the above dismissal date by order of the judge to whom the case Is assigned unless by such time: (A) In no contest actions default with praecipe Is filed and a motion for Judgment Is filed, or (B) The action Is brought to Issue and a trlai praecipe Is filed, or (G) The Judge extends the time on a showing of good cause. Any such extension shall be for a fixed period of time. NOTICE: tf any of the steps listed In Rule 17.3 have been taken prior to the lime of the calling f said "NO Progress Calendar", the -clerk Of the Judge shall be notified thereof, in the absence ,f euch notification. an| Order dismissing the action tor "No Progress" shall be entered by the ssigned Judge without regard forarty progress In fact made. Gr- C Arreftoi^ Yivtint cs * JAMES R. KILLEEN WAYNE. COUNTY CLERK '~^-To |T . tT'lHifeAN HS32(o - -* >> v * < 4'- TIT,.... ' -. ' .T- 'i : !j'- N 26060.12 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVE!! BEASLEY, BRIAN BEASLEY, DERRICK EEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, -VS- THE CITY OF DETROIT, aMunicipal Corporation arid N.L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. ... ' ' ' _____________________ / ROBERT H. GOLDEN (P14108) Of Counsel Attorney for Plaintiffs ' ALVIN R. DAVIDSON (PI2567) Attorney for Defendant} No. 74-002312 NO ' ANSWER NOW COMES the City of Detroit, a municipal corporation, by and through its attorneys, Robert Reese, Corporation Counsel, Thomas J. O'Dowd and Alvin R. Davidson, Assistants Corporation Counsel, and answers the complaint of the plaintiffs as follows: GENERAL JURISDICTIONAL AVERMENTS 1. Paragraph 1 is affirmed. 2. Paragraph 2 is affirmed. 3. Paragraph 3 is neither affirmed nor denied by the defendant herein for lack of proofs on which to form an opinion. 4. Paragraph 4 is affirmed. ' COUNT 1 1. Paragraph 1 is affirmed to the extent that plaintiffs occupied same, but defendants1 records show initial occupancy on November 6, 1969. Defendant denies any express or implied warranties inure to the monthly lease. 2 HI 000039284 N 26060.13 2. Paragraph 2 is affirmed. 3. Paragraph 3 is affirmed. 4U Paragraph 4 is affirmed. 5. Paragraph 5 is affirmed tc the extent that the business of the co-defendant causes an increase in the amount of lead particles in the air surrounding said co-defendant's business, but the remaining allegations must be denied for lack of knowledge thereof, leaving plaintiffs to their proofs. 6. Paragraph 6 is neither affirmed; nor denied, leaving plaintiffs to their proofs. 7. Paragraph 7 is neither affirmed nor denied, leaving plaintiffs to their proofs. 8. Paragraph 8 is neither affirmed nor denied, leaving plaintiffs to their proofs. 9. Paragraph 9 is neither affirmed nor denied, leaving plaintiffs to their proofs. 10. Paragraph 10 is neither affirmed nor denied, leaving plaintiffs to their proofs. 11. Paragraph 11 is denied to the extent the defendant herein is alleged to have contributed to the pollution of the air and atmosphere, but is neither affirmed nor denied relative to the balance of the paragraph, leaving plaintiffs to their proofs. COUNT II 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied specifically, as defendant was neither negligent nor in breach of any warranty, express or implied. Defendant answers the sub sections of this paragraph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is affirmed to the extent that the air throughout the City of Detroit is infiltrated by lead and other chemicals from automobile exhausts. Any other meaning implied by the plaintiffs is left to their proofs. -3- ML 000039285 C. Subsection C is neither- affirmed nor denied, leaving, plaintiffs to their proofs. COUNT m 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied. Defendant answers the subsections of this para graph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is neither affirmed nor denied, plaintiffs being left to their proofs. .C. Subsection C is neither affirmed nor denied, plaintiffs being left to their proofs. ; D. Subsection D is denied. Defendant City of Detroit lacked the knowledge, capability and jurisdiction to effect the air in and around plaintiffs' dwelling. COUNT IV 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical damage. COUNT V 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. -4- NL 000039286 COUNT VI 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symtomotology set out in para graph 3,, but denies the allegations of permanent physiological or physical harm. COUNT VII 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VIII 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. AFFIRMATIVE DEFENSES The defendant herein, the City of Detroit, sets forth the following affirmative defenses to the plaintiffs' Complaint: - 5- ML 000039287 7 1. The elevated blood-lead levels of the plaintiffs' in this cause are variables which constitute ambiguous measurements, and are not evidence, per se, of lead ppisonin'g, but of a condition which lends itself to treatment, by chelation therapy. 2. That the elevated blood-lead levels of the plaintiffs in this cause were not proximately caused by any negligent actions of the City of Detroit, but by the actions of National Lead Industries, Inc. v 3. That the numerous paintings of the structure? known as public housing by the City of Detroit was an attempt to make and maintain those structures in a - manner consistent with what is generally known as decent-. < 4. That the state of the technology of.paint production open to both the City of Detroit and consumers generally was so primitive until the 1960's that most of the paint sold and purchased exceeded the generally recognized 'safe' limits of lead compounds insisted upon today by Federal regulations. 5. That to hold the City of Detroit liable for the use of such paints when-the dangers in those paints of lead base were virtually unknown would be analo gous to strict liability. .> 6. That the condition of children eating paint chips or chewing paint from some painted surface in public housing was not foreseeable and was not consistent with'the purposes for which the paint was used by the defendant. City of Detroit. 7. That prior to the plaintiffs moving into the building at 4803 E. Nevada, that unit was painted throughout with non-lead or low-lead based paint. ' 8. That plaintiff, Gladys Beasley, never complained to the building manager about the condition of any painted surface in her home, but the City of Detroit, through an enforcement program initiated by the Department of Health, scraped and removed questionable chipping paint from the interior and exterior of plaintiffs' dwelling beginning in February, 1973. 9. That the plaintiff, Gladys Beasley, knows and knew of her children's, plaintiffs, propensity to put non-food items into their mouths by virtue of her close supervision of said children, but in not stopping said con duct, was negligent by her inaction. The children, in ingesting non-food items were contributing factors to their own illnesses, and thus, contri- butorily negligent. -6- ML 000039288 10, That; the detection and enforcement of clean air laws is the duty of the Wayne County Pollution Control Center by statute. Act 306 of P.A. of 1,^27 (MCt4 ,327.,?05 apd 20^); and that those antipollution laws may be enforced by any citizen of the State of Michigan, Act 127 of P.A. of 1970 (MCLA 691.1202). WHEREFORE, it is prayed that this action be dismissed against the defendant. City of Detroit, and that this Honorable Court grant such other relief as it deems necessary and equitable. DATED: March 6, 1974 Alvin R. Davidson Assistant Corporation Counsel City of Detroit 1010 City-County Building Detroit, Michigan 48226 (313)-224-6943; 224-3423 -7- ML 000039289 t " ' ! STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, "VS" No: 74 002312 NO THE CITY OF DETROIT, a Municipal Corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. / ANSWER TO THE COMPLAINT ON BEHALF OF N. L. INDUSTRIES, INC., A NEW JERSEY CORPORATION. :____ Now comes N. L. INDUSTRIES, INC., a New Jersey Corporation by ALEXANDER, BUCHANAN & SEAVITT, its Attorneys and in answer to plaintiffs* Complaint says: GENERAL JURISDICTIONAL AVERMENTS i- ;; 1. Defendant is without suffici r-nt ir> formation to form an answer or belief to the allocations- of said paragraph contained. 2. Defendant admits the s.-m-s on information and belief. 3. Admitted. 4. Defendant is without sufficient information to form an answer or belief and in further answer avers that it does not "know if plaintiffs have a cause of action COUNT I. 1. Defend: nt is without sufficient information to form an answer or belief. ?.. Defendant is without r-vf. ficivnt in formation to form an answer or belief. 1- NL 000039290 N 26060.14 3. Defendant admits that it operates its Master Metal Division at 4700 E. Nevada, Detroit, Michigan, but is without sufficient information to admit or deny the remaining ipontfaiite#.* 4. Defendant admits that, at the Nevada location its conducts a smelter for the recovery of lead and/or the smelting, burning process of materials containing lead but neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to answer because of the broad general statements incorporated in the allegations. 5. Defendant denies the .allegations in said paragraph contained, avers that said allegations are not, in fact, true, ' and that tests made periodically will disclose the verification of defendant's answer. In further answer Defendant avers that there are in the area where the Plaintiffs allegedly reside other secondarysmelters of scrap lead being Sithin Midland, Inc. N. R. Lavin & Sons, Inc. which may be the source or the bases of Plaintiffs' complaints. 6. Defendant is without sufficient information to form an answer or belief to the allegations with reference to the residence of the Plaintiffs but denies the remaining allegations in said paragraph contained and avers that said allegations are not, in fact, true. 7. Defendant is without sufficient information to form an answer or belief to the allegations with reference to V, . residence of the Plaintiffs but denies the remaining allegations in said paragraph contained and avers that said allegations are not, in fact, true. 8. Defendant denies the allegations in said paragraph contained as applicable to the claims of the Plaintiffs with reference to lead, avers that said allegations are not, in. fact, true? admits that complaints have been made and corrected with reference to sulphur content of emissions. -2- NL 000039291 9. Defendant is without sufficient knowledge or information to form an answer or belief to the allegations pertaining to the physical conditions of the Plaintiff, Gladys Beasley but denies that any condition such as alleged was the result of the manufacturing process of this defendant, and avers that tests made by Health authorities and Defendant will substantiate this allegation. 10. Defendant is without knowledge or information sufficient to form an answer or belief to the allegations in said paragraph contained and leaves the Plaintiffs to their proofs. T 11. Defendant is without knowledge or information sufficient to form an answer or belief to the allegations in said paragraph contained and leaves the Plaintiffs to their proots. AFFIRMATIVE DEFENSES TO: GLAUS'S BEASLEF Plaintiff PETER DQZORC and ROBERT H GOLDEN Attorneys for Plaintiffs PLEASE T^UKE NOTICE that the Defendant will rely upon and prove that the alleged cause of action of the Plaintiffs or any injuries or damages occurring after November 1, 1973 are barred by the Statute of Limitations and Defendant at the appropriate time and place will move to dismiss or strike from the Complaint allegations pertaining to all damages within the said period pursuant to the Michigan General Court Rules. WHEREFORE, Defendant asks Judgment Of No Cause of Action together with costs so wrongfully incurred. COUNT II 1. Defendant adopts and incorporates by reference -3- NL 000039292 I answers to the allegations Of Count I and the Affirmative Defenses incorporated therein. 2. Defendant is without sufficient information to form an answer or belief to the allegations in said paragraph contained and in further answer avers that the allegations are not applicable to this Defendant. '/'V ' COUNT III .. / : 1. Defendant adopts and incorporates by reference the answers to Counts X and XI of Plaintiffs* Complaint. 2. Defendant is without sufficient information to form an answer or belief to the allegations of said paragraph , / contained and in further answer avers that the allegations are not applicable to this Defendant. COUNT,1V, , 1. Defendant adopts and incorporates by reference in full, answers to Counts X, II and XXX of Plaintiffs' Complaint. 2. Defendant denies air pollution by lead from its activity and avers that the allegations in said paragraph have no application to this Defendant. 3. Defendant denies that it was guilty of any acts of negligence or breach of duties for the reasons hereinbefore set forth hut neither admits nor denies the remaining allegations for want of sufficient information to form an answer. COUNT V. 1. Defendant adopts and incorporates by reference i the answers to Counts I, II, III and IV in their entirety. -4- NL 000039293 " n ; 2. Defendant denies that the air in the community in which the Plaintiff allegedly resides was polluted or infiltrated by lead from this Defendant's business activities, avers that the tests of the Health authorities and this Defendant substantiate the bases of this denial but neither admits nor denies the remaining allegations in said paragraph ^contained for want of sufficient information to form an answer or belief and are not applicable. 3. Defendant is without sufficient information to form an answer or belief to the allegations of the physical condition of the Plaintiff or other allegations pertaining.to . injuries and denies that: any condition of the Plaintiff : resulted from negligence or wilful actions, or any breach of duty of this Defendant for the reasons hereinbefore set forth. COUNT VI 1. Defendant adopts and incorporates by reference all of the answers to Counts I, IX, III, IV, and V in their entirety. 2. Defendant denies the allegations with reference to the air being polluted by lead from Defendant's smelter and business activity? neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to form an answer or belief except as to those allegations which are not applicable to this Defendant. 3. Defendant has no information sufficient in nature* to form an answer or belief as to the allegations.pertaining to injuries but denies that said injuries resulted from any negligence or wilful actions or failures.to act of this Defendant or breach of duty of this Defendant for the reasons hereinbefore set forth. COUNT VII 1. Defendant adopts and incorporates by reference -5- NL 000039294 /- the answers to Counts I through VI as fully set forth therein. 2. Defendant denies the allegations with reference.to the air being polluted by lead from Defendant's smelter and business activity; neither admits nor.denies the remaining aPLlega'tigns in said paragraph contained for want of sufficient Information to form an answer or belief except as to those allegations which are not applicable to this Defendant. 3. Defendant has no information sufficient in nature to form an answer or belief to the allegations pertaining to injuries! but denies that said injuries resulted from any . 'Vnegligence or wilful actions or failure to act of this Defend-, ant Of breach of duty of this Defendant for the Reasons - hereinbefore set forth, COOHT VIII j 1. Defendant adopts and incorporates by reference the answer to Counts I through VII as fully set forth therein. 2. Defendant denies the allegations with reference to 1 ! the air being polluted by lead from Defendant's smelter and business activity; neither admits nor denies the remaining I I \ allegations in said paragraph contained for want of sufficient ; information to form an answer or belief except as to those allegations which are not applicable to this Defendant. 1 i 1 i 3. Defendant has no information sufficient in nature jj .i to form an answer or belief as to the allegations pertaining '! to injuries but demies that said injuries resulted from any ,i negligence or wilful actions or failures to act of this Defendant or breach of duty of this Defendant for the reasons !