Document 6R7OO8LEBVZZBK3vNrkpqo03R

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION Etta W. Wallace, etc., Plaintiff, v. Chrysler Plastic Products Corp., et al. , Defendants. ) Case No. C84-7864 ) ) [Hon. Nicholas J. Walinski] ) ) REPLY BRIEF IN SUPPORT OF ) NOTION FOR RECONSIDERATION ) ) ) ) 880 ltifi On January 22, 1987, the Court ordered that this action be remanded to state court for lack of diversity jurisdiction. The order was premised on two erroneous assumptions. The first was that this action and its companion action, Dendinger v. Chrysler Plastic Products Corp., Case No. C84-7854, were consolidated for purposes of discovery and trial. The second was that this action, like Dendinger, involved non-diverse parties. Neither assumption is correct, however. The cases were consolidated only for the purpose of discovery, see Pretrial Order dated April 14, 1986 (Exhibit A). Most importantly, however, plaintiff in this action is a Florida resident (unlike Mrs. Dendinger, who is an Ohio resident) and therefore complete diversity existed between plaintiff and defendants (see Exhibit 2 to plaintiff's Memorandum in Opposition, this Exhibit ^eing plaintiff's amended complaint filed in state court after remand. where plaintiff herself sets forth her current residence as being in Florida). For these reasons, defendants on January 29, 1987 filed a motion for reconsideration. Plaintiff on February 4, 1987 served a memorandum of law in opposition. This reply brief responds to the arguments advanced in plaintiff's opposing memorandum. Plaintiff states two arguments: 1) the Court once it has remanded the case, no longer has jurisdiction to consider defendants' motion, and 2) there no longer exists diversity between plaintiff and defendants because plaintiff has consolidated her lawsuit with the Dendinger lawsuit. Neither argument is dispositive, however. First, the case cited by plaintiff in support of her argument that this Court has no jurisdiction to consider its remand order, Boone Coal & Timber Co., v, Polan, 787 F.2d 1056 (6th Cir. 1986), is not applicable. Boone Coal addressed a remand to state court of a bankruptcy matter pursuant to 28 U.S.C. 1452, which statute involves removal of claims related to bankruptcy cases. This present action in no way involves a bankruptcy matter, and thus the cited authority is inapposite. Second, to argue that this Court cannot reconsider its own order once that order is issued is preposterous. This court always has jurisdiction to consider whether it has jurisdiction over a particular matter. It should be noted that nowhere does 2 URL 07879 URL 01880 plaintiff address or contest the central point of defendants* motion for reconsideration -- that complete diversity does exist in this case, and the Court improperly remanded based upon a mistaken assumption that, like the Dendinger case, there was no complete diversity between the parties. Since there does exist diversity between the parties, the Court has subject matter jurisdiction over the controversy, the remand in the case was improper, and therefore this error may and should be rectified. Third, the Court should note that, although this case and the Dendinger case were factually similar, they were consolidated only for purposes of discovery. At no time in this particular case was there a motion by plaintiff to remand. There was no hearing held prior to the remand in this case, nor was notice given that the court would sue sponte order the case remanded. In light of this lack of notice and hearing, in light of the fact that the record clearly and unambiguously establishes that diversity jurisdiction exists in this case and that the action was properly removed, and in light of the fact that defendants are statutorily proscribed from appealing the order remanding this case to state court pursuant to 28 U.S.C. 1447 (d), defendants have been denied their statutory right to federal court jurisdiction over this case without the application of due process of law. As such, the court's actions irt*remanding without notice and hearing unconstitutionally deprived defendants 3- of their right to a federal forum, and that order must therefore be reconsidered and vacated. Fourth, although plaintiff argues that the consolidation and amendment of her action with that of Dendinqer in state court destroys any diversity which otherwise might have existed,, and she attaches exhibits which purport to attest to the fact that the state court granted her motion to consolidate and amend, this argument must fail primarily because it is disin genuous,, The two actions were brought separately by plaintiff's counsel originally in state court, and they continued as separate, actions when removed to this Court. Plaintiff's consolidation is clearly a subterfuge intended to destroy diversity in a desperate attempt to preserve the outcome created by the mistaken action of this court in remanding this properly removed and properly diverse action. The separate and individual nature of the two actions has not changed, however. This last point