MADISON - ST. CLAIR RECORD

ConocoPhillips filed a motion to dismiss a benzene complaint alleging it contains insufficient facts and pleads numerous legal conclusions without a factual basis.

Represented by Larry Hepler of Edwardsville, ConocoPhillips argues the complaint fails to specifically identify any product allegedly processed, produced, manufactured, sold, distributed, marketed, or otherwise used by ConocoPhillips.

The estate of Joseph Kavich filed suit against ConocoPhillips and 27 other defendant corporations in Madison County Circuit Court claiming his benzene exposure caused him to develop myelodysplastic syndrome (MDS)which led to his death on July 5, 2007.

According to the complaint filed March 20, Kavich worked as a pipefitter, boiler maker and plumber at numerous defendant locations in Illinois, Montana, North Dakota, Wyoming and Texas.

The eight-count suit seeks in excess of $400,000 in compensatory damages and attorney fees.

ConocoPhillips claims the complaint lacks specific identification that Joseph Kavich was exposed to a particular ConocoPhillips product at any particular location or time.

"The complaint merely alleges in a blanket statement that decedent Joseph Kavich was exposed to and inhaled, ingested or otherwise absorbed benzene fumes emanating from benzene and benzene-containing materials and products he was working with and around," the motion to dismiss states. "For this reason, the complaint must be dismissed for failing to satisfy Illinois' fact-pleading statement."

Citing Second District Appellate case Chandler v. Illinois Central Railroad ConocoPhillips argues that when faced with a motion to dismiss, the trial court is to consider only allegations in the complaint and determine whether those well-pleaded facts are sufficient.

ConocoPhillips argues that Illinois law requires a plaintiff stating a cause of action for injury caused by a defective product to identify the particular product at issue and link it to the named defendant.

"Allowing plaintiff to proceed with this suit without specific product identification or exposure would require defendants, including ConocoPhillips, to act as insurers of the petroleum industry, not limiting to its own conduct," the motion states.

ConocoPhillips argues that the Illinois Supreme Court has soundly rejected the concept of suing a defendant without identification of its products.

"ConocoPhillips is entitled to specific allegations directed to it alone upon which it can separately evaluate the claims being made and as to which it can prepare its respective defense," the motion states.

Kavich's estate is represented by Richard Saville, Jr., Robert Evola and Ethan Flint of Alton.

In addition to ConocoPhillips, Kavich's estate also names Air Products and Chemicals, AmerenUE, B.F. Goodrich, BP Corp., BP Products North America, C.F. Braun & Co., Citgo Petroleum, E.I. DuPont De Nemours, Equistart Chemicals, Exxon Mobil, Flint Hills Resources, The Fluor Corp., Foster Wheeler Corp., Illinois Power Co., Mobil Corp., Morrison Construction Co., M.W. Kellogg Co., Parsons Corp., Phillips Chemical Co., Radiator Specialty Co., Shell Chemical Co., Shell Oil, Turtle Wax, United States Steel and 3M.

AmerenUE and Illinois Power also filed motions to dismiss basing their motions on similar allegations.