| hereinbefore set forth. j ) -I WHEREFORE, Defendant denying Plaintiffs claim of j setting forth allegations with reference to exemplary damages ...rj- ! ! i I NL 000039295 respectfully represents to the Court that it is without negligence or fault in this cause and asks Judgment of No Cause of Action, together with costs so wrongfully incurred in each of the claims of the respective Plaintiffs. May 20, 1974 ALEXANDER, BUCHANAN & SEAVITT BY:______________________________________________ G. Chmeron Buchanan rll340 Attorney for N. I.. Industries, 2217 First National Building Detroit, Michigan, 48226 965-2310 Inc, -7NL 0039296 3'2-0 STATS OF MICHIGAN CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS' REriStrEY., fcsd-.iw % rvrt, iri'epd of Steven. Beasley, Brian Beaalev, et aT. ' ...... " c...! 74- .n o CITY 0-F DETROIT/'a I^Ipiuctpal. cprp,, &. N. L. INDUSTRIES, INC., a New Jersey cofp.v'j/iS' ''11" ^ SUMMONS IN THE NAME Of THE FEOFIE Of THE STATE OF MICHIGAN. T. Ik. <*... n e miM(.i. -CITYJ3FDE TRQITCity, County. Building,.Detroit, N. L. INDUSTRIES, INC.:c/0 Corporation Co., Dime Eailding* Detroit You Arm Hereby Notified That a civil taction boo boon commenced ogoinet you, end fhot if you desire to defend tho igmt; yeueire roquirod to tgrtswor or folio such ostioft os o*v bo pfflnitft^ by low with to iho complaint hr. with served upon you, within 20 doy* after (service oi thi* ounnmenft end complaint upon you, exclusive of ho day of service. 4i you foil to ^ft-few ui^amonf by default will bo token ogosnsf you for tho relief demanded in tho complaint. ? n si 9 3 fT/ita! ' F. ^^ _________ JOSEPH . SULLIVAN, Cl.rk cl the Circuit Court GO LDEN- Of Counsel 7220 W. 12 Mi., (Busin*.* Qildr*.,) 557-7210 IHhon. No. j ! Sfld., Mich. STATS OS WfOWGAM COUNTY Of WAVNf Seal of tho Court . day of - (Deputy Sheri#) ______,, IT____ -----1----------------------------------------'----------------------------t in the County of. I served o Summers on# o copy of tho Complaint mod................. in thi< action upon---------r------ - ...... - ----- -- . hereby certify return (plow of service) known ts be {one of) the defeftdont(s) name# therein, by then end there delivering to (eoeft of) defendontfr) *otd summons on# eopy of obeve name# documents. i. 1 Dated -- n . 11. i. M . ,1> . i - i 1 ------------------------- --------------------- -------------------1---------; awgpiwt * STATS Of MICHIGAN \ iss COUNTY Of WAYNf } Coputy Short# (Deponent) being duly tween, deposes end rays that he is a person oi suitable oge and discretion to serve process, and that on the____________ day of . . ot - _ .... S -------------- ... ---------------------- -------------------------------------- in the County of - - - (place of service) , .. .. -- 1?_________ ------ he served o Summons and a copy of the Comploint and ----------- --... _ . . ---------------------------- -----------... ______________ ________________ >n this action upon ---------------------------------------------------------------------------------- ...--------- --..... (Nome of Defendants) -- -- .. ,--,--_----. -- -- known Jo be jane of) the defendant's/ named therein. by then and there delivering to (*<h of) lO/d d*f*n<tnt{ s) said summons ond espy of above named documents. Subscribed and sworn to before me this - day of -- --------- - .. ------- ... -17--------- .-- Deponent Notary Public. Wayne County. Miehigon My Commission expires -- ........................ - -- ML 000039297 N 26060.15 STATE OF MICHIGAN IN: THE CIRCUIT COURT FOR TRE COUNTY OF WAYNE GiLADYS; BtsASL'EY'' .Jhipvi$h?Uy and iisi Ne^ft'E^eiid .bt$TFi# I'; $il|3lBT:. WENDELL BEASLEY and MONIQUE BEASLEY, all minors, Plaintiffs, -vs - -...........- , -,------------ ' - : --w.-J . _____ No. .74-^^JJ3 /2--- NO THE CITY OF DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, Jointly and severally. Defendants. / ji a ROBERT H. GOLCEN (P 14108) Of Counsel Attorney for Plaintiffs COMPLAINT Now come the above named plaintiffs by their attorney, PETER DOZORC, ROBERT H. GOLDEN, of counsel and complain of the CITY OF DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC., a New Jersey corporation, jointly and severally and for their cause of action, say: GENERA L JURISDICTION L A VERMENTS 1. That all of your plaintiffs are residents of the City of Detroit, County of VTsyne, State of Michigan. 2. That the defendant. City of Detroit, is a Municipal corporation located within the County of Wayne, State of Michigan. 3. That the defendant, N. L. INDUSTRIES, INC., is a New Jersey i j corporation, admitted and authorised to do business in the State of Michigan and Ij ' jj established within the County of Wayne, State of Michigan. i! 4- That this cause of a i; Jj County of Wayne, State of Michigan . .on accrued to your plaintiffs within the PETES 1X3202*0, 3P.O., a t t o a my a t l a w teooo WEST NINE MILS SCAB - SOUTHVieUO. MICHiQAN <0078 - 353-AflOO NL 000039298 ! N 26060.16 1: ii PAGE 2 COUNT I 1. That on or about November 1, 1970, your plaintiff rented, or otherwise occupied premises known, as 4303 Nevada, located in the City of Detroit, County of Vv .yna, State of Michigan, from the defendant, and owner of said property, the CITY OF DETROIT, Paying a monthly rental, therefore to the said CITY OF DETROIT, which premises by agreement and design were for use by plaintiff and her family as a dwelling place and residence and impliedly warranted by the said defendant as safe for such use, 2. That plaintiff's family on November i, 1970 and thereafter consisted of her children, the minor plaint Jfa herein, which minor plaintiffs born and thereafter born resided in the aforesaid premises from November 1, 1970 or their date of birth, to the present time. 3. That the defendant, N. L, INDUSTRIES, INC., a New Jersey :orporation operated a division of its business known as Master Metal Division at 700 E. Nevada, Detroit, Michigan, which location is approximately 400 feet 1rofeth west of the residence and dwelling place of all of your plaintiffs, as heretofore flesscribed. 4. That defendant, N. B. INDUSTRIES, INC., at its location iforesaid, conducts a smelter for the recovery of lead and or the smelting, jurning and processing of ores, materials and goods, which contain lead, including nut not limited to the burning or smelting of battery casings for recovery of their sad content. 5. That the process of burning battery casings and cases and the ther smelting, burning and processing done by defendant, N. E. INDUSTRIES, C., caused, causes and continues to cause the atmosphere, in and around. 4300 . Nevada, to become burdened with an increased and abnormal amount of lead, pacifically let into the air in the neighborhood of defendant's plant, by the plant Operations of the defendants and its business operations, which air envelopes plaintiff's residence. 6. That your plaintiff's have lived in and around and within 400 feet pf defendant's plant for in excess of three years, beeatfaing the air placed there by ji PHTBH DOZOKO, I`.C,, a t t o r n ey a t l a w **COO -WST NINE WIDE ROAO - SOUTHVg!_D. MICHIGAN 4.0075 - 0SS-4OOO ML 000039299 PAGE 3 nature in its pure state free of lead particles or chemicals and foaled by defendant's manufacturing processes so as to contain lead in amounts greatly increased from what amounts if lead could or would be expected to be contained within the air in its natural and unaltered state in the absence of defendant's manufacturing process* andhave been injured thereby as rapre fplly set outhere^ in. 7. That not only has this defendant caused the air in and out of its plant and in and around plaintiff's residence to be fouled and lead burdened, but has continually and repeatedly refused or neglected to so refine its manufacturing process to eliminate the danger to residents in the area and of persons including plaintiff's breathing air containing various chemicals, and metals including lead, and, fully realizing the dangers of thea business enterprise to inhabitants of the area, have continued their smelting and burning and pollution of the atmosphere and breathable air in and around plaintiff's residence. 8. That on several occassional defendant has been cited or complained against, notified or requested to alter, change amend, safeguard oxdiscontinue its operations in order to prevent the pollution of the air around its plant and to prevent pollution of the air plaintiff's breath, which complaints, requests orders, etc. have gone largely ignored and without remedy, further endangering the life of plaintiffs and continuing to foul and contaminate the air breathed, now, in the past, and during the pendancy of this action, by planitiffs and others to their daxga and injury. j 9. That your plaintiff, GLADY'3 BEASLEY, has for several months j indured the pain, suffering, vomiting, diarrhea and general irritability of her hildren, the minor plaintiffs herein, the above symptoms the result of lead oisipaiag, caused by and or contributed to by the pollution of the air in and ijibont their home, as a result of the manufacturing and smelting process of the t .defendant, K. L. INDUSTHIB3, INC. t 10. That your plaintiff, GLADYS 3EASLEY, has been compelled to 'keen medical attention for all of her children, the minor plaintiffs herein, and j PET'ER DOZORO, R.C.. a t t o r n e y a t l a w TBOOO WEST NINE MU.E SOAO SOUTH YIELD. MICHIGAN 48073 - 3S3-4BOO NL 000039300 PAGE 4 has been compelled. Is being compelled ana will be. compelled for the reef of her life, and/or the lives of her children, to pay and incur great sums of money in aaid about the treatment, care, and alleviation of the complaints of her children, ; themto^f.-pteiatiffs: herein. | 11. That your plaintiff has witnessed and endured the suffering of her children and will be called upon in the future to witness their continued pain, suffering, and debilitatioii, lessening of intelligent quotent and in general will: bear witness to the inability of her children to attain a nornial mental and physical ability and life pattern and style, all taken from them by the actions and failures of these defendants in their pollution of the atmosphere and virtual injection of the atmosphere in and about her home with lead and lead derivatives and lead bearing chemicals. COTOT II 1. That your plaintiff, GLADYS BEASLEY, incorporates by reference thereto, all of the allegations heretofore appearing in this Complaint as though fully set out herein. 2. That the defendant, CITY OP DETROIT, has negligently provided the plaintiffs with an unsafe, defective and dangerous building in which i to live, for a payment of rent, and further thafPhe said'defendant, CITY OP DETROIT, knew or should have known of the defective and unsafe condition of the residence provided by it to these plaint;ffs, for example: I A. Tjiat the building and premises and/or surrounding . buildings and/or premises also owned by this defendant had covering them several coats of lead based paint. i B. me air In and around the premises was infiltrated with lead and other chemicals C. That all surfaces, interior and exterior were covered and continued to be covered with lead particles settled and sets'! H out of the air. I i: .And that the existance of lead and in and upon the interior and exterior building. ML 000039301 PAG.: 5 walls* surface and breathable air constituted a Lethal health hazard to plaintiff andj, the minor children pig intiffs, which, danger this defendant failed to. ip any way point out, warp of, or reduce, inhibit, discontinue or abate, the existance of which and which failure and negligent acts were a breach of said defendant's implied 'warranty of'.a sale premises In.which.to. llv-e, respiting in the acute lead poisoning of the minor plaintiffs apdthe paih*anguish, dtsapppintaient and expense of their mother and to plaintiff. COUNT III 1. That all of your plaintiffs incorporate by reference thereto all of the allegations herein, appearing in this complaint as though fully set out herein! 2. That in renting the aforesaid premises, to your plaintiff and her children, the minor plaintiffs herein, the defendant, CITY OF DETROIT, did impliedly -warrant that the premises were safe to be inhabited as a residence and that residing there would not cause, in itself, injury to the plaintiffs, which warranties the defendant CITY OF DETROIT, did breach in that your plaintiff, retying upon the safety of said premises did reside there with her family, all of which children did contract acute lead poisoning as a direct result of their haring resided in said premises, defendant breaching its warranty, for example: A. That the building and premises and/or surrounding buildings and/or premises also owned by this defendant had cowering them several coats of lead based paint. B. That the air -ja and around the premises was infiltrated t with lead and other chemicals. C. That all surfaces, interior and exterior were covered and continued to be covered with lead particles settled and settling out of the air. : D. That the defendant, knew or should have known of the ;i I dangers of lead poisoning attendant in residing as tenants of defendant and yet the said defendant, CITY' OF DETROIT, failed :a any way to clean up the air in and around said PETTBIl XXJZOHO, P.C.. a t t o r n ey a t c a w teeo wssT n in e mil e b o a a . sovrufiei-o, Mic h ig a n **07b 33s -a o o ML 000039302 ,.r RAGE 8 _. premises, or to fill said premises of lead and lead dost. COUNT IV 1. That co-plaintiff, GLADES BEASLEY, as next friend of the minor plaintiff BRIAN BEASLEY, incorporates by reference thereto all of the allegations heretofore appearing in this complaint as though fully set out herein. 2. fhat BRIAN BEASLEY, was born on May 26;, 1938, and,has resided; since November 1, 1970 at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, around, upon and on which air polluted by lead, infiltrated from defendant's smelter and business activity, was deposited, did on November 1, 1970 have a normal life expectantcy pursuant to M. C. L.A. 500.834 of 68.90 years, which life expectantcy and quality of life has been materially altered and impaired as a result of acute lead poisoning, contracted as a result of nj the negligence, actions, and failures to act of the defendants herein, jointly and J severally, as well :as by breach of warranties of Hie defendant, CITY OF DETROIT, 3. That your plaintiff has further suffered extreme distress, indudiig lead ache pain, pain, [ vomiting, stomach cramps, acute blood lead levels, lead deposition in his bones and tissues, irritability, dimenished responsiveness and intelligent quotient and will continue to suffer such symptoms and such poisoning for the rest of his life, being in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of jhity of said defendant. COUNT V 1. That co-plaintiff, GLADYS BEASLEY, as next friend of the pinor plaintiff, DERRICK BEASLEY, incorporates by reference thereto, all of the feUegations heretofore appearing in this complaint as though fully set out herein. 2. That DERRICK BEASLEY, was born July 13, 1965, and has resided since November 1, 1970, at the aforesaid residence owned by the defendant biTY OF DETROIT, and in, around, upon and on which air polluted by lead, pifiltrated from defendant's smelter and business activity, was deposited, did on PETER DOZORC, P.C,, a t t o an c v a t l a w } WEST NINE. MILS ROAD - SOOTHf'IKi-O. MICHIGAN 43070 393-4000 NL 000039303 PAGE 7 HdvdnibSr 1,, 1970, bays a normal life. exp^tantcy pursuant to hi. C. L. A. 5500,33(4 of 34,19 years, which life expectantcy sal quality of life .has been materially altered1 and, 'impaired as a result' of acute lead poisoning, contracted as a result of j- Jthe actionsand failures to act of the defendants herein, Jointly and S'SVSratly, as. Veil as by'breach of 'warranties of the defenderl, ClfY OF DZ-ffiOn'. 3. That your plaintiff has further suffered extreme distress, including head ache, pain, vomiting, stpmach cramps, acute bloodlead levels, r j lead, deposition in bi$ bones and tissues, irritability, diminished responsiveness and intelligent quotient and will continue to suffer such, symptoms and such poison ing for the rest of hip life, being in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendants, f43 COUNT VI 1. That co-plaintiff, GLADYS. BEASLEY, as next friend of the minor plaintiff, WENDELL BEASLEY, incorporates fay reference thereto, all of the allegations heretofore appearing in this complaint as though fully set out herein. 2. That WENDELL BEASLEY, was born September 27, I960, and has resided since November 1, 1970, at the aforesaid residence owned by the defendant, CITY OF DETBfDJT, and in, around, upon and'on-whish. air polluted by 'lead, infiltrated from defendant's smelter and business activity, was deposited, idid on November 1, 1970, have a normal life expectantcgr pursuant to M, C. L. A. j ! 500. 834 of 59. 