is in fact the basis for defendants having filed a petition for the removal of the Wallace and Dendinqer consolidated action from the Erie Court of Common Pleas to this court pursuant to 28 U.S.C. 1441(c) on this date. A secondary reason why plaintiff's argument must fail is that the facts which support it cannot possibly be true. Plaintiff's motion to consolidate which was filed in the state court was served on January 26, 1987 (Exhibit B). Plaintiff's 4 URL 07881 URL 07882 motion for leave to amend was filed on February 3, along with a proposed order (Exhibit C). The Erie County Local Rules provide that the parties are given fourteen days to respond to any motion (Exhibit D). However, the copy of the purported order attached to plaintiff's brief in opposition filed in this case was stamped February 4, 1987, less than fourteen days after service of both motions. Furthermore, defendants have never received a copy of any order of the Erie County Court of Common Pleas granting plaintiff's motion. It cannot be presumed that the Erie County Court violated its own Rules of Procedure, nor can it be presumed that plaintiff's counsel either unethically or innocently received such an order in time to then draft his brief in opposi tion in this Court, attach the order as an exhibit and mail it for service and filing before defendants were ever served with the order. Thus, this Court must conclude, as defendants have, that the purported consolidation order is bogus. Until plaintiff produces a certified copy of this order, and explains how her counsel came to be in possession of it at least five days before defendants, this court should disregard the exhibits attached to plaintiff's brief in opposition. For the foregoing reasons, these defendants renew their request that the Court grant defendants* motion for reconsidera tion, that it vacate its order remanding the case.to the Erie County Court of Common Pleas, and that it issue a writ of 5 certiorari to recover the pleadings in this action from that court. Of Counsel for Defendants The Goodyear Tire & Rubber Company, The BFGoodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp.: FULLER & HENR* 1200 Edison Plaza P. 0. Box 2088 Toledo, Ohio 43603 1200 Edison Plaza P. O. Box 2088 Toledo, Ohio 43603 Telephone: (419) 255-8220 Trial Counsel for Defendants The Goodyear Tire & Rubber Company, The BFGoodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Reply Brief in Support of Motion for Reconsideration has been mailed by United States mail, postage prepaid, to Kirk J. Delli Bovi, Esq., attorney for plaintiffs, at his office located at Murray & Murray Co., L.P.A., 300 Central Avenue, Sandusky, Ohio 44870, and to URL 07883 6 defense counsel as set forth in the attached Schedule of Service this Hi day of February, An Attorney for Defendants The Goodyear Tire & Rubber Company, The BF Goodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp. URL 07884 7 SCHEDULE OF SERVICE M. Donald Carmin, Esq. 800 United Savings Building Toledo, Ohio 43604 Attorney for Defendants Chrysler Plastic Products Corporation Norman P. Phillips Albert W. Cramer Robert D. Gustine William C. Holsapple Ron C. Abbott Willis P. Jones, Jr., Esq. 200 Toledo Legal Building 416 N. Erie Street Toledo, Ohio 43624 Attorney for Defendant DiversiTech General, Inc. S. Stuart Eilers, Esq. Douglas N. Barr, Esq. Timothy J. Coughlin 1100 National City Bank Bldg. Cleveland, Ohio 44114 Attorney for Defendant Stauffer Chemical Company H. William Bamman, Esq. 414 N. Erie Street Toledo, Ohio 43624 Attorney for Defendant A. Schulman, Inc. Ellis F. Robinson, Esq. 610 United Savings Buildina Toledo, Ohio 43604 Attorney for Defendant Shintech, Inc. URL 07885 EXHIBIT A t C -------- **** This day this cause came on for pretrial conference pursuant to regular assignment, and the Court notes and approves the following actions taken at such conference: JURY TRIAL scheduled APRIL 7, 1987 at 9:00 A.M. Plaintiff to identify medical causation experts on or before October 14, 1986. Parties granted leave to move for summary judgment. Causes remain consolidated for discovery. (attachments hereto). Toledo, Ohio. April 14, 1986 AO 72A (Rev. 6/82) URL 07886 KJDB:sg 01/26/87 EXHIBIT B URL 07887 IN THE COMMON PLEAS COURT OF ERIE COUNTY, OHIO MARY A, DENDINGER, ) ) executrix of the Estate of Herman A. } Dendinger, et si., ) Plaintiffs, ) ) ) vs. ) ) CHRYSLER PLASTIC PRODUCTS CORPORATION,) et al., ) Defendants. ) ) ) 1 ETTA W, WALLACE, executrix of the Estate of Fred A. ) ) Wallace, et al., ) ) Plaintiffs, ) ) vs. ) ) CHRYSLER PLASTIC PRODUCTS CORPORATION,) et al., ) Defendants. ) ) ) CASE NO. 46027 Judge Ann B. Kaschari MOTION FOR CONSOLIDATION AND MEMORANDUM TN_SUPPORT -0O0- Plaintiffs move the Court for an order consolidating this action with the case of Mary A. Dendinger, executrix of the Estate of Herman A. Dendinger, Case No. 47238, pursuant to Civil Rule 42(A). The grounds supporting this motion are set forth in the accompanying memorandum. Murray Murray co.,l.aa. .TTfiH.tTI AT UW ,#o mvtoo. tU,Ut<T,Ooi ***TO MURRAY & MURRAY CO., L.P.A. Attorneys for Plaintiffs MEMORANDUM IN SUPPORT OF MOTION The case of Herman A. Dendinger, et al. v. Chrysler Plastic Products Corporation, et ol. Case No. 46027, is a personal injury action asserting product liability, negligence and intentional tort claims. -Anumber of defendants thereafter, removed the case to the Federal District Court where it was consolidated with Fred A, Wallace et al. v. Chrysler Plastic Products Corporation, U.S. District Court Case No. C-84-7864. Following the deaths of Messrs. Dendinger and Wallace, their widows were substituted as parties-plaintiff. Believing the Dendinger case was improperly before the Federal District Court, Mary A. Dendinger, plaintiff's widow, filed a wrongful death case in this Court captioned Mary A. Dendinger, executrix of the Estate of Herman A. Dendinger v. Chrysler Plastic Products Corporation, Case No. 47238. Since the personal injury action in the Dendinger case and the personal injury and wrongful death actions in the Wallace case have properly been remanded to this Court, the wrongful death action brought by Mary A. Dendinger should now be consolidated with this action pursuant to Civil Rule 42{A), and the case should continue to proceed under its original case number 46027. Respectfully submitted. URL 07888 Murray 5> Murray co..lp,a. ATTO"N|V| AT WAW wMUf Ivniw* fee OHIO *4*76 Kirk 3. Delli Bovi MURRAY & MURRAY CO., L.P.A. 300 Central Avenue Sandusky, Ohio 44870 Telephone: (419) 627-9700 Attorneys for Plaintiffs * 2- CERTIFICATION This is to certify that a copy of the foregoing was served upon all counsel of record by mailing said copy, postage prepaid, addressed as follows: N. Donald Corwin, Esq. EASTMAN & SMITH 800 United Savings Building Toledo, Ohio 43604-1141 Attorneys for Chrysler and Individual defendants Ellis F. Robinson, Esq. RITTER, BOESEL, ROBINSON & MARSH 610 United Savings Building Toledo, Ohio 43604 Attorneys for Shintech, Inc. Willis P. Jones, Jr., Esq. 200 Toledo Legal Building 416 North Erie Street Toledo, Ohio 43624 Attorneys for Diversified General Timothy J. Coughlin, Esq. 1100 National City Bank Building Cleveland, Ohio 44114 Attorneys for Stauffer Chemical Company H. William Barman, Esq. MANAHAN, PIETRYKOWSKI & BAMMAN 414 N. Erie, P.0. Box 2328 Toledo, Ohio 43603 Attorneys for A. Schulman, Inc. Robert A. Bunda, Esq. 1200 Edison Plaza P.0. Box 2088 Toledo, Ohio 43603 Attorneys for The Goodyear Tire 4 Rubber Company, The BF Goodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp. this day of January, 1987 URL 07889 :R*r S> Murray *TTO'tl AT LA* ANDV,RT, OHIO a 3- - KJDBisg 02/02/87 EXHIBIT C 06810 "Mfi IN THE COMMON PLEAS COURT OF ERIE COUNTY, OHIO MARY A. DENDINGER, executrix of the Estate of Herman A. Dendinger, et al., ) ) ) CASE NO. 46027 Judge Ann B. Mascharl Plaintiffs, j vs. ) ) CHRYSLER PLASTIC PRODUCTS CORPORATION,) et al., ) ) Defendants. ') ) ETTA W. WALLACE, ) ) executrix of the Estate of Fred A. ) Wallace, et al., ) Plaintiffs, ) ) ) vs. ) ) CHRYSLER PLASTIC PRODUCTS CORPORATION,) et al., ) Defendants. ) ) ) MOTION FOR LEAVE TO FILE Amended complaint following CONSOLIDATION AND"MEMORANDUM "IN SUPPORT CASE NO. 46046 MOTION Pursuant to Ohio Civil Rules 15 and 42 plaintiffs move the Court for leave to file an amended complaint In case no. 46027 following the consolidation of case numbers 47238 and 46046 with and into that action. The grounds supporting this motion are set forth in the accompanying memorandum. iurray & Murray co..l.*a. * LCBAb MDrilllONK A***CAAT** ATtOMRlTl AT kAW (h****r IWUH IM AMDUaST.flMie *4*TO DennisT. Murray Kirk 0. Delll Bovi MURRAY & MURRAY CO., L.P.A. Attorneys for Plaintiffs MEMORANDUM IN SUPPORT OF MOTION Following the recent remand orders of the United States District Court for the Northern District of Ohio, Western Division, in District Court Case Nos. C-84-7854 and C-84-7864, there existed three separate cases in this Court involving a plethora of common legal and factual issues: Mary A. Dendinger, executrix, et a!:, v. Chrysler Plastic Products Corporation, et a!., Case No. 46027; Etta W. Wallace, executrix, et al., v. Chrysler Plastic Products Corporation, et al., Case No. 46046 and Mary A. Dendinger, executrix v. Chrysler Plastic Products Corporation et al., Case No. 47238. In order to simplify the issues involved in these items of litigation into one all-emcompassing pleading, plaintiffs move for leave 'of Court to file an amended complaint in Case No. 46027 after consolidation of Case Nos. 46046 and 47238 with and into Case No. 46027. Plaintiffs will incorporate into that amended pleading all of the allegations asserted against all of the defendants in all of the above-referenced cases. (See proposed Amended Complaint attached hereto). Pursuant to Civil Rule 15, leave of court, under these circumstances, shall be "freely given." Respectfully submitted, m Dennis'El Tiurray Kirk J. Delli Bovi MURRAY & MURRAY CO,, L.P.A, 300 Central Avenue Sandusky, Ohio 44870 Telephone: (419) 627-970C Attorneys for Plaintiffs URL 07891 Murray & Murray co.,u.r*. 