IN THE UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ) ) ) ) ) ) ) ) ) ) )

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1 IN THE UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LINDA WHITEHEAD, et al. v. Plaintiffs, BAXTER HEALTHCARE CORPORATION, PRC-DESOTO INTERNATIONAL, INC., et al., Defendants. Cause No. 4:08-cv-421 JURY TRIAL DEMANDED DEFENDANT PRC-DESOTO INTERNATIONAL, INC. S MOTION FOR SUMMARY JUDGMENT COMES NOW defendant PRC-DeSoto International, Inc. ( PRC-DeSoto, by and through its attorneys, Sandberg Phoenix & von Gontard P.C. and Mendes & Mount, LLP, pursuant to Federal Rule of Civil Procedure 56(b, and for its Motion for Summary Judgment, states as follows: 1. In June 2006, plaintiffs filed a nine-count Complaint against numerous defendants in this case, including PRC-DeSoto, alleging various theories of recovery arising from decedent Jackie Whitehead s alleged exposure to various benzene-containing chemical compounds and/or non consumer benzene-containing products. 1, 2 [Doc. #1]. 2. The most recent version of the Complaint constitutes plaintiffs fourth attempt to comply with this Court s Orders dated July 24, 2008 and March 17, 2009, which required plaintiff to provide more detailed information regarding Mr. Whitehead s alleged exposure to defendants products. [Doc. ##72, 136]. 1 To the extent they are not already included in the record, all pleadings, discovery, exhibits, and affidavits relied on by PRC-DeSoto in support of its Motion for Summary Judgment are attached to its Statement of Uncontroverted Material Facts. 2 This case was removed from Missouri state court by defendant Baxter Healthcare Corporation, with defedants consent, on June 2, \1

2 3. After multiple failed attempts to correct the deficiencies in their original Complaint, plaintiffs were ultimately allowed additional time, up to and including April 13, 2009, to discover evidence to support their claim Mr. Whitehead in fact worked with or around the defendants products, and amend their Complaint accordingly. [Doc. #136]. 4. Upon completion of that discovery, plaintiffs filed their current Fourth Amended Complaint, sounding in strict liability and negligence, which once again alleges PRC-DeSoto, manufactured and sold certain benzene-containing chemical compounds, and that Mr. Whitehead was exposed to those compounds by direct fluid-to-skin contact and/or inhalation while working for McDonnell Douglas and Boeing in Building #27 and Building #2, Department 166 from 1964 to [Doc. #141]. 5. Plaintiffs now contend Mr. Whitehead was exposed to the following specific compounds, allegedly manufactured or sold by PRC-DeSoto: Polyurethane, Desoclean, Stoddard solvent (a/k/a White spirit, Mineral spirits, and/or Petroleum distillate, Toluene, Xylene, Tectyl, PR-1775, and PR [Doc. #141 at 5]. 6. Missouri law requires a plaintiff to establish a causal connection between defendant s conduct and the plaintiff s resulting injury in both a negligence and strict liability claim. Chism v. W.R. Grace & Company, 159 F.3d 988, 991 (8 th Cir To establish the necessary causal connection, a plaintiff must prove both causation in fact ( but for causation and proximate causation. Id. (citing Paull v. Shop N Save Warehouse Foods, Inc., 890 S.W.2d 401, 403 (Mo. App In a wrongful death case based on chemical exposure, Missouri law requires the plaintiff to establish that each defendant s products directly contributed to the death. Kraus v. Celotex Corp., 925 F. Supp. 646, 651 (E.D. Mo The directly contributed standard requires evidence the product of each defendant sought to be held liable was a substantial factor in causing the harm. Hagen v. Celotex Corp., 816 S.W.2d 667, 670 (Mo \1 2

3 Substantial factor means the manufacturer s conduct had such an effect that reasonable people would regard it as the cause of the harm. Ray v. Upjohn Co., 851 S.W.2d 646, 654 (Mo. App If a plaintiff can only establish a defendant s product might have contributed to plaintiff s death, plaintiff s cause of action fails. Wollen v. DePaul Health Center, 828 S.W.2d 681, 683 (Mo In this case, plaintiffs cannot establish this causal connection because there is no evidence that Jackie Whitehead worked with or around, or was exposed to, a product manufactured, distributed or sold by PRC-DeSoto. Rather, the pertinent evidence before this Court is as follows: (a Mr. Whitehead was unable to testify that he worked with or around any products manufactured or sold by PRC-DeSoto. (See, Defendant PRC- DeSoto s Statement of Uncontroverted Materials Facts at 6, attached to Defendant PRC-DeSoto s Memorandum of Law in Support of its Motion for Summary Judgment as Exhibit A. (b Plaintiffs deposed several of Mr. Whitehead s co-workers, none of whom were able to testify Mr. Whitehead was exposed to any products manufactured or sold by PRC-DeSoto. (See, Exhibit A at 7. (c Plaintiffs recently produced affidavits from additional co-workers of Mr. Whitehead, but, again, these co-workers were unable to state that Mr. Whitehead was exposed to any PRC-DeSoto products. (See, Exhibit A at 8. (d Plaintiffs discovery responses do not identify any sources of evidence to support their claim Mr. Whitehead worked with or around PRC-DeSoto products. (See, Exhibit A at \1 3