53 years, which life expectantcy and quality of life has been materially altered and impaired as a result of acute lead poisoning, contracted as a result of the negligence, actions and failures to. act of the defendants herein, ointly and severally, as well as by breach of warranties of the defendant, CITY jOF DETROIT. 3. That your plaintiff has further suffered extrema distress, illneluding head ache, pain, vomit:ng, stomach cramps, acute blood lead levels, ii n lead deposition in his bones and tissues, mritabllity, d.imenished responsiveness end intelligent quot ent and will continue to suffer such symptoms and such iPSmER IXDZQKC. a t t o w n t t AT LAW IflOTOO WEST MIN'S MILE ROAO . SOUTHVI*1.0. MICHIGAN ABOTS SSS-A-BOO NL 000039304 ,,L PAGE 8 poisoning for the rest of his life, being in constant need of rre dical and other care,1 all as a result of the negligent and -wilful actions of the defendants herein, and. " " breaches Of duty of said defendants. COUNT VII j r j ! j 1. That .co.-plalhtaff, QLADYS; BEASLEY, as nextfiriend of the. minor plaintiff. MONIQUE BEASLEY, incorporates by reference thereto, all of the allegations heretofore appearing in this complaint as though fully set put: herein. 2. That MONIQUE BEASLEY, was born February 1, 1971, and has resided since February 1, 1971, at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, upon, around, and on which air polluted by lead, infiltrated from defendant's smelter and business activity, was deposited, fO did on February 1, 1971, have a normal life expectantcy punsuant to M.C.L.A. J 5500. 834 of 88.30 years, which life expectantcy and quality of life has been (materially altered and impaired as a res alt cof acute lead-poisoning, contracted as ia result of the negligence, actions and failures to act of the defendants herein, jointly and severally, as well as by breach of warranties of the defendant, CITY OF. DETROIT. 3. That your plaint ff has further suffered extreme distress, ncluding head, ache, pain, vomiting, stomach cramps, acute blood lead levels, lead deposition in her bones and tissues, irritability, diminished responsiveness r and intelligent quotient and will continue to suffer such symptoms and such j l! : i i- poisoning for the rest of her life, being in constant need of medical and other care,! 1 .' ! 'ail as a result of the negligent and wilful actions of the defendants herein, and i- breaches of duty of said defendants. j I I COUNT Fill | i- 1. That your co-plaintiff, GLADYS BEASLEY, as next friend of the if tp -.nor plaintiff, STEVEN ERAS LEY, incorporates by reference thereto all of the allegations heretofore appearing in this complaint as though fully set out herein. 2. That STEVEN BEASLEY, was bora June 22, 1933, and has i! PETES DOZOHO. P.C., ATTOHNIY AT t_aw >6000 WPST HfHS MILE ROAD - SOUTH^tSVO. NtCHIOAN ASQ7B - 333-4000 NL 000039305 ,L PAGES resided since November 1, 1970, at the aforesaid residence owned by the defendant,, CfTY OF DETROIT, and in, upon, around, and. on which air polluted by lead, infiltrated from defendant's smelter and business activity was deposited, did on November 1, 1970 have a normal life expectantcy pursuant to M. C. L.A. :$3'09;.'8g'4 of' 32, So'years* whiph lifjei.etqoecfentqy has been, materially altered and impaired as a result of acute: lead poisoning, contracted as a result of the negligence, actions and failures of action of the defendants herein, jointly and severally, as well as by breach of warranties of the defendant, CITY OF DETROIT3. That your plaintiff has further suffered extreme distress, including head ache, pain, vomiting, stomach cramps, acute blood lead levels, lead deposition in bis bones and tissues, irritability, diminished responsiveness and intelligent quotient and will continue to suffer such symptoms and such, poisoning for the rest of his life, being in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendants* WHEREFORE ptaintiff, GLADYS BEASLY2, prays judgment for plaintiff and against defendants, jointly and severally, in the sum of Five, Million and No/100 (33, 000, 000,00) Dollars, as compensatory and exemplary damages, oi in such other sums as a court or jury upon a trial of thisicause, Shall deem just, fair and equitable, plus coats, interest and attorneys fees, i | WHEREFORE your plaintiff, GLADYS BEASLEY, as next friend of j #tbe minor ola Litiffs herein, prays jadgm er.t for said minor olaintiffs in the sum of ; SI ! 3Five Million and No/100 133,000,000.00) Dollars, as compensatory and exemplary! il " | i demaves, each, or in such other sum as a court or jury shall deem just, fair and ; I '- I :?equitable, plus costa, interest and attorneys fees, .'BERT H. G r-LDEN Of Counsel Attorney for Plaintiffs 17220 v7. 12 M-le Road, Suite 103 Southfield, Id .chigan 4307p 577-7210 PETER DOZOJRC, P.C., a t t o r n ey a t l a w 16000 WXST NINE MH.E BOAS. SOUTHFi.ELO. MICHIGAN 4-3075.- 35 3-4600 c, \ { 1 > I NL 000039306 PAGE 10 DEMAND FOR THLAL BY JURY Now come the above entitled plaintiffs, by their Of Counsel .Attorney, ROBERT H. GOLDEN, and hereby demand a trial by jury of all matters and things contained here in. ROBERT H. GOLDEN Of Counsel Attorney for Plaintiffs 17220 West 12 Mile Road, Suite 103 Southfield, Michigan 43075 557-7210 t PETEK ZDOZOKO. P.O., a t t o ams y a t l a w feooo wear mux mil e ij o ad - 30Ut h l .o . Mic h ig a n a b o t s sas-aeoo I ML 000039307 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, VS No. 74 00Z312 NO THE CITY OF DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC. , a New Jersey Corporation, jointly and severally. Defendants. / ROBERT H. GOLDEN (P 14108) Of Counsel attorney for Plaintiffs G. CAMERON BUCHANAN (P 11340) Attorney for Defendant, N. L. Industries, Inc. a l v in R. d a v id s o n , <p 12567) Attorney for Defendant, City of Detroit AMENDED ANSWER OF DEFENDANT CITY OF DETROIT Kermit Bailer Corporation Counsel Thomas J. O'Dowd Alvin R. Davidson Assistants Corporation Counsel Attorneys for Defendant City of. Detroit 1010 City-County Building Detroit, Michigan 48226 (313) 224-6943 NL 000039231 N 26060.01 STATE OF MICHIGAN IH THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK LEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, v. JUDGE WILLIAM LEO CAHALAH, P-11509 Civil Action No. 74-002-3X2 NO THE CITY OF DETROIT, a Municipal corporation, and H. L. INDUSTRIES, INC., a Haw Jersey Corporation, jointly and severally. Defendants. BARRAN and knoppow By* Ronald M. Barron, P-10493 Attorneys for Plaintiff . GARAH, LUCOW, MILLET, LETIWI, et a.I 3y MiltonLucov, F-16d44 Attorneys for Defendant, CITY OF DETROIT MORBACK, CHEATHAM i HacARTHUR Byi Charles C. Cheatham, P-11013 Attorneys for Defendant, *T. L. I`>T/"0TR ANSWER TO I'LA I NT I "F ' 3 A' 'ENDED COMPLAINT BY DUFLNDAUT. CITY OF DETROIT Now comes the defendant, criY OF DETROIT, a T'uniclcal corporation, ONLY, by and through it* attorneys, GACAN, l.yTOW, MILTER, LEHMAN,- SEWARD COOPER, P.C., and in to plaintiff? Amended Complaint, admits, denies and alleges aa ftllevs* GENERAL JURISDICTIONAL AVERMENTS 1. This defendant incorporates herein by reference and makes a part hereof its answer to plaintiff's original complaint pertaining to jurisdictional averments. COUNT I 1. This dofendant incorporates by roforence the complete original answer to the originsl r-^ioinint and supplements the 3ams with specific Nl 000039232 reference to paragraphi: 3ot forth in the Amendad Complaint. count ii 1. This defondant incor'ioratca heroin by reforenca and makes a part hereof its original onnwor. COUHT IXX 1. This defendant incorporated herein by reference and makes a part heroof its answer to Count IIX of plaintiff's original complaint. COUHT XV 1. This defendant incorporates heroin by reference and makes k part hereof its answer to Count IV of plaintiff's original complaint. COUNT V 1. This defendant incorporates herein by reference and makes pert hereof ito answer to Count V ol plaintiff's original complaint. CPU iff VI 1. Tnis- <teCendant Ar.cor;-oraton herein )>y reference anti makes a part hereof its answer to Count VT. of olaintlff'n original cor plaint. 2. Further answering the now matter therein .alleged,1 this defendant neititer admits nor denies the sane, not h.tvirg sufficient information to form a belief and leaves the plaintiff to her proofs. COUNT VII 1. Thi3 defendant incorporates herein by reference and makes a part hereof its answer to Count VII of plaintiff's original complaint. COUNT VIII 1. This defendant a ,'optr. and incorporates herein bv reference its answer to the origin'll rr -v.-lr. *ui , NL 000039233 COUM IX 1. This defendant adopts and incorporates herein by reference its answer to the original complaint. c o u n t __x 1. This defendant adopts and incorporates herein by reference its answer to the original complaint. COUNT XI 1. This defendant adopts and incorporates herein by reference its answer to the original complaint. i t t-nudUIFORE, this defendant prays th-tt plain' iff*s complaint and amended complaint be d (tv'inr.n I as to thir t<*1:-nd&<\t, with costs so wrongfully sustained to this defendant. uoiic:: or AifXi.uiAiTVC .r; ;i'; Now comes the above n.'-ed '`atondwt, Cr'?'r C' v-X*QX?t a .Municipal Corporation, ONLY, by and through its attorney*, r;<\rAri, LUCOM, HILLER, LEHMAN, SEWARD COOS-KC, V .K., and giVfT .notict that the following will constitute its affirtiati*.-*. a f>a : ?* > in t-he ainv'o ohunrs 1. This defendant i'l-.r'rt; r-'tes herein h; rr 'tr-no ' end --a part hereof its affirmative defenses an alleged J n their original answer and in their amended answer. 2. This defendant pleads the Statute of Limitations in barring this aotion. 3. This defendant affirmatively rststen that till." notion should bo dismissed as to this if: for'.ant because of govern-'natal immunity afforded to this defendant. ML 000039234 WHEREFORE, this defendant prays that plaintiff's complaint and amended complaint bo dismissed as to this defendant, with costs so wrong" fully sustained to this defendant. DATED* Juno 7, 1977 Detroit, Michigan GAIUUI, LUCOW, MILAM, LEHMAR, SEWARD i COOPER, P.C. ' y / / 'll ten Lacov_________________ Milton Lucow Attorneys for Defendant, CITY OP DETROIT, OMLY 561 East .Toffax son Avenue Detroit, Michigan, 48226 962-5180 , * - i> NL 000039235 STATE OK MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, et al. Plaint if fs -vs- Case No. 74-002-312 NO CITY OF DETROIT, a municipal corporation and N.L. INDUSTRIES, INC., a New Jersey Corp., jointly and severally. Defendants SECOND STIPULATION FOR ADJOURNMENT OF PRE-TRIAL IT IS HEREBY STIPULATED and agreed by and between the parties, through their respective counsel, that the discovery deadline date should be ninety days from the date hereof and that a , Pre-Trial should be set up as soon as possible by the court after said ninety days have elapsed. BARRON AND KNOPPOW By: __________________________________ Ronald M.Barron Attorneys for Plaintiffs 3001 W. Big Beaver Suite 326 Troy, Michigan 48084 649-2828 Milton Lucow Att. For Def. City of Detroit 561 East Jefferson Detroit, Michigan Charles B. Cheatham Att. for Def. N.L. Industries 2450 Buhl Building Detroit, Michigan ORDER At a session of said court held in the City of Detroit, County of.^Wayne, State of Michigan, .i -t PRESENT: HONORABLE WILLIAM LEO CAHALAN Circuliitt Court .Jfuuddggee On reading the attached Stipulation and the Court being fully advised in the premises; NL 000039236 N 26060.02 LAW OFFICES BARRON AND KNOPPOW. 3001 WEST BIG BEAVER ROAD. SUITE 3 2 6 . TROY. M ICHIG AN 4 B 0 6 4 . (313) 6 4 9 *2 6 2 6 IT IS HEREBY ORDERED that the discovery deadline date should be ninety days from the date hereof and that a Pre-Trial should be set up as soon as possible by the court after said ninety days have elapsed. WILLIAM LEO CAHALAN Circuit Court Judge A TRUE COPY JAMES' R. KILLEEN / CLERK t NL 000039237 JUN 1 1977 lloZ? ' STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE Gladys Beasley, individually and as Next Friend of Steven Beasley, Wendell Beasley and Monique Beasley, all minors. vs. Plaintiffs, Civil Action No. 74-002-312-NO . ' The City of Detroit, a municipal corporation, and N. L. Industries, Inc., a New Jersey Corporation, jointly and severally. Defendants. / PRE-TRIAL ORDER TO ANSWER AMENDED COMPLAINT AND INTERROGATORIES Ronald M. Barron 3001 W. Big Beaver - Suite 326 Troy, Michigan 48084 Attorney for Plaintiff. Roy E. Costello 561 E. Jefferson Avenue Detroit, Michigan 48226 Attorney for City of Detroit. Charles C. Cheatham 2450 Buhl Building Detroit, Michigan 48226 Attorney for N. L. industries. NL 000039238 N 26060.03 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE Gladys Beasley, individually and as Next Friend of Steven Beasley, Wendell Beasley and Monique Beasley, all minors. Plaintiffs, vs. The City of Detroit, a municipal corporation, and N. L. Industries, Inc a New Jersey Corporation, jointly and severally. Civil Action No. 74-002-312-NO i ? Defendants. ____________________________________ _/. PRE-TRIAB ORDER At a session of said court held in the City of Detroit, County of Wayne, State of Michigan, on __________________3 1 1977 PRESENT: HONORABLE WILLIAM LEO CAHALAN Circuit Court Judge Parties having appeared for Pre-Trial Conference on May 24, 1977, it appears that the following must be accom plished prior to the formal Pre-Trial Conference, IT IS HEREBY ORDERED that Defendant City of Detroit will file an answer to the amended complaint and to additional interrogatories of the plaintiff within two weeks. Defendant N. L. Industries will file answers to plaintiff's interrogatories within 30 days. WILLIAM LEO CAHALAN NL 000039239 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, et al, Plaintiffs, Hon. William Cahalan (P11509) -vs- No. 74-002-312 NO CITY OF DETROIT and N. L. INDUSTRIES, INC., Defendants. ________ / SUBSTITUTION OF ATTORNEYS TO: THE CLERK OF THE COURT - and- ALL ATTORNEYS OF RECORD PLEASE TAKE NOTICE that the undersigned has this da> been substituted as attorney for the defendant N. L. INDUSTRIES, INC., only, in the above-entitled cause in the place and stead of BUCHANAN, OGNE and JINKS. MORBACH, CHEATHAM and MacARTHUR BY: CHARLES C. CHEATHAM (PlT8l5) Attorneys for Defendant N.L.Industries 2450 Buhl Building Detroit, Michigan 48226 964-1146 DATED: APRIL , 1977 I HEREBY CONSENT TO THE ABOVE SUBSTITUTION { AND WITHDRAW MY APPEARANCE. BUCHANAN, OGNE & JINKS BY:_______________________________________________________ G. CAMERON BUCHANAN l _a w Omcc KBACH.CHEATHAM ft Ma c ARTHUR <nO *UMt_ UlLDtMQ o it . mic mic a h eaa (319) 964-U46 NL 000039240 N 26060.04 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, -vs- THE CITY OF DETROIT, a Municipal Corporation and N.L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally, Defendants. ROBERT H. GOLDEN (P14108) Of Counsel Attorney for Plaintiffs / ALVIN R. DAVIDSON (P12567) Attorney for Defendant: No. 74-002312 NO t f ANSWER NOW COMES the City of Detroit, a municipal corporation, by and through its attorneys, Robert Reese, Corporation Counsel, Thomas J. O'Dowd and Alvin R. Davidson, Assistants Corporation Counsel, and answers the complaint of the plaintiffs as follows: GENERAL JURISDICTIONAL AVERMENTS 1. Paragraph 1 is affirmed. 2. Paragraph 2 is affirmed. 3. Paragraph 3 is neither affirmed non denied by.'the defendant, herein for lack of proofs on which to form an opinion. 4. Paragraph 4 is affirmed. C0UNT_1 1. Paragraph 1 is affirmed to the extent that plaintiffs occupied same, but defendants' records show initial occupancy on November 6, 1969. Defendant denies any express or implied warranties inure to the monthly lease. -2- NL 000039241 N 26060.05 2. Paragraph 2 is 3. Paragraph 3 is affirmed. affirmed. 4. Paragraph 4 is affirmed. 5. Paragraph 5 is affirmed to the extent that the business of the co-defendant causes an increase in the amount of lead particles in the air surrounding said co-defendant's business, but the remaining allegations must be denied for lack of knowledge thereof, leaving plaintiffs to their proofs. 6. Paragraph 6 is neither affirmed nor denied, leaving plaintiffs to their proofs. 7. Paragraph 7 is neither affirmed nor denied, leaving plaintiffs to their proofs. . 8. Paragraph 8 is neither affirmed nor denied, leaving plaintiffs to their proofs. 9. Paragraph 9 is neither affirmed nor denied, leaving plaintiffs to their proofs. 10. Paragraph 10 is neither affirmed nor denied, leaving plaintiffs to their proofs. 