4 A*iOCiATl9H AYtOHNCTl AT UAW IM wtavl |AN&U|Kt,OMtO 44|TO -2 CERTIFICATION This is tc certify that a copy of the foregoing was served upon all counsel of record by mailing said copy, postage prepaid, addressed as follows: K. Donald Carmin, Esq. EASTMAN & SMITH 800 United Savings Building Toledo, Ohio 43604-1141 Attorneys for Chrysler and Individual defendants Ellis F. Robinson, Esq. RITTER, BCESEL, ROBINSON & MARSH 610 United Savings Building Toledo, Ohio 43604 Attorneys for Shintech, Inc. Willis P. Jones, Jr., Esq. 200 Toledo Legal Building 416 North Erie Street Toledo, Ohio 43624 Attorneys for Diversified General Timothy 0. Coughlin, Esq. 1100 National City Bank Building Cleveland, Ohio 44114 Attorneys for Stauffer Chemical Company H. William Bamman, Esq. MANAHAN, PIETRYKOWSKI & BAMMAN 414 N. Erie, P.0. Box 2328 Toledo, Ohio 43603 Attorneys for A. Schulman, Inc. Robert A. Bunda, Esq. 1200 Edison Plaza P.0. Box 2088 Toledo, Ohio 43603 Attorneys for The Goodyear Tire & Rubber Company, The BF Goodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union' Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp. this day of February, 1987. URL 07892 Murray & Murray co..l.r.a. * MOrtftfiCNAL ATTORNlVI AT 4.AW URMT MM*** 3- - KODB:sg 02/03/87 URL 07893 IK THE COMMON PLEAS COURT OF ERIE COUNTY, OHIO MARY A. DENDINGEP., executrix of the ) ) Estate of Herman A. Oendinger, deceased, ) ) 1823 West Monroe Street, Sandusky, Ohio 44870 ) ) and ETTA W. WALLACE, personal representative of the Estate of Fred A. Wallace, deceased, 881 N.W. Columbia Street ) ) ) ) ) ) ) Port Charlotte, Florida 33948 ) Plaintiffs, ) ) ) vs. ) ) CHRYSLER PLASTIC PRODUCTS CORPORATION ) 3130 West Monroe Street ) Sandusky, Ohio 44870 ) THE GOODYEAR TIRE & RUBBER .COMPANY ) ) 1144 East Market Street Akron, Ohio 44305 ) \/ B.F. GOODRICH COMPANY ) ) 500 South Main Street Akron, Ohio 44318 ) ) FIRESTONE TIRE & RUBBER COMPANY 1200 Firestone Parkway Akron, Ohio 44317 ) ) I CONOCO, INC. 1 1007 Market Street Wilmington, Delaware 19898 UNION CARBIDE CORPORATION Old Ridgebury Road, Section C-2 ,RAY s Connecticut 06B17 itOAu ATTO*nCT| AT UAW RVMU* ANOUIKT, OHIO CASE NO. 46027 Judge Ann B. Maschari AMENDED COMPLAINT (Following Consolidation) Jury Demand Endorsed Hereon UNIROYAL, INC. World Headquarters Middlebury, Connecticut 06749 ) ) ) DIAMOND SHAMROCK CHEMICALS CO. 717 North Harwood Street Dallas, Texas 75201 ) ) ) OCCIDENTAL CHEMICAL CORP. Armond Hammer Blvd. P.0. Box 699 Pottstown, Pennslyvania 19464 STAUFFER CHEMICAL CO. NyaLa Farm Road Westport, Connecticut 06880 SHINTECH, INC. 5618 Highway 332 East Freeport, Texas 77541 D1VERSITECH GENERAL, INC. One General Street Akron, Ohio 44329 A. SCHULMAN, INC. 3550 West Market Street Akron, Ohio 44313 TENNECO, INC. 1010 Milam P.0. Box 2511 Houston, Texas ) ) ) ) 1 ) ) ) ) ) ) ) ) ) ) ) ) ) ) \ / AKE V. LJUNG General Manager Chrysler Plastic Products Sandusky, Ohio 44870 Current address unknown Corporation ) ) URL 07894 NORMAN P. PHILLIPS 1819 Millsboro Road East Mansfield, Ohio 44906 ALBERT W. CRAMER 1427 Chandler Drive, S.E. Huntsville, Alabama 35801 ROBERT D. GUSTINE 5183 Christine Drive Ann Arbor, Michigan 48103 Murray Z. Murray co..l.ra. ft *6FUIlDHAk ftOClAT>ON ATTONtV| 44IH ) ) ) ) ) ) ) ) ) 2- - RICHALD ALTHISER ) Production Color Department Supervisor) Chrysler Plastic Products Corporation ) Sandusky, Ohio 44870 Current address unknown ) ) RON C. ABBOTT ) ) Production Color Department Supervisor) Chrysler Plastic Products Corporation ) Sandusky, Ohio 44870 ) Current address unknown ) ) WILLIAM C. HOLSAPPLE ) Production Color Department Supervisor) Chrysler Plastic Products Corporation ) Sandusky, Ohio 44870 ) Current address unknown ) ) Defendants. ) ) -oOo- ; Now come plaintiffs, and for their Amended Complaint (Following Consolidation) against defendants state as follows: FIRST CAUSE OF ACTION 1. Plaintiff Mary A. Dendinger's decedent, Herman A. Dendinger (hereinafter "Dendinger"), was, at all times pertinent hereto, a resident of Erie County, Ohio, and worked at Chrysler Plastic Products Corporation's plant in the City of Sandusky, Erie County, Ohio, from August, 1968 until October, 1980. 2. Plaintiff Etta W. Wallace's decedent, Fred A. Wallace (hereinafter "Wallace"), was, at all times .pertinent hereto, a resident of Erie County, Ohio, and worked at Chrysler Plastic Products Corporation's plant in the City of Sandusky, Erie County, Ohio, from October, 1972 until April, 1978. URL 07895 Murray A ISOAW Murray co.,l.ra. AfltOClATlOM ATTOANCtt AT LAW ****** * ****** tAHDUlUT.OHid -3- 3. Plaintiff Hary A. Dendinger is the widow and duly appointed executrix of the estate of Dendinger, who died on April 2, 1986. 4. Plaintiff Etta Wallace is the widow and duly appointed personal representative of the estate ot Wallace, who died on July 23 , 1985. 5. Plaintiff Mary A. Dendinger is a resident of the County of Erie, State of Ohio. 6. Plaintiff Etta W. Wallace is a resident of the State cf FIorida. 