Arkansas judge denies defense motion for summary judgment in toxic tort case

Michelle Massey, East Texas Bureau Aug. 18, 2008, 8:00am

TEXARKANA, Ark. � Defendants in a toxic tort suit didn't think the plaintiff proved he was injured by the benzene products they make, but a federal judge in Arkansas disagreed and denied the defendants' motions for summary judgment.

Under the "sophisticated user" doctrine and the learned intermediary doctrine, U.S. District Judge Harry F. Barnes issued an opinion denying an argument that Cooper Tire and Rubber Company should be responsible for the hazards caused by the benzene in its is rubber solvents.

The sophisticated user doctrine says if a user is already aware of the dangerous of a product, then a lack of warning is not the proximate cause of injury.

The learned intermediary doctrine states that the supplier is not absolved of a duty to warn users if the intermediary knew that the product was dangerous.

Arnold W. Russell and Pamela Russell filed the toxic tort suit against various Cooper Tires chemical suppliers, including Ashland Inc. and Union Oil Company of California on Aug. 6, 2004, in the Texarkana Division of the Western District of Arkansas.

Ashland and UNOCAL filed a motion for summary judgment, arguing that Russell's claims fail because "there is no evidence that Mr. Russell himself actually worked with or was exposed to benzene-containing product manufactured, distributed, and/or sold" by Ashland or UNOCAL.

Judge Barnes disagreed with the arguments.

According to court documents, Russell worked for Cooper Tire plant in Texarkana, Ark., from 1977 to 2002, as a tire builder and millwright. During that time, Russell used rubber solvent containing benzene, which the workers referred to as "Benny."

Russell's suit states that Benny was kept in an open bucket, which was refilled two or three times a day. He used the solvent to apply ply and beads in the tire building process, remove wrinkle tread, wash parts, clean tools and clean his hands.

Russell argues that his workplace exposures caused acute myelogenous leukemia (AML). He was diagnosed in 2002 and underwent treatment at the University of Texas M.D. Anderson Center in Houston. Currently, the leukemia is in remission, court papers say.

In a memorandum opinion and order released Aug. 8, Judge Barnes wrote that Russell was not educated about the dangers of benzene and that it would be inappropriate to give defendants immunity based on Cooper Tire's knowledge of the dangers associated with benzene.

Cooper Tire is not a party to the lawsuit.

A jury trial is scheduled for Aug. 18 in Texarkana.

The plaintiffs are represented by attorneys Patrick Haggerty and Thomas K. Neill of the law firm of Gray, Ritter, and Graham, P.C. located in St. Louis, Mo., and co-counsel Carl Bush of the Bush Law Firm located in Fort Smith, Ark.

Case No: 4:04cv4116

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