11. Paragraph 11 is denied to the extent the defendant herein is alleged to have contributed to the pollution of the air and atmosphere, but is neither affirmed nor denied relative to the balance of the paragraph, leaving plaintiffs to their proofs. COUNT II 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied specifically, as defendant was neither negligent nor in breach of any warranty, express or implied. Defendant answers the sub sections of this paragraph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is affirmed to the extent that the air throughout the City of Detroit is infiltrated by lead and other chemicals from automobile exhausts. Any other meaning implied by the plaintiffs is left to their proofs. - 3- NL 000039242 C. Subsection C is neither affirmed nor denied, leaving plaintiffs to their proofs. COUNT III 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied. Defendant, answers the subsections of this para graph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the duel lings. B. Subsection B is neither affirmed nor denied, plaintiffs being left i * to their proofs. . C. Subsection C is neither affirmed nor denied, plaintiffs being left to their proofs. D. Subsection D is denied. Defendant City of Detroit lacked the knowledge, capability and jurisdiction to effect the air in and around plaintiffs' dwelling. COUNT IV 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical damage. COUNT V 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. -4_ NL 000039243 COUNT VI 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symtomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VIII , 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies tne symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. AFFIRMATIVE DEFENSES The defendant herein, the City of Detroit, sets forth the following affirmative defenses to the plaintiffs' Complaint: - 5- NL 000039244 1. The elevated blood-lead levels of the plaintiffs' in this cause are variables which constitute ambiguous measurements, and are not evidence, per se, of V lead poisoning, but of a condition which lends itself to treatment by chelation therapy. 2. That the elevated blood-lead levels of the plaintiffs in this cause were not proximately caused by any negligent actions of the City of Detroit, but by the actions of National Lead Industries, Inc. 3. That the numerous paintings of the structures known as public housing by the City of Detroit was an attempt to make and maintain those structures in a manner consistent,with what is generally known as decent. 4. That the state of the technology of paint production open to both the Cjty of Detroit and consumers generally was so primitive until the 1960's that most of the paint sold and purchased exceeded the generally recognized 'safe' limits of lead compounds insisted upon today by Federal regulations. 5. That to hold the City of Detroit liable for the use of such paints when the dangers in those paints of lead base were virtually unknown would be analo gous to strict liability. 6. That the condition of children eating paint chips or chewing paint from some painted surface in public housing was not foreseeable and was not consistent with the purposes for which the paint was used by the defendant. City of Detroit. 7. That prior to the plaintiffs moving into the building at 4803 . Nevada, that unit was painted throughout with non-lead or low-lead based paint. 8. That plaintiff, Gladys Beasley, never complained to the building managerabout the condition of any painted surface in her home, but the City of Detroit, through an enforcement program initiated by the Department of Health, scraped and removed questionable chipping paint from the interior and exterior of plaintiffs' dwelling beginning in February, 1973. 9. That the plaintiff, Gladys Beasley, knows and knew of her children's, plaintiffs, propensity to put non-food items into their mouths by virtue of her close supervision of said children, but in not stopping said con duct, was negligent by her inaction. The children, in ingesting non-food items were contributing factors to their own illnesses, and thus, contributorily negligent. -6- NL 000039245 10. That the detection and enforcement of clean air laws is the duty of the Wayne County Pollution Control Center by statute. Act 306 of P.A. of 1927 (MCLA 327.205 and 206); and that those antipollution laws may be enforced by any citizen of the State of Michigan, Act 127 of P.A. of 1970 (MCLA 691.1202). WHEREFORE, it is prayed that this action be dismissed against the defendant, City of Detroit, and that this Honorable Court grant such other relief as it deems necessary and equitable. DATED; March 6, 1974 Alvin R. Davidson Assistant Corporation Counsel City of Detroit 1010 City-County Building Detroit, Michigan 48226 (313) 224-6943; 224-3423 -7- NL 000039246 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTV OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEA.SLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors, PI ai nti ffs , - vs- THE CITY OF DETROIT, a Municipal Corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. ROBERT H. GOLDEN (PI4108) Of Counsel Attorney for Plaintiffs / ALVIN R. DAVIDSON (PI2567) Attorney for Defendant No. 74-002312 NO ANSWER . ROBERT REESE, Corporation Counsel THOMAS J. O'DOWD, ALVIN R. DAVIDSON, Assistants Corporation Counsel Attorneys for Defendant 1010 City-County Building Detroit, Micltioan 48226 (313) 224-6943; 224-3423 NL 000039247 I STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, individually and as Next Friend of-STEVEN BEASLEY, { BRIAN BEASLEY, DERRIfK BEASLEY, { (WENDELL BEASLEY andyMONIOUE BEASLEY, all minors, Plaintiffs, -vs- No: 74 002312 NO THE CITY OF DETROIT, a Municipal Corporation; and NL INDUSTRIES, INC., I a New Jersey Corporation, jointly and severally, Defendants. / ! ANSWER TO PLAI?TTTrrr * AMENDED COMPLAINT i| | How comes the Defendant, NL INDUSTRIES, INC., a New I Jersey Corporation, by BUCHANAN, OGNE AND JINKS P.C., its ! Attorneys, and in answer to the Plaintiffs' pleading captioned Amended Complaint says: GENERAL JURISDICTIONAL A'NTRI'ENTS : 1. Defendant adopts and incorporates by reference the Answer filed to the original Complaint pertaining to i, i: Jurisdictional Averments. ADOFTION AND INCORPORATION BY REFERENCE OF ORIGINAX ANSWER ; 1. Defendant, HI. INDUSTRIES, INC., adopts and j. incorporates by reference the complete original answer to the !! ' |! original Complaint and supplements the same with specific reference to -par-iyraphn sot forth in thr .'mended Coripl.-.int 4. Answe-ring paragraph *4 of Count I of the Amended I Complaint, Defendant denies that in the conduct of its -1-- NL 000039248 N 26060.06 ! | business it acted in a willful, wanton or negligent manner; j denies that it violated any duties owing to the public or the j: plaintiffs; denies any duties to the plaintiffs in relation to the allegations of their complaint. COUNT IX Defendant adopts and incorporates by reference li the complete original answer to the original Complaint and ! supplements the same with specific reference to paragraphs set forth in the Amended Complaint. | COUNT III li ................ 1 Defendint adopts an'! incorporates by reference the complete original answer to the original Complaint and j| i| supplements the same with specific reference to paragraphs ii I] set forth in the Amended Complaint. COUNT IV._____ I : 1. C~fondant adopts and incorporates by reference answer to paragraphs one through eleven of Count I of the original Complaint and supplerwnts the sane with specific reference to paragraphs set forth in the Amended Complaint. 2. Answering paragraph 2 of Count IV, Defendant I denies the allegations in said paragraph contained, avers that | the said allegations are conclusion of the cleader, are suri: u plusage and that the allegations of the complaint are in sufficient to constitute, a claim- of nuisance and on the trial of |j this cause this Defendant will move tp strike the allegation ji from the Amended Complaint. |l ' COLilJT__V. _ 1, Defendant adopts and Incorporates by reference answer to paragraphs one through eleven of Count I of the NL 000039249 original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. 2. Answering paragraph 2 of Count V, Defendant denies the allegations in said paragraph contained, avers that said allegations are not, in fact, true, and in further answer avers that other allegations of the Complaints do not support the language which simply constitutes a conclusion of the pleader, is surplusage and Defendant will move to strike the allegations from the Complaint at the time of trial. COUNT VI. _i 1. Defendant adopts and incorporates by reference answer to paragraphs one through eleven of Count I of the original Complaint and supplements the same with specific reference to paragraphs set forth in the Amended Complaint. 2. Defendant denies the allegations in said paragraph contained, avers that the allegations are not, in fact true and in further answer avers that the allegations do not state a cause of action cognizable under the law of the State of Michigan. 3. Answering paragraph 3, Defendant denies the allegations in said paragraph contained, avers that the theory of a right of recovery under strict liability is not recognized in the State of Michigan. COUNT VII. 1. Defendant has heretofore set forth and adopts ;and incorporates by reference the answers to the original Complaint. ] COUNT VIII. 1. Defendant as heretofore set forth, adopts and -3- NL 000039250 ji | incorporates by reference the answers to the original Complaint. COUNT IX. 1. Defendant as heretofore set forth, adopts and incorporates by reference the answers to the original Complaint. COUNT X. 1. Defendant as heretofore set forth, adopts and incorporates by reference the answers to the original Complaint. COUNT XI. 1. Defendant as heretofore set forth, adopts and incorporates by reference the answers to the original Complaint. il ji WHEREFORE, Defendant asks Judgment of no cause of jj action together with costs so wrongfully incurred. I II !l !j Dated: March 8, 1977 !| BUCHANAN, CONE AND JINKS P.C. ! G. Cameron Buchanan P11340 Attorney for NL Industries, Inc. Suite 1707, 755 West Big Beaver Road Troy, Michigan, 48064 362 3707 NL 000039251 ~s \ STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Ci' ii Action No. 74 002 312 NO G1adves Beasley Ronald M. Barron Plaintiff Attorney NL Industries, Inc. et al Do fondant G. Cameron Buchanan P11340 Attorney Indicate that which applies: Auto Negligence-------------------------Other Genera! Cnii --------------------Date of Service---------------------------------------------- , (THIS SPACE FOR USE OF CLERK ONLY) JURY:______________ NON-JURY----------------------Assigned to JUDGE----------- ----------------------------- Notices Mailed--- -------------------------------------------------- d at e: Assigned to Pre-Trial-------------------------------------5 Oa t e : Adj. to --- :----------------------------------------------------Adj. to :-----------------------------------------------------------Adj. to --------------------------------------------------------------- . -- r\ .... AT 1SS\ E PHAEC1PK IV Civil. ACTIONS v 74 002312 NO k. * Praecipe No. ... .................................... .................-- GLADYS BEASLEY ET AL Plaintiff VS. NL INDUSTRIES, INC. ET AL To Clerk of Wayne Count) 201 City-County Bldg. Detroit, Michigan, 4K226 Defendant This action is at issue as to all the parties and has been assigned to JUDGE Williaffl Cahalan Dated 3/8/77 P11509 Ronald M. Barron P10493 3001 W. Big Beaver Any. f Pltf. Road, Troy, Mich. Suite 326 649 2828 Address Sylvester Delaney nvt U.Trt?*?0* City of Detroit P23690 1010 City County Bldg Atty. for Deft. Detroit, Mich.(A>v/><*:, Vv\f 224-6943 Address Buchanan, Ogne & Jinks Telephone nv- NL Industries, Inc. Suite 1707, 755 W. Big Troy, Mich 362-3707 Atty. Beaver Address Rd. Telephone Kill ad blanks. In case of appearance in pro per the address of the party or parties must he given. If more space is needed, attach rider. NL 000039252 f 2. In the second line of Paragraph six, Count I, of the original Complaint, Plaintiffs delete the words "three years" and in its place and stead place the words "several years". As to the remaining allegations in Paragraph six, Count I, of the original Complaint, Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained therein as if fully stated herein. 3. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs seven through eleven of Count I in the original Complaint as if fully stated herein. 4. That the aforesaid willful, wanton and negligent acts of the Defendant, N. L. Industries, Inc., violated duties owing to the general public and more particularly, the Plaintiffs herein. COUNT II 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one and two of Count II in the original Complaint as if fully stated herein. COUNT III 1.. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one and two of Count III in the original Complaint as if fully stated herein. NL 000039254 X N 26060.07 LAW OFFICES BARRON AND KNOPPOW. 3001 WEST BIG BEAVER ROAD. SUITE 32S . TROY. M ICHIG AN 4 8 0 0 4 , (313) 0 4 3 -2 8 2 COUNT IV 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid actions and/or emissions of the Defendant, N. L. INDUSTRIES, INC. created a nuisance in fact and in law by causing substantial inconvenience, interference and damages to the Plaintiffs in their pursuit of the lawful enjoyments of their property and related rights. COUNT V 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid acts of the Defendant, N. L. INDUSTRIES , INC. constituted a trespass by emitting fouled and lead burdened air containing contaminated particles onto Plaintiffs' property thereby invading Plaintiffs' rights to exclusive possession with out the consent of the Plaintiffs. COUNT VI 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through eleven of Count I of the Amended Complaint as if fully stated herein. 2. That the aforesaid manufacturing process which Defendant, N. L. INDUSTRIES, INC. carried on in its factory is an ultra- -3- NL 000039255 hazardous activity in that it produces noxious lead burdened and fouled air? such noxious material escaping in the air in sufficient quantities endangering the life and health of persons breathing the air. That the Plaintiffs are within the class of persons that Defendant's officers, agents and employees recognized or should have recognized as likely to be harmed by such emissions. 3. Therefore Defendant, N. L. INDUSTRIES, INC. is strictly ! liable to Plaintiffs for injuries inflicted on them by Defendant's W) " dangerous instrumentality, namely its factory, operated in (0 furtherance of Defendant's ultrahazardous activity. Z< 2 5 COUNT VII i 0 1. Plaintiffs reiterate word for word and paragraph for 5 paragraph all the allegations contained in Paragraphs one n Id 1 through three of Count lyof the original Complaint as if fully m stated herein with one exception, to-wit: In the second line C of paragraph two, the word "since" shall be deleted and in its < Id " place and stead the words "subsequent to" shall be added. m 2 - - S COUNT VIII 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count V of the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. COUNT IX 1. Plaintiffs reiterate word for word and paragraph for -4- NL 000039256 S" { . paragraph all the allegations contained in Paragraphs one through three of Count VI of the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. N<D COUNT X 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count VII of the original' Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. COUNT XI 1. Plaintiffs reiterate word for word and paragraph for paragraph all the allegations contained in Paragraphs one through three of Count VIII of the original Complaint as if fully stated herein with one exception, to-wit: In the second line of paragraph two, the word "since" shall be deleted and in its place and stead the words "subsequent to" shall be added. WHEREFORE, Plaintiff, GLADYS BEASLEY, prays' judgment for Plaintiff and against Defendants, jointly and severally, in the sum of Five Million Dollars ($5,000,000.00) as compensatory and exemplary damages, or in such other sums as a court or jury upon a trial of this cause, shall deem just, fair and equitable, plus costs, interest and attorney fees. -5- NL 000039257 WHEREFORE, your Plaintiff, GLADYS BEASLEY, as next friend of the minor Plaintiffs herein, prays judgment for said minor Plaintiffs in the sum of Five Million Dollars ($5,000,000.00) each, as compensatory and exemplary damages, or in such other sum as a court or jury shall deem just, fair and equitable, plus costs, interest and attorney fees. Na BARRON AND KNOPPOW n * | * j >: S U | Dated: OcQ<c a November 8, 1976 CD u * oo os a. ao. zX o 2 Z aoa. m< u. o By: ____________________________________________ Ronald M. Barron Attorneys for Plaintiffs 3001 W. Big Beaver Suite Troy, Michigan 48084 649-2828 326 -6- NL 000039258 N \ STATE OF MICHIGAN! IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors, Plaintiffs -vs- THE CITY OF DETROIT, a municipal corporation, and N'. L. INDUSTRIES, INC. a New Jersey Corporation, Jointly and Severally, Defendants No. 74 002 312 NO / ORDER TO AMEND COMPLAINT At a session of said court held in the City of Detroit, County of Wayne, State of Michigan, on_______________________ i;j/0 ________________________________ PRESENT : HONORABLE _____, IOS?PH C- Circuit Court Judge This matter having come on to be heard, all parties being represented by counsel, and the Court being fully advised in the premises; IT IS HEREBY ORDERED that Plaintiffs' Complaint be amended so as to add counts for Strict Liability, Nuisance and Trespass. Approved: n G. RASH!" Circuit Court Judge Syl Delaney, Att.