7. Defendant, Chrysler Plastic Products Corporation (hereinafter "Chrysler") is a corporation incorporated in the State of Delaware. Chrysler is licensed to do business in the State'of Ohio and, at all times pertinent hereto, has transacted business and maintained operations in Erie County, Ohio, known as the Sandusky facility, that gave rise to the activities and claims set forth herein. 8. Defendants, Goodyear Tire and Rubber Co., B.F. Goodrich Co. and Firestone Tire and Rubber Co. are corporations incorporated in the State of Ohio and/or licensed to do business in the State of Ohio. 9. Defendants Ake V. Ljung, Norman P. Phillips, Albert W. Cramer, Robert D. Gustine, Richard Althiser, Ron C. Abbott, and William C. Holsapple (collectively hereinafter "Individual Defendants") are present and/or former employees of Chrysler and, at times pertinent hereto, exercised direct and/or ultimate supervision in a management capacity over Dendinger and/or Wallace at the Sandusky facility. The Individual Defendants are residents of various states, including Ohio. URL 07396 Murray L Hurray co.,laa. A ICOAW INAU Aaid*tian ATTOXHCTl AT LAW AHDUIKT, QMIO -A. 10. All defendants, at times pertinent hereto, transacted business and/or maintained operations in Erie County, Ohio, with the Chrysler facility that gave rise to the activities and claims set forth herein. 11. Defendants The Goodyear Tire & Rubber Company, B.F. Goodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Union Carbide Corporation, Uniroyal, Inc., Diamond Shamrock Chemicals Co., Occidental Chemical Corp., Stauffer Chemical Co., Shintech, Inc., Tenneco Chemicals, Inc., Diversitech General, Inc. and A. Schulman, Inc. (collectively hereinafter "PVC Resin Manufacturers"), at times relevant hereto, have been in the business of manufacturing and selling to ihe Sandusky facility of Chrysler in Erie County, Ohio, polyvinyl chloride resin i (hereinafter "PVC"), a substance containing vinyl chloride monomer (hereinafter "VC"), a known human carcinogen. 12. At all times during their employment at the Sandusky facility of Chrysler, Dendinger and Wallace inhaled, ingested and/or absorbed into their bodies quantities of toxic and carcinogenic substances, to-wit PVC and VC, as a direct and proximate result of the activities Dendinger and Wallace were required to perform in their employment at Chrysler's Sandusky faci1ity. 13. The levels of PVC and VC to which Dendinger and Wallace were exposed were above safe levels, permissible exposure limits, and threshold limit values. 14. Dendinger and Wallace's continuous, repeated exposure to PVC and VC at the Sandusky facility of Chrysler: URL 07897 Hurray Murray co.,l.r.a. a Leo**. Merutiox.ki aoTi ATTM*Y A* 1*0 ccitt*.. wt"VI UNDUIUT, OHIO *4070 5- - (a) caused Dendinger and Wallace serious physical injuries, including cancer and associated pathologies, which resulted in their deaths; (b) inflicted upon Dendinger and Wallace, prior to their deaths, severe physical and mental pain and suffering and extreme emotional distress; (c) rendered Dendinger and Wallace, prior to their deaths, permanently and totally disabled from employment; (d) repeatedly required Dendinger and Wallace, prior to their deaths, to obtain necessary hospital and medical care and to undergo surgeries and radiation and chemotherapy; (e) resulted in a permanent loss of Dendinger and Wallace's earning capacities; (f) caused Dendinger and Wallace's death. 15. At all times since Dendinger and Wallace's date of hire, Chrysler and the Individual Defendants knew or should have known that the work performed by Dendinger and Wallace at the Sandusky facility gave rise to the inhalation, ingestion and/or absorption into their bodies of quantities of toxic and carcinogenic PVC and VC, the dangerous and deadly propensities of which were known to, or should have been known by, Chrysler and the Individual Defendants. 16. Chrysler and the Individual Defendants intentionally exposed Dendinger and Wallace to toxic and carcinogenic PVC and VC at unsafe levels during the course of Dendinger and Wallace's employment at the Sandusky facility of Chrysler as a condition of continued employment, as a result of which Dendinger and Wallace sustained the injuries and losses, including the loss of life, referred to herein. Murray Murray co.,l,r*. A UOH MOfUtlOXAt Aft06Utl9M ATTOAMCVI AT MW>4U< >|R> >!> eOrTtUb flutuvc MNpgtar, wie **> -6- URL 07898 17. During the course of Dendinger and Wallace's employment with Chrysler, and following the termination of Dendinger and Wallace's employment with Chrysler, Chrysler and the Individual Defendants intentionally withheld and/or concealed from Dendinger and Wallace and their physicians, material information and warnings concerning PVC and VC, including information as to the dangerous and deadly propensities of such substances, the effects of overexposure to such substances on human health, the signs and symptoms of overexposure, the routes and mechanisms of exposure and the precautions to take to avoid overexposure. Chrysler and the Individual Defendants knew or should have known of the material nature of the information described herein. Information concerning which. Dendinger and Wallace and their physicians were unaware and knowledgeable. 