Ruth permits Texas attorney to participate in benzene case

Christina Stueve May 15, 2012, 12:00pm




Madison County Circuit Judge Dennis Ruth on May 10 allowed a Texas attorney to participate in a Madison County benzene case.

Frederick Wagner requested permission to participate on behalf of Barton Solvents Inc.
Ruth ordered Jeffrey T. Bash, an Illinois attorney, to be designated as local counsel for Barton Solvents.

Ricky Marshall and Jerry Marshall sued more than 60 defendant companies last September claiming Ricky Marshall worked as a pipefitter from 1970-2008 when he was allegedly exposed to benzene and benzene-containing products. Because of his exposure, he developed acute myelogenous leukemia and was diagnosed with cancer, his suit says.

The Marshalls are represented by attorneys with the Saville & Flint firm of Glen Carbon.

In his application to be part of the case, Wagner wrote that he had never taken the Illinois bar examination, been licensed to practice law in Illinois, and that he had never been censured sanctioned or disbarred by any disciplinary authority.

Performance Contractors, a defendant in the case, filed a motion to dismiss the complaint May 4, stating the lawsuit pleads numerous conclusions without facts.

Performance Contractors fails to identify a product processed or used by the defendant.

Missing from the complaint is identification that Marshall was exposed to a particular Performance Contractors product at any time, the motion stated.

Illinois law requires a plaintiff stating a cause of action for injury caused by a defective product to identify the product at issue and link it to the defendant, according to the motion.

The complaint lumps defendants together and makes blanket allegations against parties who are alleged to have processed, produced, manufactured, sold, distributed, marketed or otherwise used benzene and benzene-containing products, the motion stated.

Technical Chemical Company, another defendant in the case, said on April 19 the suit failed to show that it intentionally caused harm or disregarded the welfare of the injured plaintiff.

The company said in an April 19 motion to strike and dismiss, the plaintiffs made broad statements and vague allegations regarding the actions of a group of defendants and does not specify any misrepresentations or omissions made by Technical Chemical.

"Not only do the plaintiffs fail to specify the misrepresentations or omissions made by Technical Chemical, they fail to identify whether Plaintiff Marshall relied upon alleged misrepresentations or omissions," Technical Chemical's motion states. "Accordingly, plaintiffs fail to allege fraud with factual sufficiency."

In its answer to the complaint, the company says the plaintiff's alleged exposure was not caused by any product it designed or handled.

The company says it was the Marshalls' employers who had duty to warn.

"The plaintiff was employed by sophisticated employers, and the duty of Technical Chemical to warn plaintiff of any danger to the exposure to benzene and benzene containing products, the existence of which duty is expressly denied, was discharged by her employers' intervening duty to give plaintiff all required warning," Technical stated in its answer.

"Plaintiff's damages were caused by parties including corporations or entities other than Technical Chemical and such conduct bars or comparatively reduces any possible recovery by plaintiff against Technical Chemical."

Thomas M. Crawford and Michelle K. Correia of Litchfield Cavo in Chicago represent Technical Chemical Company, formerly known as Johnsen's Products.

Brian Huelsmann, Michael Chessler and Sean P. Sheehan of HeplerBroom represent Performance Contractors.

Madison County Circuit Court case number: 11-L-1211

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