^for City of Det. G. Cameron Buchanan, Att. ror N. L. Industries NL 000039259 N 26060.08 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs -vs- No. 74 002 312 NO THE CITY OF DETROIT, a municipal corporation, and J. L. INDUSTRIES, INC. a New Jersey Corporation, jointly and severally. Defendants :_________________________ ___ / A U MOTION TO AMEND COMPLAINT NOW COMES the Plaintiffs, GLADYS BEASLEY, individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK o Q BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors, u s by and through their counsel, BARRON AND KNOPPOW, and hereby oo moves this Honorable Court for leave to amend the Complaint so oJL 0. oXz as to add a count for strict liability, nuisance and trespass Q for the reasons stated in the attached Affidavit and Brief Z < c.z o In Support thereof. c BARRON AND KNOPPOW IL o Attorneys for Plaintiffs 3001 W. Big Beaver Suite Troy, Michigan 48084 649-2828 326 ML 000039260 N 26060.09 ` ' * oo 4I . STATE OF MICHIGAN) )SS COUNTY OF OAKLAND) AFFIDAVIT OF RONALD M. BARRON _________IN SUPPORT OF MOTION RONALD M. BARRON, after having been duly sworn, deposes and says: 1. That he is the attorney of record for the Plaintiffs herein. 2. That the above entitled action was originally commenced on January 24, 1974, and was drafted by a previous attorney. 3. That the instant case is very 'complicated in both law and fact. 4. The deponent was substituted as attorney for the Plaintiffs on March 3, 1976. 5. That the instant law suit originally plead causes of action in negligence and breach of warranty in that the Defendants had polluted the air and residence thereby causing brain damage to the Plaintiff's children. 6. That the above.entitled action deals with a new body of law popularly referred to as "environmental law." 7. Deponent, after reviewing the limited Michigan law as well as the vast body of national law, believes the aforesaid added counts are supported by law. 8. That the pre-trial is scheduled for February 1, 1977, ' therefore, discovery has not been completed. 9. That the statute of limitations on the added counts has not expired. 10. That preparation and work done to date by attorney for Defendants are applicable to the new theories. XI. That granting the requested motion would avoid a multiplicity of protracted litigation and would be in the interest of the convenient administration of justice to allow the filing of the Amended Complaint. 12. That attorney for N. L. Industries was contacted by telephone to see if he would acquiesce to the relief prayed for, however, as of this date, he has not returned the phone call. 13. That attorney for City of Detroit was unable to be contacted due to the fact that the attorney of record no longer is employed for said City of Detroit and no on at said City of Detroit knew who was going to ' Ronald M. Barron Subscribed and sworn to before me this 18th day of October, 1976 Eileen Tei/m'an - Oakland County My Commission Expires: 10-11-77 NL 000039262 \ l; BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT NCD <V o o o z < 0 o 2 >>oc-' o oo ir.<u2. Since the Defendants will not be substantially "pre judiced" by the proposed Amendments, justice requires that leave be given in the instant case. General Court Rule Section 118.1 holds that leave to appeal should be "freely given when justice so requires." It has been held that the court rule "incorporate a policy in f.avor of allowing amendments when justice would be served." Jones v. Causey, 43 Mich. App. 271, (1,973). While the trial court has the discretion to deny a motion to amend, it may only do so if the court specifically finds that justice would not be served by the amendment Doar. v. Chesapeak. Ohio Railroad, 18 Mich. App. 271, 171 NW2d 27 (1969). In order to find that justice would not be served by the amendment, the court must find that the opposing party would be "prejudiced" by the amendment, Ben P. Fyke & Sons,'Inc. vs, Gunter Co., 390 Mich 649, 213 NW2d 134 (1973). The prejudice that it referred to in .Fyke is the time the amend ment is offered, not the subject matter. If due to the lapse of time from the initial complaint until the amendment, the opposing party would be prevented from maintaining a defense, only then should leave be denied. From the facts of this case (See Affidavit and Brief in Support of Motion attached hereto), it is clear that Defendants would not be so prejudiced by the delay in this case. The court in Fyke went on to hold that the discretion giver a judge to disallow the amendment is not boundless, the trial NL 000039263 V :' v, r judge in order to disallow leave must find that justice would not be served i.e. that the opposing party would be unduly prejudiced. That not being the instant case, leave should be granted. ''Ronald'M. Barron Attorney&-,.for Plaintiffs 3001 W. Big Beaver Suite Trov, Michigan 48084 "649-2828 326 NL 000039264 x  a. '- 'iUM`-i STATE OF MICHIGAN tCUIT COURT FOR THE COUNTY OF WAYNE tdividually and STEVEN BEASLEY, IRICK BEASLEY, FILE WITH ASSIGNMENT CLERK ONLY PRAECIPE FOR MOTION Gladys Beasley et al plaintiff STATE OF MICHIGAN The Circuit Court for the County of Wayne 74 002312 NO Civil Action No. VS City of Detroit et al defendant Criminal No. -- AT ISSUE PRAECIPE No. (if any) . To the Assignment Clerk: Please place a motion for (state nature of motion in brief form) Motion To Amend Complaint__________________ on the motion calendar for (date) October 29, 1976 This action has been assigned to JUDGE____Rashid Adjourned to . Adjourned to . Adjourned to . Disposition 19- Attorney Ronald M. Barron Plaintiff 649-2828 Telephone No.--------------------------------- . G. Cameron Buchanan Attomey N. L. Industries'--'.... Defendant Telephone No. . Attorney . Telephone No------------------------------------------(list additional attorneys on other side) STATE OF MICHIGAN) )SS COUNTY OF OAKLAND) AFFIDAVIT OF RONALD M. BARRON _________IN SUPPORT OF MOTION RONALD M. BARRON, after having been duly sworn, deposes and says: 1. That he is the attorney of record for the Plaintiffs herein. 2. That the above entitled action was originally commenced 9t in on January 24, 1974, and was drafted by a previous attorney. 3. That the instant case is very 'complicated in both law and fact. 4. The deponent was substituted as attorney for the Plaintiffs on March 3, 1976. 5. That the instant law suit originally plead causes of action in negligence and breach of warranty, in that the Defendant s had polluted the air and residence thereby causing brain damage to the Plaintiff's children. 6. That the above entitled action deals with a new body of law popularly referred to as "environmental law.'1 7. Deponent, after reviewing the limited Michigan law as well as the vast body of national law, believes the aforesaid added counts are supported by law. 8. That the pre-trial is scheduled for February 1, 1977,' therefore, discovery has not been completed. 9. That the statute of limitations on the added counts has not expired. 10. That preparation and work done to date by attorney for Defendants are applicable to the. new theories. NL 000039266 X 11. That granting the requested motion would avoid a multiplicity of protracted litigation and would be in the interest of the convenient administration of justice to allow the filing of the Amended Complaint. 12. That attorney for N. L. Industries was contacted by telephone to see if he would acquiesce to the relief prayed for, however, as of this date, he has not returned the phone call. 13. That attorney for City of Detroit was unable to be contacted due to the fact that the attorney of record no longer is employed for said City of Detroit and no on at said City of Detroit knew who was going to Subscribed and sworn to before me this 18th day of October, 1976 -v J / O Eileen Telman - Oakland County My Commission Expires: 10-11-77 NL 000039267 L A W O F F IC E S B A R R O N A N D K NO P P O W , 3 0 0 1 W E S T B IG BEAVER R O A D . S U IT E 3 S 9 . TROY. M IC H IG A N 4 8 0 B 4*. (313) BRIEF IN SUPPORT OF MOTION TO AMEND COMPLAINT Since the Defendants will not be substantially "pre judiced" by the proposed Amendments, justice requires that leave be given in the instant case. General Court Rule Section 118.1 holds that leave to appeal should be "freely given when justice so requires." It ta4 I has been held that the court rule "incorporate a policy in favor of allowing amendments when justice would be served." Jones v. Causey, 43 Mich. App. 271, (1973). While the trial court has the discretion to deny a motion to amend, it may only do so if the court specifically finds that justice would not be served by the amendment Doan v. Chesapeak Ohio Railroad, 18 Mich. App. 271, 171 NW2d 27 (1969). In order to find that justice would not be served by the amendment, the court must find that the opposing party would be "prejudiced" by the amendment, Ben P. Fyke & Sons, Inc vs. Gunter Co., 390 Mich 649, 213 NW2d 134 (1973). The prejudice that it referred to in Fyke is the time the amend ment is offered, not the subject matter. If due to the lapse of time from the initial complaint until the amendment, the opposing party would be prevented from maintaining a defense, only then should leave be denied. From the facts of this case (See Affidavit and Brief in Support of Motion attached hereto), it is clear that Defendants would not be so prejudiced by the delay in this case. The court in Fyke went on to hold that the discretion give a judge to disallow the amendment is not boundless, the trial NL 000039268 ' \n *.r judge in order to disallow leave must find that justice would not be served i.e. that the opposing party would be unduly prejudiced. That not being the instant case, leave should be granted. N0 ' Ronald M. Barron Attorneys,for Plaintiffs 3001 W. Big Beaver Suite Troy, Michigan 48084 649-2828 326 W 0W>3SJ69 N X- LAW OFFICES BARRON AND KNOPPOW , 3001 WEST BIG BEAVER ROAD, SUITE 3 2 6 , TROY. M IC H IG AN * 0 0 8 4 . (313) 6 4 6 -2 8 2 8 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Et al. Plaintiffs -vsTHE CITY OF DETROIT, Et al. Defendants __________________ / No. 74-002-312 NO ORDER ADJOURNING PRE-TRIAL At a session of said court held in the City of Detroit, County of Wayne, State r, ,n,n7S of Michigan, on lUlWg PRESENT: HONORABLE y.yin I AM LEO CAHAlAN Circuit Court Judge On reading the attached Stipulation and the court being fully advised in the premises, IT IS HEREBY ORDERED that the pre-trial in the above cause be adjourned from August 31, 1976, to a date to be set by the court, said date to be a minimum of six months subsequent to August 31, 1976. fa Jth/ /* /V/5 /, il77 ^ P./srsf'h j;jj,\M !..rO CAHALAN Circuit Court Judge ML 000039270 N 26060.1 r- STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Et al. Plaintiffs -vsTHE CITY OF DETROIT, Et al. Defendants No. 74-002-312 NO STIPULATION ADJOURNING PRE-TRIAL IT IS HEREBY STIPULATED by and between the parties, through their respective counsel, that the pre-trial in the above cause be adjourned from August 31, 1976, to a date to be set by the court, said date to be a minimum of six months subsequent to August 31, 1976. BARRON AND KNOPPOW By; /a/ Ronald M. Barron Ronald M. Barron Attorneys for Plaintiffs 3001 W. Big Beaver #326 Troy, Michigan 48084 649-2828 -Alvin Davldaon Alvin Davidson Attorney for Defendant, CITY OF DETROIT 1010 City-County Building Detroit, Michigan 48226 224-6943 A /a/ G. Cameron'Buchanan------ G. Cameron Buchanan Attorney for Defendant, N.L. Industries, Inc. 755 West Big Beaver #1707 Troy, Michigan 48084 362-3707 NL 000039271 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE Peter Dozorc, Robert H. GoldenATTORNEY FOR PLAINTIFF Alvin R. Davidson G. Cameron Buchanan Gladys Beasley, et al City of Detroit & N.L. Industries, Inc. ACTION NO74 002 312 NOPRAECIPE NO . ATTORNEY FOR DEFENDANT PLAINTIFF DEFENDANT NOTICE TO ATTORNEYS: NO LATER THAN 10 DAYS AFTER RECEIPT OF THE PRE-TRIAL NOTICE, COUNSEL MUST SERVE A COPY OF THIS FORM COMPLETELY FILLED OUT, ON ALL ATTORNEYS OF RECORD. THIS ACTION HAS BEEN SET FOR A PRE-TRIAL HEARING BEFORE THE HONORABLE w-iniam GahalanON_______________July 27.1976___a t 2;15 p.m. ATTORNEYS MUST PRESENT THIS FORM, COMPLETELY FILLED OUT TO THE CLERK OF THE PRE-TRIAL JUDGE ON OR BEFORE THE DATE OF HEARING AND THEY MUST BE PREPARED TO COMPLY WITH ALL OF THE PROVISIONS OF MICHIGAN COURT RULE 301. G. Cameron Buchanan______________WILL BE THE ATTORNEY PRESENTING THIS STATEMENT AND ATTENDING THE CONFERENCE AND WHO WILL REPRESENT--------. N L Industries, Inc. i j i 1. FACTUAL STATEMENT OF PLAINTIFFS CLAIMS OR DEFENDANTS CLAIMS, INCLUDING COUNTER CLAIMS, CROSS CLAIMS AND AFFIRMATIVE DEFENSES. (If space on this form is insufficient, counsel may prepare additional sheets and attach to this form.) The statement of your claim should be stated in language which the trial court may utilize to succinctly relate to theJury your claim or theoiy of your case. NL Industries, Inc. will disclose that there is no relationship between the operation of Defendant's business and the alleged lead poisoning of the plaintiffs. Further, that the causes of the existing lead level in a number of the plaintiffs was within normal limits and increased to abnormal limits after the family moved from the area of defendant's business operation. The cause of the lead in the blood of the various plaintiffs is very well known to the plaintiff, well-documehted in the medical records and clearly established to have been related to and caused by the conduct of the children with reference to paint inthe households wherein they resided. 2. i. WHAT, BRIEFLY, ARE THE FACTUAL AND LEGAL ISSUES TO BE LITIGATED? Relationship of allged lead poisoning of plaintiffs to manufacturing operations of NL Industries, Inc. NL 000039272 3. IF PLEADINGS ARE Nl SATISFACTORY AT THIS TIME, WHAT ,RMAL AMENDMENTS WILL YOU REQUEST AT PRE-TRIAL? Pleadings are satisfactory. 4. WHY IS SUCH AMENDMENT NECESSARY? 5. WHY WAS IT NOT SOUGHT PRIOR TO PRE-TRIAL? INJURIES AND DAMAGES: 6. GIVE NAMES AND AGES OF INJURED PERSONS, AND IN DEATH CASES, NAMES, RELATIONSHIP AND AGES OF PERSONS ALLEGING PECUNIARY LOSS. 7. LIST ALL INJURIES AND STATE WHETHER PERMANENT. 7a. IF PERMANENT, WHO WILL TESTIFY TO THIS? 8. LENGTH OF TIME INCAPACITATED, TIME IN HOSPITAL AND AT HOME. 9. ITEMIZE AND TOTAL: a. Hospital Bills b. Doctor Bills and c. Any other items or expenses incurred or loss suffered. 10. IF WAGES ARE LOST, GIVE PLACE AND TYPE OF EMPLOYMENT, DATES LOST, WAGES EARNED AT TIME OF ACCIDENT AND TOTAL AMOUNT OF WAGES LOST. NL 000039273 11. IN DEATH CASES. STATE AMOUNT OF PECUNIARY LOSS AND TOTAL AMOUNT EACH CLAIMANT -- PLAINTIFF CLAIMS. (If space on this form is insufficient, counsel may prepare additional sheets and attach to this form.) 12. HAVE YOU FURNISHED THE OPPOSITE PARTY WITH YOUR DOCTOR'S DIAGNOSIS AND PROGNOSIS? 13. IF NOT, PLEASE EXPLAIN WHY. Defendant desires plaintiffs' doctor's diagnosis 14. IF DIAGNOSIS AND PROGNOSIS WILL NOT BE FURNISHED BY PRE-TRIAL CONFERENCE PLEASE EXPLAIN WHY. ADMISSIONS AND WAIVERS: OWNERSHIP AND OPERATION: ORDINANCES PLEADED: REASONABLENESS AND CAUSAi CONNECTION OF DOCTOR & HOSPITAL BILLS AND OTHER ITEMS OF DAMAGE. ETC. IS. ORDINANCES PLEADED: 16. (A) WHAT ADMISSIONS OF FACT ARE YOU PREPARED TO MAKE? None (B) WHAT ADMISSIONS OF FACT DO YOU DEMAND FROM OPPOSITE PARTY? the cause of lead in above level* of plaintiffs was due entirely to the conduct of plaintiff's children in consumption of paper, paint EXHIBITS:and various other objects covered by paint. 17. LIST AND BRINtiWITH YOU ALL EXHIBITS AND ANY OTHER EVIDENTIARY INFORMATION RELATING TO CASE. Records of Children's Hospital and records of Detroit Board of Education MEDICAL EXAMINATION: 18. IS A FURTHER MEDICAL EXAMINATION NECESSARY?___(If so, steps should be taken to complete examination before the Pre-Trial Conference.) 