18. Chrysler and the Individual Defendants knew or should have known of the serious health hazards to Dendinger and Wallace which would result from their continuous, repeated exposure to PVC and VC, health hazards which could have been prevented had Chrysler an the Individual Defendants fulfilled the duties and obligations enumerated herein. 19. Chrysler and the Individual Defendants, by their intentional conduct, failed to provide Dendinger and Wallace with a safe place to work. 20. Chrysler and the Individual Defendants, by their conduct, acted in willful and/or wanton disregard for.the life, health and safety of Dendinger and Wallace. 21. As a direct result of Chrysler's and the Individual Defendants' intentional conduct, Dendinger and Wallace sustained the injuries and losses, including the loss of life, described herein. Murray Murray co.,l.p.a. ArtOMNtTi AT LAW ectA^ AWOWOKT, OHIO MtTO ml m URL 07899 I 22. This cause of action is brought by Mary A. Denoinger, executrix of the Estate of Dendinger and Etta W. Wallace, personal representative of the Estate of Wallace, pursuant to common law and R.C. 2305.21, to recover for the injuries and losses sustained by Dendinger and Wallace up to ana including the time of their deaths. WHEREFGPE, plaintiff Mary A. Dendinger prays for compensatory damages from Chrysler and the Individual Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for punitive damages from Chrysler and the Individual Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. WHEREFORE, plaintiff Etta W. Wallace prays for compensatory damages from Chrysler and the Individual Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for punitive damages from Chrysler and the Individual Defendants, jointly and severally, in the amount of ten mi Hi or dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. URL 07900 SECOND CAUSE OF ACTION 23. All well-pleaded allegations contained in paragraphs 1 through 22 of the First Cause of Action are repleaded as if fully rewritten herein. 24. The PVC Resin Manufacturers negligently failed to take proper steps to instruct and warn Dendinger and Wallace of~the dangers of Murray & Murray co.,l.ra. A LCdAU RnOfElllQRAL A*ftOClATlM attqkncvi at uaw *W*A*T l|fH M--* lANOUIKY, OHIO Q -ft- URL 07901 overexposure to PVC and VC and the routes and mechanisms of exposure; failed to provide Dendinger and Wallace with information on the dangerous carcinogenic propensities of PVC and VC; neglected to inform Dendinger and Wallace of the effects of overexposure to PVC and VC on human health; failed to instruct or warn Dendinger sr.d Wallace concerning the signs and symptoms of overexposure to PVC and VC; and failed to provide information to Dendinger and Wallace as tc precautions necessary to prevent overexposure to PVC and VC. 25. The above-described actions and omissions of the PVC Resin Manufacturers were in willful and/or wanton disregard of the life, health, and safety of the users of their product, including Dendinger and Wallace. 26. As a direct and proximate result of the conduct of the PVC Resin Manufacturers described herein, Dendinger and Wallace sustained the injuries and losses, including the loss of life, enumerated above. WHEREFORE, plaintiff Mary A. Dendinger prays for compensatory damages from the PVC Manufacturers, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for punitive damages from, the PVC Manufacturers, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. WHEREFORE, plaintiff Etta W. Wallace prays for compensatory damages from the PVC Manufacturers, jointly, and severally, in the amount of ten million dollars ($10,000,000.00); for punitive damages from the PVC Manufacturers, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. Murray Z. Murray co..l.aa. A LIQAU OrUlONAL AlftOCtATlOM ATTO^NCVI at law VtAkAwa* irmwl IAHDUIBT, OHIO *4*70 *9 THI P.D CAUSE OF ACTION 27. All well-pleaded allegations contained in paragraphs 1 through 26 of the First and Second Causes of Action are repleaded as if fully rewritten herein. 28. PVC and VC are inherently dangerous, ultrahazardous products. As to the injuries and loss of life sustained by Dendinger and Wallace, the PVC Resin Manufacturers are strictly liable. PVC and VC were sold by the PVC Resin Manufacturers in a defective condition unreasonably dangerous to Dendinger and Wallace. Said PVC and VC reached Dendinger and Wallace without substantial change in the condition ir. which they were sold. 29. The above-described actions and omissions of the PVC Resin Manufacturers were in willful and/or wanton disregard of the life, health, and safety of the users of their product, including Dendinger and Wallace. 