Appeals court splits up Orange benzene suits

By Steve Korris | Jun 19, 2008

Justice McKeithen

Justices of the 9th District appeals court swiftly sliced up two Orange County benzene suits and shipped the pieces all over Texas.

On an accelerated appeal they ruled June 12 that District Judge Patrick Clark should have granted defense motions to transfer venue.

Chief Justice Steve McKeithen wrote that Clark "erred in concluding that plaintiffs independently established venue in Orange County."

Justices Hollis Horton and Charles Kreger agreed.

Lance Lubel and Daryl Moore filed the suits, with six plaintiffs in each. One suit named 100 defendants and the other named 43.

Plaintiffs claimed injuries from exposure to toxic and carcinogenic chemicals including benzene, naphtha, toluene and xylene.

Among the defendants, Lubel singled out DuPont for venue purposes, claiming it maintained a principal office in Orange County.

DuPont didn't move to transfer, but other defendants did.

Lubel responded that venue belonged there for all defendants because all or a substantial part of events giving rise to the action occurred there.

He moved to sever each claim for trial, after completion of consolidated discovery.

Clark granted Lubel's motion and denied all transfer motions.

Defendants filed an accelerated appeal Feb. 13.

Decision followed in four months, in favor of defendants.

McKeithen wrote that although plaintiffs contended on appeal that all claims arose out of the same occurrences, they didn't allege that in the original petition.

He wrote that although they contended on appeal that cumulative exposure caused indivisible injuries, they didn't support the allegation or put it in the original petition.

They didn't demonstrate that their claims against DuPont were part of the same occurrences either, he wrote.

In the suit with 100 defendants, the justices transferred claims against CNA Holdings and three Celanese companies from Orange County to Dallas County.

They sent claims against 3M to Travis County.

They sent claims against Conoco Phillips, Shell Chemical, Shell Oil, Houston Refining, El Paso Corporation and three El Paso subsidiaries to Harris County.

In the other suit they transferred the same defendants to Harris County, without the El Paso group.

In both suits they sent Berryman Products to Tarrant County and Safety-Kleen Systems to Collin County.

For 18 defendants who appealed in one suit and seven in the other, McKeithen declared the record insufficient to establish a county of proper venue.

McKeithen wrote that Clark might ask those defendants for further venue proof, but he made sure Clark wouldn't keep any of them in his court.

"We do not imply that evidence shall be re-opened for the plaintiffs to produce further evidence to attempt to independently establish venue in Orange County," he wrote.

Plaintiffs suing 100 defendants are Jack and Glenda Loftin, Jerry and Shirley Dowdy, Leo and Beatrice Sandoval, Larry Cameron, Gerald and Deborah Diaz and Kay Morris.

Plaintiffs suing 43 defendants are Pawel and Nina Baran, Elizabeth Good, John and Carol Barker, Michael and Jeannette Rowell, Roger and Linda Jackson and Raymond Fisher II.

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