19. JURY OR NON-JURYJury IF JURY. DEPOSIT OF THE JURY FEE MUST BE MADE BY THE CLOSE OF THE PRE-TRIAL CONFERENCE OR JURY IS WAIVED. IF JURY. CONSIDER SEPARATION OF ISSUES AND THE ORDER OF TRIAL WHEN SOME ISSUES ARE TO BE TRIED BY A JURY AND SOME BY THE COURT 20. ESTIMATED TIME OF TRIAL5 ...days------------------------------------21. PLAINTIFF OFFERS TO TAKEIN FULL SETTLEMENT OF HIS CASE. ML 000039274 22. DEFENDANT OFFERS------ 2liSL----------------- ----------------------- 23. IS THIS CASE ONE FOR MEDIATION WITHIN MEANING OF WAYNE CIRCUIT COURT RULE #21?DO-------------------------------------- 24. ATTACH A LIST OF ALL WITNESSES YOU PLAN TO CALL AT THE TRIAL. List of witnesses will complied and furnished within 30 days 25. HAVE YOU READ PARAGRAPHS A-H (Pink Sheet) ATTACHED TO THIS FORM? Yes 26. IF THERE IS ANY DEFENDANT WHO HAS BEEN SERVED AND HAS NOT FILED AN ANSWER, PRESENT THE NECESSARY PLEADINGS TO MAKE A MOTION FOR DEFAULT IUDGMENT, AS TO THAT PARTY, AT THE PRE-TRIAL CONFERENCE IF THERE IS ANY DEFENDANT WHO HAS NOT BEEN SERVED, THE ACTION SHALL BE DISMISSED AS TO THAT PARTY. UNDER THE PROVISIONS OF THE SIX-MONTH RULE (MGCR 10Z5). BUCHANAN, OGNE AND JINKS P.C. BY: SIGNATURE OF TRIAL ATTORNEY G. Cameron Buchanan P11340 NOTE: YOU MUST SEND A COPY OF THIS FORM COMPLETELY FILLED OUT TO THE OPPOSITE PARTY OR PARTIES OF THE PRE-TRIAL NOTICE NO LATER THAN 10 DAYS AFTER RECEIPT. DISCOVERY MUST BE COMPLETED BEFORE THE PRE-TRIAL CONFERENCE. PLEASE NOTIFY THE ASSIGNMENT CLERK IMMEDIATELY OF ANY ATTORNEYS OF RECORD WHOSE NAMES DO NOT APPEAR ON THIS NOTICE. B64 i t NL 000039275 STATE OK MICHIGAN V IN THE CIRCUIT COURT FOR THE COUNTY Or WAYNE BARRON and KNOPPOW ATTORNEY FOR PLAINTIFF GARAN, LUCOW, MILLER, LEHMAN, SEWARD & COOPER, P.C. BUCHANAN, OGNE and JINKS, P.C. _ ATTORNEY FOR DEFENDANT , Gladys Beasley, et a I .PLAINTIFF i ii City of Detroit and N. L. Industries. Inc. .DEFENDANT ACTION NO74-002-312 NO: .PRAECIPE NO.. NOTICE TO ATTORNEYS: NO LATER THAN 10 DAYS AFTER RECEIPT OF THE PRE-TRIAL NOTICE, COUNSEL MUST SERVE A COPY OF THIS FORM COMPLETELY FILLED OUT, ON ALL ATTORNEYS OF RECORD. THIS ACTION HAS BEEN SET FOR A PRE-TRIAL HEARING BEFORE THE HONORABLE JUDGE WILLIAM CAHALANnM April 26, 1977 AT 2:15 P.M. - ATTORNEYS MUST PRESENT THIS FORM. COMPLETELY FILLED OUT TO THE CLERK OF THE PRE-TRIAL JUDGE ON OR BEFORE THE DATE OF HEARING AND THEY MUST BE PREPARED TO COMPLY WITH ALL OF THE PROVISIONS OF MICHIGAN COURT RULE 301. MILTON LUCOWWILL BE THE ATTORNEY PRESENTING THIS STATEMENT AND ATTENDING THE CONFERENCE AND WHO WILL REPRESENT THE ClTV OF DETROIT_____________________________________ 1. FACTUAL STATEMENT OF PLAINTIFF'S CLAIMS OR DEFENDANT'S CLAIMS, INCLUDING COUNTER CLAIMS, CROSS CLAIMS AND AFFIRMATIVE DEFENSES. (If space on this form is insufficient, counsel may prepare additional sheets and attach to this form.) The statement of your claim should be stated in language which the trial court may utilize to succinctly relate to the jury your claim or theory of your case. The defendant, CITY OF DETROIT, denies that it was guilty of any actionable negligence whatsoever and further denies that it was guilty of breaching any implied warranties; further, although this defendant vehemently denies the allegations of the plaintiff, in the event that same are found to be true, then the plaintiffs herein are guilty of negligence of an equal degree which was a proximate cause of the alleged injuries and damages. WHEREFORE, this defendant demands a judgment of no cause for action. THIS DEFENDANT ALSO PLEADS THE STATUTE OF LIMITATIONS. i. 2. WHAT, BRIEFLY, ARE THE FACTUAL AND LEGAL ISSUES TO BE LITIGATED? LIABILITY AND D/WAGES NL 000039276 3. IF PI.FADINGS ARl . NOT SATISFACTORY AT THIS TIME, WHm FORMAL AMENDMENTS WILL YOU REQUEST AT PRE-TRIAL"? 4. WHY IS SUCH AMENDMENT NECESSARY? 5. WHY WAS IT NOT SOUGHT PRIOR TO PRE-TRIAL? INJURIES AND DAMAGES: 6. GIVE NAMES AND AGES OF INJURED PERSONS. AND IN DEATH CASES, NAMES, RELATIONSHIP AND AGES OF PERSONS ALLECI.NG PECUNIARY LOSS. 7. LIST ALL INJURIES AND STATE WHETHER PERMANENT. 7a. IF PERMANENT, WHO WILL TESTIFY TO THIS? 8. LENGTH OF TIME INCAPACITATED, TIME IN HOSPITAL AND AT HOME. 9. ITEMIZE AND TOTAL: a. Hospital Bills b. Doctor Bills and c. Any other items or expenses incurred or loss suffered. i. 10. IF WAGES ARE LOST, GIVE PLACE AND TYPE OF EMPLOYMENT, DATES LOST. WAGES EARNED AT TIME OF ACCIDENT AND TOTAL AMOUNT OF WAGES LOST. NL 000039277 II. IN' DEATH CASES. STATE AMOUNT OE PECUNIARY LOSS AND TOTAL AMOUNT EACH CLAIMANT -- PLAINTIFF CLAIMS. (If space on this form is insufficient, counsel may prepare additional sheets and attach to this form.) 12. HAVE YOU FURNISHED TFIE OPPOSITE PARTY WITH YOUR DOCTOR'S DIAGNOSIS AND PROGNOSIS? 13. IF NOT, PLEASE EXPLAIN WHY. 14. IF DIAGNOSIS AND PROGNOSIS WILL NOT BE FURNISHED BY PRE-TRIAL CONFERENCE PLEASE EXPLAIN WHY. ADMISSIONS AND WAIVERS: OWNERSHIP AND OPERATION: ORDINANCES PLEADED: REASONABLENESS AND CAUSA. CONNECTION OF DOCTOR & HOSPITAL BILLS AND OTHER ITEMS OF DAMAGE, ETC. 15. ORDINANCES PLEADED: 16. (A) WHAT ADMISSIONS OF FACT ARE YOU PREPARED TO MAKE? (B) WHAT ADMISSIONS OF FACT DO YOU DEMAND FROM OPPOSITE PARTY? EXHIBITS: 17. LIST AND BRING WITH YOU ALL EXHIBITS AND ANY OTHER EVIDENTIARY INFORMATION RELATING TO CASE. .. MEDICAL EXAMINATION: IS. IS A FURTHER MEDICAL EXAMINATION NECESSARY?___(If so, steps should be taken to complete examination before the Pre-Trial Conference.) THIS DEFENDANT RESERVES THE RIGHT TO 19. JURY OR NON-JURY JURY A MEDICAL EXAMINATION. . IF JURY. DEPOSIT OF THE JURY FEE MUST BF. MADE BY THE CLOSE OF THE PRE-TRIAL CONFERENCE OR JURY IS WAIVED. IF JURY. CONSIDER SEPARATION OF ISSUES AND THE ORDER OF TRIAL WHEN SOME ISSUES ARE TO BE TRIED BY A JURY AND SOME BY THE COURT' 20. ESTIMATED TIME OF TRIAI5_dayS,______________ 21. PLAINTIFF OFFERS TO TAKE IN FULL SETTLEMENT OF HIS CASE. NL 000039278 * '22 DEFENDANT OFFER: 23. IS THIS C ASF. ONE. FOR MEDIATION WITHIN MEANING OF WAYNFI CIRCUIT COURT RULE *->P NOT A PROBABLE LIABILITY CASE. 24. ATTACH A LIST OF ALL WITNESSES YOU FLAN TO CALL AT THE TRIAL. 25. HAVE YOU READ PARAGRAPHS A-l I (Pink Sheet) ATTACHED TO THIS FORM? YES GARAN, LUCOW, MILLER, LEHMAM, SEWARD & COOPER, P.C. SIGNATURE OF TRIAL ATTORNEY Milton Lucow Attorneys for Defendant, CITY OF DETROIT, ONLY 561 East Jefferson Avenue Detroit, Michigan, 48226 962-5180 NOTE: YOU MUST SEND A COPY OF THIS FORM COMPLETELY FILLED OUT TO THE OPPOSITE PARTY OR PARTIES OF THE PRE-TRIAL NOTICE NO LATER THAN 10 DAYS AFTER RECEIPT. DISCOVERY MUST BE COMPLETED BEFORE THE PRE-TRIAL CONFERENCE. PLEASE NOTIFY THE ASSIGNMENT CLERK IMMEDIATELY OF ANY ATTORNEYS OF RECORD WHOSE NAMES DO NOT APPEAR ON THIS NOTICE. B64 AT THE TIME OF TRIAL, THIS DEFENDANT MAY CALL THE FOLLOWING WITNESSES: 1. Theodore Spencer 2. Verne Hunt 3. Lee D. Scott 4. Michigan Painting Company 5. A & B Painting Company 6. Sam Gibbs 7. $Wayne County Pollution Control Center 8. State of Michigan, Department of Health 9. Detroit Board of Education Records 10. Dr. Neal Levi 11. Roland Evans 12. Free Clinic Records 13. Comprehensive Health Services 14. Plaintiffs' treating physicians, past and present 15. Plaintiffs' medical and hospital records, past and present. 16. This defendant reserves the right to call any and all additional witnesses made necessary to rebut the proofs of the plaintiffs. NL 000039279 i <ATTENTION: DUE TO THE SIZE OF THE NEW PRE-TRIAL NOTICE AND STATEMENT FORM, WE WILL NO LONGER MAIL BLANK FORMS WITH THE NOTICE. RNEYS ARE NOW REQUIRED TO PICK UP BLANK FORMS HE CIRCUIT COURT ASSIGNMENT CLERK'S OFFICE. ^- 10)976 Klexamiw, & S-.avHf ----- IMPORTANT ReceivecJ.-ii'N 1 Um 33^%) PLEASE NOTE NEW RULES PERTAINING TO PRE-TRIAL AND TRIAL: A. The fact that trial counsel is elsewhere engaged or unable to attend will not be grounds for a continu ance of the pre-trial or trial (G.C.R. 114.4). It is imperative, therefore, that backup counsel be available to substitute for regular trial counsel, in the event-of a conflict. ife B. No Discovery proceedings will be permitted after the Pre-Trial conference, except that a physical examin ation before trial may be ordered in the pre-trial conference summary statement. (G.C.R. 301.7). C. Pre-Trial may not be waived. (G.C.R. 301.8). D. Within 10 days after receipt of notice of pre-trial conference, counsel shall exchange lists of all wit nesses to be called at trial (G.C.R. 301.10) No witnesses may be called at trial unless listed, ex cept by leave granted upon a showing of good cause. E. No cause will be adjourned because of inability of an expert witness to be present (G.C.R. 302.7). Therefore, all expert witnesses should be deposed prior to trial--and within the rules provided--to insure the availability of expert testimony at the trial. F. Interrogatories addressed to the existence of, the address of, or identity of witnesses are deemed continuing interrogatories (G.C.R. 309.2). In brief, .once a party has been asked to disclose his witnesses, he must disclose all known witnesses and thereafter disclose any new witness to the opposite party as soon as that witness is known. G. After the Pre-Trial conference counsel for a party may withdraw only with Court approval--and not at all within the 30 day period preceding trial. (G.C.R. 532). H. Pre-Trials may be adjourned only by the Judge--and then only for good cause shown. (Local court Rule 8.4). NL 000039280 STATl OF MICHIGAN covanXfi t :u : c ir c u it c o u r t f o p . t h i: or '^a y u e GLADYS BEASLEY HT AL Plaintiffs, -va- ifo: 74 002312 NO SHC CITY OF O.jiT-oi'i , a Manicionl Corp. and :i 0 INDUSTRIES, INC., a New Jer3ey Corporation, jointly and severally. Defendants. Judge Jo3oph G. Rashid P 19236 TO THE SUBSTITUTION* OF ATTORNEYS. CLERK OF SAID COURT: jj I Please enter oar appearance as Attorneys for tha Defend- ant, '3 I.Ih o u STP.i l ;; , IN*c., a Mew Jersey Corp., stead of Aloxnn '.or, Buchanan T Joavltt. ' in the place and I j I BUCHANAN, QGL'i. AND Jl ii'.S p. C. April 23, 19 VC BY: G. Cartcron Buchanan pfiTTo Attorney for L Industries, Inc. Suite 1707. VO West Big Leaver Road Troy, .Michigan, 3063 . 362-3707 TO: l a p p ou a ;j =.) ic.opro.-?. Attorneys for Iin tiffs ^ Suite J26, J.'hl test Hi* JC'v k Troy, Mich i*/*.?, A-30 i-i JAMAS*'DANIEL Attorney for City of Detroit 10LO City County Building P-troiL. ''.jchi<.i:o.. 48226 1 'LEAS', '' `Tier: the this T-y enter ad our appearance for the shove n.r -cd i. I of Alexander, Buchanan 6 Seavitt j n the place and stead uuc.iia h a h , our;;' a n d j in k s , p .c . t)X:_______________ _ __ ___ ________________________ 0. Car., .t o r Buchanan Pll34o co;.r _ t o _ sy u s t i x u v io h Wq hereby consent to the substitution of Buchanan, Ogn, ami Jinka. F-C. for the Defendant, M N Industries, Inc., a Haw Jersey Cornet a l1 -o in our olaco an-: .*<*. I. April V', lf'V NL 000039281 N 26060.11 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF' I'NE f~\ Notice of no progress ?M-oo23ia-0< gP|s\.fc^ -raL \J Cvr^ i? Attorney for NL. 'IX'rf IwS.TAi X , v. ex cL Data Mailed oj-ivir Dismissal Date o(>- This case has been assigned to Judge Please take notice that the above entitled cause shall be dismissed on the above dismissal date by order of the judge to whom the case is assigned unless by such time: (A) In no contest actions default with praecipe Is filed and a motion for judgment is filed, or (B) The action Is brought to Issue and a trial praecipe Is filed, or (C) The judge extends the time on a showing of good cause. Any such extension shall be for a fixed period of time. NOTICE: If any of the steps 1)9ted In Rule 17.3 have been taken prior to the time of the calling r said "No Progress Calendar'*, the clerk of the Judge shall be notified thereof. In the absence f such notification, an order dismissing the action for "No Progress" shall be entered by the sslgned Judge without regard for any progress In fact made. 7C . CAr'ffftoi'J 321-? | JAMES R. KILLEEN WAYNE COUNTY CLERK ". HibAj HS32 (o T N 26060.12 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, -vs- THE CITY OF DETROIT, a Municipal Corporation and N.L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. ROBERT H. GOLDEN (P14108) Of Counsel Attorney for Plaintiffs J ALVIN R. DAVIDSON (PI 2567) Attorney for Defendant.' No. 74-002312 NO ' ANSWER NOW COMES the City of Detroit, a municipal corporation, by and through its attorneys, Robert Reese, Corporation Counsel, Thomas J. O'Dowd and Alvin R. Davidson, Assistants Corporation Counsel, and answers the complaint of the plaintiffs as follows: GENERAL JURISDICTIONAL AVERMENTS 1. Paragraph 1 is affirmed. 2. Paragraph 2 is affirmed. 3. Paragraph 3 is neither affirmed nor denied by the defendant herein for lack of proofs on which to form an opinion. 4. Paragraph 4 is affirmed. COUNT 1 1. Paragraph 1 is affirmed to the extent that plaintiffs occupied same, but defendants' records show initial occupancy on November 6, 1969. Defendant denies any express or implied warranties inure to the monthly lease. '2" ml 000039284 N 26060.13 2. Paragraph 2 is affirmed. 3. Paragraph 3 is affirmed. 4. Paragraph 4 is affirmed. 5. Paragraph 5 is affirmed to the extent that the business of the co-defendant causes an increase in the amount of lead particles in the air surrounding said co-defendant's business, but the remaining allegations must be denied for lack of knowledge thereof, leaving plaintiffs to their proofs. 6. Paragraph 6 is neither affirmed nor denied, leaving plaintiffs to their proofs. 7. Paragraph 7 is neither affirmed nor denied, leaving plaintiffs to their proofs. 8. Paragraph 8 is neither affirmed nor denied, leaving plaintiffs to their proofs. 9. Paragraph 9 is neither affirmed nor denied, leaving plaintiffs to their proofs. 10. Paragraph 10 is neither affirmed nor denied, leaving plaintiffs to their proofs. 11. Paragraph 11 is denied to the extent the defendant herein is alleged to have contributed to the pollution of the air and atmosphere, but is neither affirmed nor denied relative to the balance of the paragraph, leaving plaintiffs to their proofs. COUNT II 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is denied specifically, as defendant was neither negligent nor in breach of any warranty, express or implied. Defendant answers the sub sections of this paragraph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is affirmed to the extent that the air throughout the City of Detroit is infiltrated by lead and other chemicals from automobile exhausts. Any other meaning implied by the plaintiffs is left to their proofs. -3- NL 000039285 C. Subsection C is neither affirmed nor denied, leaving plaintiffs to their proofs. COUNT III 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraphs is denied. Defendant answers the subsections of this para graph as follows: A. Subsection A is affirmed, but only to the extent of the exterior of the dwellings. B. Subsection B is neither affirmed nor denied, plaintiffs being left to their proofs. .C. Subsection C is neither affirmed nor denied, plaintiffs being left to their proofs. ; D. Subsection D is denied. Defendant City of Detroit lacked the knowledge, capability and jurisdiction to effect the air in and around plaintiffs' dwelling. COUNT IV 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretgfore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical damage. COUNT V ,, 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. -4- NL 000039286 COUNT VI 1. The defendant, City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symtomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VII 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. COUNT VIII 1. The defendant. City of Detroit, incorporates by reference thereto, all of the answers heretofore appearing in this Answer as though fully set out herein. 2. Paragraph 2 is affirmed as to the plaintiff's date of birth, life expec tancy and domicile, but the remaining allegations set out therein are denied. 3. Defendant neither affirms nor denies the symptomotology set out in para graph 3, but denies the allegations of permanent physiological or physical harm. AFFIRMATIVE DEFENSES The defendant herein, the City of Detroit, sets forth the following affirmative defenses to the plaintiffs' Complaint: -5- NL 000039287 1. The elevated blood-lead levels of the plaintiffs' in this cause are variables which constitute ambiguous measurements, and are not evidence, per se, of lead ppisonin'g, but of a condition which lends itself to treatment by chelation therapy. 