30. As a direct and proximate result of the conduct of the PVC Resin Manufacturers described herein, Dendinger and Wallace sustained the injuries and losses, including the loss of life, enumerated above. WHEREFORE, plaintiff Mary A. Dendinger prays for compensatory damages from the PVC Manufacturers, jointly and severally, in the amount of ten million dollars ($10,COO,000.00); for punitive damages from the PVC Manufacturers, jointly and severally, in the amount of ten million dollars ($10,000,000,00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the -Court deems proper. WHEREFORE, plaintiff Etta W. Wallace prays for compensatory damages from the PVC Manufacturers, jointly and severally. In the amount of ten million dollars ($10,000,000.00); for punitive damages from the PVC URL 0790 Murray & Murray co,lr*. * LCAAv o'caiionAk A,ee>ATiO". TTO*N(V| AT LAW ACVftY, OHIO 4*70 -in- URL 0790/ Manufacturers, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. FOURTH CAUSE OF ACTION 31. All well-pleaded allegations contained in paragraphs 1 through 30 ofthe First, Second and Third Causes of Action are repleaded as if fully rewritten herein. 32. This cause of action is brought, in part, by Mary A. Dendinger, executrix of the Estate of Dendinger, pursuant to R.C. 2125.01 et seq.,for the wrongful death of Dendinger and for the exclusive benefit of the surviving spouse and children of Dendinger, all of whom have suffered catastrophic damages by reason of Dendinger's terminal cancer and death, including: (c) funeral, burial, hospital and medical expenses; (b) loss of support as a result of the elimination of Dendinger's earning capacity; (c) loss of Dendinger's services; (d) loss of Dendinger's society, companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education and love; (e) loss of prospective inheritance; and, (f) extreme physical and emotional pain and suffering and mental anguish, 33. This cause of action is also brought, in part, by Etta W. Wallace, personal representative of the Estate of Wallace, pursuant to R.C. Murray Murray co..l.ra. A IIAAl VaOftlllONAk ASSOCIATION ATTpMNCTI AT LAW MtHVI OUt RT, OHIO ASSTO -11- 2125.01 et seq., for the wrongful death of Wallace end for the exclusive benefit of the surviving spouse, children and father of Wallace, all of whom have suffered catastrophic damages by reason of Wallace's terminal cancer and death, including: (a) funeral, burial, hospital and medical expenses; (b) loss of support as a result of the elimination of Wallace earning capacity; (c) loss of Wallace's services; (d) loss of Wallace's society, companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education and love; (e) loss of prospective inheritance; and, (f) extreme physical and emotional pain and suffering and mental anguish. 34. As a direct result of the conduct of the defendants enumerated herein, Dendinger contracted terminal cancer and died on April 2, 1986. As a direct result of the conduct of defendants enumerated herein and the consequent cancerand death of Dendinger, Mary A. Dendinger, Dendinger and the Dendinoer's children: Maureen A. Dendinger, Lisa M. Dendinger, Brian F. Dendinger and Sean A. Dendinger, sustained the injuries, losses and damages described herein. 35. As a direct result of. the conduct of the defendants enumerated herein, Wallace contracted terminal cancer and died on July 23, 1986. As a direct result of the conduct of defendants enumerated herein and URL 07904 Hurray & Murray co,.l.a.a. * LCfkAl* AftSOCtATlO* ATrOANCYl AT LAW gmuT *AMOUAY, OHIO 4*70 -17- the terminal cancer and death of Wallace, Etia Wallace and Etta's two minor children, Angela May Wallace and Sarah Joanne Wallace, and Wallace's father Roscoe Wallace, sustained the injurtes, losses and damages described herein. WHEREFORE, plaintiff Mary A. Dendinger prays for compensatory damages from Defendants, jointly and severally, in the amount of ter, million dollars ($10,000,000.00); for punitive damages from Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. WHEREFORE, plaintiff Etta W. Wallace prays for compensatory damages from Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for punitive damages from Defendants, jointly and severally, in the amount of ten million dollars ($10,000,000.00); for reasonable attorney and expert witness fees and costs; and for such other and further relief as the Court deems proper. URL 0790 Dennis E. Murray Kirk J. Del*1 i Bovi MURRAY * MURRAY CO., L.P.A. Attorneys at Law 300 Central Avenue Sandusky, Ohio 44870 Telephone (419) 627-9700 Attorneys for Plaintiffs JURY DEMAND Plaintiff hereby demands a trial by jury, Murray & Murray eo.,l.p.a. ATTO*N|T, #T L* HUMM ,^IMi IH wl.ul t<HDUI OHIO A4B70 Dennis E.