4 (e Documents obtained from Mr. Whitehead s former employers, as explained in affidavits provided by those companies representatives, do not establish or even suggest that Mr. Whitehead worked with or around any PRC-DeSoto products. (See, Exhibit A at 10. (f The affidavits from Mr. Whitehead s former employers make clear that the documents do not establish or even suggest that PRC-DeSoto products were used in the two buildings in which he worked. (See, Exhibit A at Furthermore, PRC-DeSoto did not manufacture or sell the products allegedly used by Mr. Whitehead, as described during his depositions and referenced in documents produced by his employers: (a Of the chemicals alleged by plaintiffs against PRC-DeSoto, only Desoclean, PR-1775 and PR-2001 are PRC-DeSoto Products. (See, Exhibit A at 12. (b Mr. Whitehead did not use any chemicals, liquids or gels at work after (See, Exhibit A at 4-5. (c According to documents produced by them, Desoclean 45 was first purchased by Mr. Whitehead s employers in 1994, two years after he stopped using chemicals, liquids or gels at work. (See, Exhibit A at 13. (d PR-1775 B is a sealant, not a solvent, coolant or oil, like the products Mr. Whitehead claimed to have worked with during his career. (See, Exhibit A at 14. (e PR-2001 was not put on the market by PRC-DeSoto until 1999, well after the time period of Mr. Whitehead s alleged exposure and employment. (See, Exhibit A at \1 4

5 10. Finally, PRC-DeSoto does not have any knowledge, documents or information to establish that Mr. Whitehead worked with or around any of its products at any time. (See, Exhibit A at There being no genuine issue as to these material facts, defendant PRC-DeSoto is entitled to summary judgment as a matter of law because plaintiffs cannot establish an essential, central element of their cause of action, that Mr. Whitehead was exposed to any products manufactured or distributed by it. 12. In further support of this Motion, PRC-DeSoto files herewith, and incorporates herein by reference, its Memorandum of Law with its Statement of Uncontroverted Material Facts attached thereto as Exhibit A. WHEREFORE, defendant PRC-DeSoto respectfully requests that Summary Judgment be entered in its favor and against plaintiffs, that costs be taxed against plaintiffs, and for any other relief that this Court deems just and proper \1 5

6 SANDBERG, PHOENIX & von GONTARD, P.C. By: /s/ Todd C. Stanton Reed W. Sugg, #4495 Todd C. Stanton, #98641 One City Centre, 15 th Floor St. Louis, MO (Fax - and - MENDES & MOUNT, LLP Warren M. Williams 445 So. Figueroa Street, 38 th Floor Los Angeles, CA (Fax Warren.Williams@mendes.com Attorneys for Defendant PRC-DeSoto International, Inc \1 6

7 Certificate of Service I hereby certify that on this 29 th day of September, 2009, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court s electronic filing system upon the following: J. Mark Kell Lampkin, Kell, Fagras, Linson & Custer 5770 Mexico Road St. Peters, MO Jmkell4700@yahoo.com Damon J. Chargois Kirk A. Chargois Carlos A. Fernandez Che D. Williamson Chargois & Herron, LLP 2201 Timberloch Place, Ste. 110 The Woodlands, TX damon@cmhllp.com che@cmhllp.com carlos@cmhllp.com kirk@cmhllp.com Attorneys for Plaintiffs Jackie E. Whitehead, Linda A. Whitehead Maureen A. McGlynn Michael C. Pagan McGlynn & Luther 500 North Broadway, Ste St. Louis, MO mam@mcglynnluther.com mcp@mcglynnluther.com Attorney for Ashland, Inc., Chemcentral Corporation, Chemcentral Midwest Corporation, Univar U.S.A., Inc. Larry J. Chilton Chilton, Yambert, Porter & Young 150 South Wacker Drive, Ste Chicago, IL lchilton@cypylaw.com Attorney for Ashland, Inc., Chemcentral Corporation, Chemcentral Midwest Corporation, Univar U.S.A., Inc. Bryan Hopkins Joseph A. Kilpatrick Husch & Eppenberger, LLC 190 Carondelet, Suite 600 St. Louis, MO bryan.hopkins@huschblackwell.com joekilpatrick@huschblackwell.com and Tricia N. Wisenbaker Macaluso Alan Lawrence Fogel, Jr. Fulbright & Jaworski LLP 2200 Ross Avenue, Suite 2800 Dallas, TX lfogel@fulbright.com tmacaluso@fulbright.com Attorneys for Baxter Healthcare Corporation Jeffery T. Bash Matthew J. Morris Heyl, Royster, Voelker & Allen 105 West Vandalia Street, Ste. 100 Edwardsville, IL jbash@hrva.com mmorris@hrva.com Attorneys for Radiator Specialty Company /s/ Todd C. Stanton \1 7