2. Theft the elevated blood-lead levels of the plaintiffs in this cause were not proximately caused by any negligent actions of the City of Detroit, but by the actions of National Lead Industries, Inc. 3. That the numerous paintings of the structures known as public housing by the City of Detroit was an attempt to make and maintain those structures in a - manner consistent with what is generally known as decent. * 4. That the state of the technology of.paint production open to both the City of Detroit and consumers generally was so primitive until the 1960's that most of the paint sold and purchased exceeded the generally recognized 'safe' limits of lead compounds insisted upon today by Federal regulations. 5. That to hold the City of Detroit liable for the use of such paints when the dangers in those paints of lead base were virtually unknown would be analo gous to strict liability. 6. That the condition of children eating paint chips or chewing paint from some painted surface in public housing was not foreseeable and was not consistent with'the purposes for which the paint was used by the defendant. City of Detroit. 7. That prior to the plaintiffs moving into the building at 4803 E. Nevada, that unit was painted throughout with non-lead or low-lead based paint. 8. That plaintiff, Gladys Beasley, never complained to the building manager about the condition of any painted surface in her home, but the City of Detroit, through an enforcement program initiated by the Department of Health, scraped and removed questionable chipping paint from the interior and exterior of plaintiffs' dwelling beginning in February, 1973. 9. That the plaintiff, Gladys Beasley, knows and knew of her children's, plaintiffs, propensity to put non-food items into their mouths by virtue of her close supervision of said children, but in not stopping said con duct, was negligent by her inaction. The children, in ingesting non-food items were contributing factors to their own illnesses, and thus, contri- butorily negligent. -6- NL 000039288 10. That the detection and enforcement of clean air laws is the duty of the Wayne County Pollution Control Center by statute. Act 306 of P.A. of 1927 (MCLA 327.205 and 206); and that those antipollution laws may be enforced by any citizen of the State of Michigan, Act 127 of P.A. of 1970 (MCLA 691.1202). WHEREFORE, it is prayed that this action be dismissed against the defendant. City of Detroit, and that this Honorable Court grant such other relief as it deems necessary and equitable. DATED: March 6, 1974 Alvin R. Davidson Assistant Corporation Counsel City of Detroit 1010 City-County Building Detroit, Michigan 48226 (313) 224-6943; 224-3423 -7- NL 000039289 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minors. Plaintiffs, -vs- No: 74 002312 NO THE CITY OF DETROIT, a Municipal I Corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and ii II severally, Defendants. ____ __ _ _/ i I j ' j j ! ANSWER TO THE COMPLAINT ON BEHALF OF IT. L. INDUSTRIES. INC., A NEW JERSEY CORPORATION.____________ Now comes N. L. INDUSTRIES, INC., a New Jersey Corporation by ALEXANDER, BUCHANAN & SEAVITT, its Attorneys and in answer to ilaintiffr,1 Complaint rays: GENERAL JURISDICTIONAL AVERMENTS I | 1. Defendant is without sufficient in formation to form an answer or belief to the a 1107ations of said paragraph contained. 2. Defendant admits the. s.-mn on. information and 1 belief. 3. Admitted. 4. Defendant is without sufficient information to form an answer or belief and in further answer avers that it | does not know if Plaintiffs have a cause of action COUNT I. 1. Defend? nt. ip without sufficient information to form an answer or belief. 2. Defendant is without nv.rficiont information to form an anewor or belief. 1- ! I j ; 1 1 1 NL 000039290 N 26060.14 3. Defendant admits that it operates its Master Metal , Division at 4700 E. Nevada, Detroit, Michigan, but is without ; sufficient information to admit or deny the remaining allegations in said paragraph contained. i' 4. Defendant admits that at the Nevada location its conducts a smelter for the recovery of lead and/or the smelting, burning process of materials containing lead but neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to answer because of the broad general statements incorporated in the allegations. ; 5. Defendant denies the .allegations in said paragraph contained, avers that said allegations are not, in fact, true, ' and that tests made periodically will disclose the verification of defendant's answer. In further answer Defendant avers that there are in the area where the Plaintiffs allegedly reside other secondarysmelters of scrap lead being Sitkin Midland, Inc. N. R. bavin & Sons, Inc. which may be the source of the bases of Plaintiffs' complaints. 6. Defendant is without sufficient information to form an answer or belief to the allegations with reference to the residence of the Plaintiffs but denies the remaining allegations in said paragraph contained and avers that said allegations are not, in fact, true. 7. Defendant is without sufficient information to form an answer or belief to the allegations with reference to residence of the Plaintiffs but denies the remaining allegations in said paragraph contained and avers that said allegations are not, in fact, ttue. 8. Defendant denies the allegations in said paragraph contained as applicable to the claims of the Plaintiffs with reference to lead, avers that said allegations are not, in fact, true; admits that complaints have been made and corrected with reference to sulphur content of emissions. -2- NL 000039291 9. Defendant is without sufficient knowledge or information to form an answer or belief to the allegations pertaining to the physical conditions of the Plaintiff, Gladys Beasley but denies that any condition such as alleged was the result of the manufacturing process of this defendant, and avers that tests made by Health authorities and Defendant will substantiate this allegation. 10. Defendant is without knowledge or information sufficient to form an answer or belief to the allegations in said paragraph contained and leaves the Plaintiffs to their proofs. v 11. Defendant is without knowledge or information sufficient to form an answer or belief to the allegations in said paragraph contained and leaves the Plaintiffs to their proofs. AFFIRMATIVE DEFENSES TO: GLADYS BEASLEY Plaintiff PETER DOZORC and ROBERT H GOLDEN Attorneys for Plaintiffs PLEASE TAKE NOTICE that the Defendant will rely upon and prove that the alleged cause of action of the Plaintiffs or any injuries or damages occurring after November 1, 1973 are barred by the Statute of Limitations and Defendant at the appropriate time and place will move to dismiss or strike from the Complaint allegations pertaining to all damages within the said period pursuant to the Michigan General Court Rules. WHEREFORE, Defendant asks Judgment of No Cause of Action together with costs so wrongfully incurred. COUNT II 1. Defendant adopts and incorporates by reference -3- NL 000039292 answers to the allegations of Count I and the Affirmative Defenses incorporated therein. 2. Defendant is without sufficient information to form an answer or belief to the allegations in said paragraph contained and in further answer avers that the allegations are not applicable to this Defendant. COURT III . > *%H'. f'.V' 1. Defendant adopts and incorporates by reference the answers to Counts I and II of Plaintiffs* Complaint. 2. Defendant is without sufficient information to form an answer or belief to the allegations of said paragraph contained and in further answer avers that the allegations are not applicable to this Defendant. COURT IV. , 1. Defendant adopts and incorporates by reference in full, answers to Counts I, II and III of Plaintiffs* Complaint. 2. Defendant denies air pollution by lead freon its activity and avers that the allegations in said paragraph have no application to this Defendant. 3. Defendant denies that it was guilty of any acts of negligence or breach of duties for the reasons hereinbefore set forth but neither admits nor denies the remaining allegations for want of sufficient information to form an answer. COURT V. 1. Defendant adopts and incorporates by reference the answers to Counts I, II, III and IV in their entirety. -4- NL 000039293 ''t 2. Defendant denies that the air in the community in which the Plaintiff allegedly resides was polluted or infiltrated by lead from this Defendant's business activities, avers that the tests of the Health authorities and this Defendant substantiate the bases of this denial but neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to form an answer or belief and are not applicable. 3. Defendant is without sufficient information to form an answer or belief to the allegations of the physical condition of the Plaintiff or other allegations pertaining.to , injuries and denies that' any condition of the Plaintiff :-'i' resulted from negligence or wilful actions, or any breach of duty of this Defendant for the reasons hereinbefore set forth. COUNT VI 1. Defendant adopts and incorporates by reference all of the answers to Counts I, II, III, IV, and V in their entirety. 2. Defendant denies the allegations with reference to the air being polluted by lead from Defendant's smelter and business activity; neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to form an answer or belief except as to those allegations which are not applicable to this Defendant. 3. Defendant has no information sufficient in nature' to form an answer or belief as to the allegations pertaining to injuries but denies that said injuries resulted from any negligence or wilful actions or failures.to act of this Defendant or breach of duty of this Defendant for the reasons hereinbefore set forth. COUNT VII 1. Defendant adopts and incorporates by reference -5NL 000039294 the answers to Counts I through VI as fully set forth therein. 2. Defendant denies the allegations with reference to the air being polluted by lead from Defendant's smelter and business activity; neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to form an answer or belief except as to those . allegations which are not applicable to this Defendant. V. <&' 3. Defendant has no information sufficient in nature to form an answer or belief to the allegations pertaining to injuries but denies that said injuries resulted from any negligence or wilful actions or failure to act of this Defend-; ant or breach of duty of this Defendant for the reasons . hereinbefore set forth. COUNT VIII 1. Defendant adopts and incorporates by reference the answer to Counts I through VII as fully set forth therein. 2. Defendant denies the allegations with reference to | the air being polluted by lead from Defendant's smelter and business activity; neither admits nor denies the remaining allegations in said paragraph contained for want of sufficient information to form an answer or belief except as to those allegations which are not applicable to this Defendant. ' I 3. Defendant has no information sufficient in nature to form an answer or belief as to the allegations pertaining to injuries but deie3 that said injuries resulted from any negligence or wilful actions or failures to act of this Defendant or breach of duty of this Defendant for the reasons hereinbefore set forth. j w h e r e f o r e. Defendant denying Plaintiffs claim of setting forth allegations with reference to exemplary damages ) j ! r>- NL 000039295 respectfully represents to the Court that it is without negligence or fault in this cause and asks Judgment of No Cause of Action together with costs so wrongfully incurred in each of the claims of the respective Plaintiffs. May 20, 1974 ALEXANDER, BUCHANAN & SEAVITT BYj____________________________________________________ G. Cameron Buchanan T11340 Attorney for N. L. Industries, Inc. 2217 First National Building Detroit, Michigan, 48226 965-2310 -7- n l 00039296 ''Ir'jsi'. *> ; 2-o roflw E-ioi STATE OF MICHIGAN CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADYS BEASLEY, fcdiv. n- rvct. friend of Seven Beasley, Brian Beasley, et at. Plo^sn 74-/ Z- ATO CITY OF DETROIT, a Municipal corp., L <4 N. L. INDUSTRIES, INC., a Yew Jersey corp., j/a b,**ndofit SUMMONS ry 3n n-` VAWJi- IN THE NAME OF THE FCOttf OF THE STATE OF MICHIGAN* r. .k. CITY OF DETROIT; City County Building, Detroit (Nam# *f Mr mIw Hi) N. L. INDUSTRIES, INC.: c/0 Corporation Co., Dime Building, Detroit You Aro Haraby Notifiod that a civil action haa boA commenced apainat you, end that if you dotira to dafand th aama, you ora raqwirad to answer or taka such action at may ba parmittad by law with rapard to tha complaint Kara* with aarvad upon you, within 20 days aftor aorvico af thi tummon* and complaint upon you, aveluaivaof tha day af sorvica. M. tP*L jLL d^|, uidflmant by dafaufi will ba fakan opainat yau for tha roliaf damondad in tha complaint. Data: JOSCPH . SULLIVAN, Clark of tha Circuit Court lore. ?, GOLDEN. Of Counsel Mich. 557-7210 TPKon*"7lo7r*" STATE Of MtOUOJkM ) h COUNTY or WAYNE ) Saal of tha Court I ____________________________________________ ,, ------- ----------------- -----------------------------------(Deputy Shari#) that an tha ----------- -------- day af , _. IF-------------------------- ---------------- - et ----------------------------- i - - in tha County *---------- -- I tarvad Sumnwu ond a copy of tha Camplalwf and - - - - - - -- - - In fhl* action upon - -- - - - - - - -------------------- -- haraby eartify and return {piaaa of larrica) known to ba {ana of) tha defendant^) namad lharain. by than ond thara delivariof to feme* of) toid dafw*dant() *o*d wwnini ond copy of obeve namad da tvmente. i. f Dated\1 ' - - ______________________ -...........SMHIPf STATE Of MICHIGAN * tss COUNTY OF WAYNE j Deputy Short# (Ofponent) beinp duly iwnti, depoeee and toy* that ha it a pereen of twitabl* age and dt<ration to earv# prorate, ond that an tho doy of . ,, T9--_____ qt -- - ....................in tha County of ---------------- ---------------, y (plot* of trrvicr) he tarvad o 5ummen and o copy of th# Complaint ond - -------- -------------- ---------------- - - - in thie action upon . . --------------------------------------------- .... ------------- (Ko of Defandent(i) ----------------------- - .. known ro be {one of) rHe defendant*'*/ nomed therein, by then ond there delivering to (eob of) toid defenOnf{) *d rum/non* ond copy oI obore named docum*ni. Subscribed ond twern to before me thi* _ - --_ doy of ... --____-- Notary Public, Woyn* County, Miehrgon My CoffliniuioA expire* ___________ , ------ - Deponent NL 000039297 N 26060.15 i I l 'I STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE GLADY'S BEASLEY, Individually and as Next Friend of STEVEN BEASLEY, BRIAN BEASLEY, DERRICK BEASLEY, WENDELL BEASLEY and MONIQUE BEASLEY, all minora. Plaintiffs, -vs- _-- THE CITY OF DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC., a New Jersey Corporation, jointly and severally. Defendants. ffl b ROBERT H. GOLDEN (P 14108) Of Counsel Attorney for Plaintiffs No. .74-gCdilZ-- NO COMPLAINT f Now come the above named plaintiffs fay their attorney, PETER DOZORC, ROBERT H. GOLDEN, of counsel and complain of the CITY OF ! DETROIT, a Municipal corporation and N. L. INDUSTRIES, INC., a New Jersey corporation, jointly and severally and for their cause of action, say: GENERAL JURISDICTIONAL AVERMENTS i. 1. That all of your plaintiffs are residents of the City of Detroit, County of Wayne, State of Michigan. 2. That the defendant. City of Detroit, is a Municipal corporation located within the County of Wayne, State of Michigan. i 3. That the defendant, N. L. INDUSTRIES, INC., is a New Jersey Icorporation, admitted and authorised to do business in the State of Michigan and jl Jiestablished within the County of V/ayne, State of Michigan. li i| 4. That this cause of action accrued to your plaintiffs within the ivj jj County of V/ayne, State of Michigan. jl PETER DOZORC, E.0., a t t o *n y a t l a w j; 18000 WEST NINE MILE DOAP. SOUTHPIflLO. MICHIGAN **070 999.4600 :i NL 000039298 N 26060.16 PAGE 2 COUNT I 1. That on or about November I, 1570, your plaintiff rented, or otherwise occupied premises known as 4803 Nevada, located in the City of Detroit, County of Vv yne, State of Michigan, from the defendant, and owner of said [property, the CITY OF DETROIT, Faying a monthly rental therefore to the said CITY OF DETROIT, which premises by agreement and design were for use by jplaintiff and her family as a dwelling place and residence and impliedly warranted !by the said defendant as safe for such use. 2. That plaintiff's family on November 1, 1970 and thereafter consisted of her children, the minor plaintiffs herein, which minor plaintiffs born and thereafter born resided in the aforesaid premises from November 1, 1970 or their date of birth, to the present time. 3. That the defendant, N. L. INDUSTRIES, INC., a New Jersey corporation operated a division of its business known as Master Metal Division at 4700 E. Nevada, Detroit, Michigan, which location is approximately 400 feet south west of the residence and dwelling place of all of your plaintiffs, as heretofore iescribed. 