( Murray Kirk 0. Del 1i Bovi MURRAY & MURRAY CO., L.P.A, Attorneys for Plaintiffs URL 07906 CERTIFICATION This is to certify that a copy of the foregoing was served upon all counsel of record by mailing said copy, postage prepaid, addressed as follows: K. Donald Carmin, Esq. EASTMAN & SMITH 800 United Savings Building Toledo, Ohio 43604-1141 Attorneys for Chrysler and Individual defendants Ellis F. Robinson, Esq. RITTER, BOESEL, ROBINSON & MARSH 610 United Savings Building Toledo, Ohio 43604 Attorneys for Shintech, Inc. Willis P. Jones, Jr., Esq. 200 Toledo Legal Building 416 North Erie Street Toledo, Ohio 43624 Attorneys for Diversified General Timothy J. Coughlin, Esq. 1100 National City Bank Building Cleveland, Ohio 44114 Attorneys for Stauffer Chemical Company H. William Bamman, Esq. KANAHAH, PIETRYKOWSKI & BAMMAN 414 N. Erie, P.0. Box 2328 Toledo, Ohio 43603 Attorneys for A. Schulman, Inc. Robert A. Bunda, Esq. 1200 Edison Plaza P.0. Box 2088 Toledo, Ohio 43603 Attorneys for The Goodyear .Tire & Rubber Company, The BF Goodrich Company, Firestone Tire & Rubber Company, Conoco, Inc., Uniroyal, Inc., Union Carbide Corporation, Diamond Shamrock Corporation, Tenneco, Inc. and Occidental Chemical Corp. this day of February, 1987. et AAMSUI KV, 0*O -14- Plaintiff has been advised by her attorney that the trial of this case will be advanced out of regular order if she requests that all of the testimony be pre-recorded on videotape pursuant to Civ. R. 40. Plaintiff requests that the trial be advanced. X Plaintiff does not wart the trial to be advanced. Dennis E. Murray Kirk J. Delli bovi MURRAY & MURRAY CO., L.P.A. Attorneys for Plaintiffs k w h -o TM 0 Murray L Murray eo.,l.p.a. .rOIHlVI AT Lw CrC fct Aa'taWC f/.HOulKT, OHIO tf4470 -15- EXHIBIT D RULES OF PRACTICE OF COURT OF COMMON PLEAS, ERIE COUNTY, OHIO EFFECTIVE AUGUST 35, 1983 URL 07903 TABLE OF COWTOTS Rule 1 - Pleadings and other papers................................................................ ............ 1 1.01 - Content!....................................................................................... ...................... 1 1.02 - Attachments................... ....................................................................................... 1 1.03 - Copies.........................................................................................................................1 1.04 - Access to and Inspectionof Files......................................................2 Rule 2 - Leave to Plead am! Amendment of Pleadings........................................ ,.3 2.01 - General.......................................................................................................................3 2.02 Cases Assigned for Trial........................................................... ................. 3 Rule 3 - Assignment of Cases to be Prerecorded: Objections to............ ...4 Rule 4 - Civil Kotlonj...................................................... ........................................................3 4.01 - Memoranda and Oral Argwents................................... -........... ..................3 4.02 - Motions Requiring laaediate Attention of Court....'................. 3 4.03 " Procedure Subsequent to Filing Motion............................... .......5 Rule 3 - Appeals to the Coenon Pleas Court.......... .................. -.............6 URL 07909 5.01 - Briefs................................................................................................................ 6 3.02 - Oral Arguments...................................................................................................... 6 Rule 6 - Equity.......................... .......................................................................................7 6.01 - Real Estate Proceedings.......................................................................... ...7 A. Foreclosure, Quiet Titleend Partition Actions.................... 7 B. Sheriff's Seles........................................................................................9 6.02 - Restraining Orders and Injunctions.....................................................10 Rule 7 - Counsel................................................ ............. .......................>............................11 7.01 - Appearances.....................................................................................*................^ 7.02 - Withdrawals.................... ................................................................................. CIVIL WPTIPNS 4.01 Kamorands and Oral Argument* 1 memoranduB citing the authorities relied upon must be filed with all civil actions. Including actions*for Summary Judgment raising questions of law or fact for determination. If oral argument Is requested, such will be noted on the aotion at the time of filing. Failure to make eueh request will be considered a waiver of oral argument. The Court, In its discretion, may grant or deny a request for oral argument. Opposing counsel will file a memoranda contra or request oral arg\ssent within fourteen (1L) days of the filing of the action or it will be *sned that the aotion la to be submitted on the aoving party's aeoorandua only. A reply memorandac aay be filed within seven (?) days of the filing of the aeaorandua contra. 4.02 Motions Requiring Immediate Attention of Court ghmn a aotion requires the lamellate attention of the Court, a copy shall be hand-delivered to the Judge's office or mailed directly to the Judge. 4.03 Procedure Subsequent to Filing Kotion Subsequent to the filing of any notion, all corre;ponde *n4 communication relative to the case shal1 be directed ic the Judge or Law Clerk, URL 07910 5-