4. That defendant, N. D. INDUSTRIES, INC., at its location aforesaid, conducts a smelter for the recovery of lead and or the smelting, burning and processing of ores, materials and goods, which contain lead, including but not limited to the burning or smelting of battery casings for recovery of their sad content. 5. That the process of burning battery casings and cases and the ;ther smelting, burning and processing done by defendant, is. D. INDUSTRIES, j INC., caused, causes and continues to cause the atmosphere in and around 4800 !i Z. Nevada, to become burdened with an increased and abnormal amount of lead, Specifically let into the air in the neighborhood of defendant's plant, by the plant j i i i ; fenerations oz the defendants and its business operations, which air envelopes ii' blaintiff's residence. ii G. That your plaintiff's have lived in and around and within 400 feet fef defendant's plant for in excas3 of three years, breathing the air placed there by j j} PKTEH 3DOZOHO. P.C., a t t o r n ., a t l a w 1 ij I4COO WC9T NINE MILE ROAD . SOUTHnCUO, MICHIGAN 48075 933-4800 | NL 000039299 PA GE 3 | nature In its pure state free of lead particles or chemicals and foaled by defendant's manufacturing processes so as to contain lead in amounts greatly increased from what amounts if lead could or would be expected to be contained within the air in its natural and unaltered state in the absence of defendant's manufacturing process, and have been injured thereby as more fully set out here- 7. That not only has this defendant caused the air in and out of its i I plant and in and around plaintiff's residence to be fouled and lead burdened, but has continually and repeatedly refused or neglected to so refine its manufacturing process to eliminate the danger to residents in the area and of persons including plaintiff's breathing air containing various chemicals, and metals including lead, and, fully realizing the dangers of these business enterprise to inhabitants of the b area, have continued their smelting and burning and pollution of the atmosphere and breathable air in and around plaintiff's residence,, fn) 8. That on several occassions' defendant has been cited or complained against, notified or requested to alter, change amend, safeguard, or discontinue its operations in order to prevent the pollution of the air around its plant and to prevent pollution of the air plaintiff's breath, which complaints, requests orders, etc. have gone largely ignored and without remedy, further endangering the life of plaintiffs and continuing to foul and contaminate the air breathed, now, in the past, and during the pendancy of this action, by planitiffs and others to their daigs jjund injury. ! 9. That your plaintiff, GLADYS BEASLE Y, has for several months ( jjindured the pain, suffering, vomiting, diarrhea and general irritability of her |j jlchildren, the minor plaintiffs herein, the above symptoms the result ox lead ijootsinning, caused by and or contributed to by the pollution of the air in and i| ijanout their home, as a result of the manufacturing and smelting process of the ..defendant, N. L. INDUS TALES, ESC. 10. That your plaintiff, GLADYS 3EASLLY, has bean compelled to lie eh medical attention for all of her children, the minor plaintiffs herein, and JPBTEH jDOZOHO, F.C.. a t t o bn c t a ? l a w eooo WEST NINE MILE HOAD SOUTHriecO. MICHIGAN 40073 353-4SOO ML 000039300 PAGE 4 baa been compelled, is being compelled and will be compelled for the rest of her life, and/or the lives of her children, to pay and incur great sums of naoney in and about the treatment, care, and alleviation of the complaints of her children, j the minor plaintiffs herein. i j | 11. That your plaintiff has witnessed and endured the suffering of j her children and will be called upon in the future to witness their continued pain, i suffering, and debilitation, lessening of intelligent quotent and in general will bear witness to the inability of her children to attain a normal mental and physical ability and life pattern and style, all taken from them by the actions and failures of these defendants la their pollution of the atmosphere and virtual injection of the atmosphere In and about her home with lead and lead derivitives and lead bearing chemicals. P I COUNT II 1. That your plaintiff, GLADYS BEASLEY, incorporates by reference thereto, all of the allegations heretofore appearing in this Complaint as though fully set out herein. 2. That the defendant, CITY OF DETROIT, has negligently provided the plaintiffs with an unsafe, defective and dangerous building in which to live, for a payment of rent, and further that-the said defendant, CITY OF DETROIT, knew or should have known of the defective and unsafe condition of the residence provided by it to these plaintTfs, for example: A. TJaat the building and premises and/or surrounding ij j buildings and/or premises also owned by this defendant j had covering them several coats of lead based paint. I B. Hi at i;e air in and around the premises was infiltrated | with lead and other chemicals. j il C. That all surfaces, interior and exterior were covered and j I j; continued to be covered with lead particles settled and sets'ir i; out of the air. !i ! And that the existance of lead and in and upon the interior and exterior building, i ! PETER DOZORO, at t o h n iy at l aw j teooo WEST NINE Mice ROAb. SOUTH#lLD. MICHIGAN 4(1075 . 3B5-4500 NU 000039301 PAGE 5 walls, surface and breathable air constituted a lethal health hazard to plaintiff and the minor children plaintiffs, which danger this defendant failed to in any way point out, warn of, or reduce, 'inhibit, discontinue or abate, the existance of which and which failure and negligent acts were a breach of said defendant's implied warranty of a safe premises in which to live, resulting in the acute lead ! jI poisoning of the minor plaintiffs and the pain,anguish, disappointment and expense of their mother and to plaintiff. COUNT III 1. That all of your plaintiffs incorporate by reference thereto all of the allegations herein, appearing in this complaint, as though fully set out herein! 2. That in renting the aforesaid premises, to your plaintiff and her children, the minor plaintiffs herein, the defendant, CITY OF DETROIT, did P m impliedly warrant that the premises were safe to be inhabited as a residence and that residing there would not cause, in itself, injury to the plaintiffs, which warranties the defendant CITY OF DETROIT, did breach in that your plaintiff, relying upon the safety of said premises did reside there with her family, all of p which children did contract acute lead poisoning as a direct result of their having resided in said premises, defendant breaching its warranty, for example: i A. That the building and premises and/or surrounding buildings and/or premises also owned by this defendant had covering them several coats of lead based paint. 3. That the air m and around the premises was infiltrated *T. i with lead and otner chemicals. C. That all surfaces, interior and exterior were covered and t continued to oe covered with lead oarticles settled and ! I settling out of the air. D. That the defendant, knew or should have known of the dangers of lead poisoning attendant in residing as tenants of defendant and yet the said defendant, CITY OF DETROIT, failed in. any way to clean up the air in and around said PEJTEH DOZOHO, P.O., a t t o r n e y a t t>w #O0O WEST NINE MILE ROAD 30UTHVIEL0. MICHIGAN 43079 995-4*00 ; NL 000039302 PAGE 3 premises, or to fill said premises of lead and lead dost. COUNT IV 1. That co-plaintiff, GLADYS BEASLEY, as next friend of the minor plaintiff BRIAN BEASLEY, incorporates by reference thereto ail of the allegations heretofore appearing in this complaint as though fully set out herein. 2. That BRIAN BEASLEY, was born on May 26, 1938, and has resided since November 1, 1970 at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, around, upon and on which air polluted by lead, infiltrated from defendant's smelter and business activity, was deposited, did on November 1, 1970 have a normal life expectantcy pursuant to M. C. L.A. 500.834 of 66.80 years, which life expectantcy and quality of life has been materially n altered and impaired as a result of acute lead poisoning, contracted as a result of y? the negligence, actions, and failures to act of the defendants herein, jointly and severally, as well as by breach of warranties of the defendant, CITY OF DETROIT, 3. That your plaintiff has further suffered extreme distress, indtdiig head ache pain, pain, vomiting, stomach cramps, acute blood lead levels, lead deposition in his bones and tissues, irritability, dtmenished responsiveness and intelligent quotient and will continue to suffer such symptoms and such poisoning i for the rest of his life, being in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendaht. i COUNT V 1. That co-plaintiff, GLADYS BEASLEY, as next friend of the minor plaintiff, DERRICK BEASLEY, incorporates by reference thereto, all of the feilegations heretofore appearing in this complaint as though fully set out herein. 2. That DERRICK BEASLEY', was born July 13, 1935, and has resided since November 1, 1979, at the aforesaid residence owned by the defendant^ IciTY OF DETROIT, and in, around, upon and on which air polluted by lead, iii infiltrated from defendant's smelter and business activity, was deposited, did on PETER DOZOSO, P.C^ ArrouNtr a t l a w teooo w e s t min e mil e r o a d - Mic h ig a n a *o 79 sss.4oo NL 000039303 PAGE 7 November 1, 1970, have a normal Ufa expectantcy pursuant to C. L.A. 3500.334 of 64.19 years, which life expectantcy and quality of life has been materially altered and impaired as a result of acute lead poisoning, contracted as a result of | the negligence, actions and failures to act of the defendants herein, jointly and } i[ severally, as wall as by breach of warranties of the defendant. Cl LY OF DETROIT. 3. That your plaintiff has further suffered extreme distress, including head ache, pain, vomiting stomach cramps, acute blood lead levels, lead deposition in his bones and tissues, irritability, diminished responsiveness I ] i and intelligent quotient and will continue to suffer such symptoms and such poison ing for the rest of his life, being in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendants. COUNT VI 1. That co-plaintiff, GLADYS BEASLEY, as next friend of the minor plaintiff, WENDELL BEASLEY, incorporates by reference thereto, all of the allegations heretofore appearing in this complaint as though fully set out herein. 2. That WENDELL BEASLEY, was born September 27, 1960, and has resided since November 1, 1970, at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, around, upon and'On which air polluted by lead, infiltrated from defendant'3 smelter and business activity, was deposited, did on November 1, 1370, have a normal life expectantcy pursuant to M. C.L.A. i ! 5500. 834 of 59. 53 years, which life expectantcy and quality of life has been j materially altered and impaired as a result of acute lead poisoning, contracted as | a result of the negligence, actions and failures to act of the defendants herein, jjointly and severally, as well as by breach of warranties of the defendant, CITY |joF DETROIT. i |i 3. i hat your plaintiff has further suffered extreme distress, ii ;l ii'.nclading head ache, pain, v omitmg, stomach cramps, acute blood lead levels, i- ii lead deposition in his bones and tissues, 'rritability, dimenished responsiveness jand intelligent quot.ent and uvill continue to suffer such symptoms and such PETER IX5250RC, P.C., a t t o r n e y a t l a w itooc WEST NINE MILE ftOAS SOUTHFIILO, MICHIGAN 48073 Se3-*80O NL 000039304 PAGE 8 ; poisoning for the rest of his life, being in constant need of medical and other care; all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendants. j J j COUNT VII i i 1. That co-plaintiff, GLADYS BEASLEY, as next friend of the minor plaintiff, MONIQUE BEASLEY, incorporates by reference thereto, all of the allegations heretofore appearing in this complaint as though fully set out herein. 2. That MONIQUE BEASLEY, was born February 1, 1971, and has resided since February 1, 1971, at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, upon, around, and on whicb air polluted by lead, infiltrated from defendant's smelter and business activity, was deposited, did on February 1, 1971, have a normal life expectantcy pursuant to M.C.L.A. 5500. 834 of 83.30 years, which life expectantcy and quality of life has been materially altered and impaired as a resultuof acute lead poisoning, contracted as a result of the negligence, actions and failures to act of the defendants herein, jointly and severally, a3 well as by breach of warranties of the defendant, CITY OF DETROIT. 3. That your plaint if has further suffered extreme distress, [including head ache, pain, vomiting, stomach cramps, acute blood lead levels, ftaad deposition in her bones and tissues, irritability, diminished responsiveness |l and intelligent quotient and. will continue to suffer such symptoms and such `poisoning for the rest o: her life, being in constant need of medical and other care, | 'pH as a result of the negligent and wilful actions of the iafendants herein, and ji r breaches of duty of said defendants. Ij COUNT VIII j ji j 1. Thai your co-plaintiff, GLADYS BEASLEY', as next friend of the j jfr. .nor plaintiff, STEVEN BEASLEY', incorporates by reference thereto all of the Sal'.e -.ations heretofore .appearing in this complaint as though fully set put herein. ji ji 2. That STEVEN BEASLEY', was born June 22, 1933, and has FETKK SOZOBO, P.O.. a t t o b n iy a t l a w 1*000 WEST NINJ MILE ROAD - SOUTHFULO. MICHIGAN **070 393-4*00 i 1 NL 000039305 PAGE 9 resided since November 1, 1970, at the aforesaid residence owned by the defendant, CITY OF DETROIT, and in, upon, around, and on which air polluted by lead, infiltrated from defendant's smelter and business activity was deposited, did on November 1, 1970 have a normal life expectantcy pursuant to M. C.L.A. 1500.334 of 32.35 years, which life expectantcy and quality of life has been materially altered and impaired as a result of acute lead poisoning, contracted as a result of the negligence, actions and failures of action of the defendants herein, jointly and severally, as well as by breach of warranties of the defendant, CITY OF DETROIT. 3. That your plaintiff ha3 further suffered extreme distress, j including head ache, pain, vomiting, stomach cramps, acute blood lead levels, lead deposition in his bones and tissues, irritability, diminished respons iveness and intelligent quotient and will continue to suffer such symptoms and such, poisoning for the rest of his life, being 'in constant need of medical and other care, all as a result of the negligent and wilful actions of the defendants herein, and breaches of duty of said defendants. WHEREFORE plaintiff, GLADYS BEASLYE, prays judgment for plaintiff and against defendants, jointly and severally, in the sum of Five Million land No/100 (35, 000, 000.00> Dollars, as compensatory and exemplary damages, oi J in such other sums as a court or jury unon a trial of this cause, shall deem just, II ji jjfalr and equitable, plus costs, interest and attorneys lees. ii !l WHEREFORE your plaintiff, GLADYS BEASLEY', as next friend of il i it. "the minor olaintiffs herein, prays judgm e::t for said minor ola intiffs in the sum of j ji ' I lipiva Million and No/100 (-35, 000, 000. 00> Dollars, as compensatory and exemplary; il i ^damages, each, or in such other sum as a court or jury shall deem just, fair and ; !i equitable, plus cost3, interest and attorneys fees. IDERT H. O r.JDEN Of Counsel Attorney for Plaintiffs 17220 V/. 12 2.Me Road, Suite 103 Southfield, M.chlgan 43075 577-7210 PETER DOZOHC, P.C., a t t o r n e y a t l a w 16000 WIST NINE MILK ROAD - SOUTHFIELD. MICHIGAN 49075.- 353-4900 NL 000039306 PAGE 10 DEMAND FOR TELAL 3Y JURY Now come the above entitled plaintiffs, by their Of Counsel Attorney, ROBERT H. GOLDEN, and hereby demand a trial by jury of all matters j and things contained herein. ROBERT H. GOLDEN Of Counsel Attorney for Plaintiffs 17220 West 12 Mile Road, Suite 103 Southfield, Michigan 43075 557-7210 PLo P I PETER ROZORO. P.O., a t t o w n ev a t l a w i 6000 wear n in e mil e r o a o . s o u t h f ie l d . mic h io an a *o 73 s9.*eoo NL 000039307