Several manufacturers seek to dismiss a man’s suit alleging his wife died as a result of benzene exposure while working as a bus driver, arguing that the complaint fails to allege specific facts.
Duane Shirley, individually and as independent administrator of the estate of Theresa Shirley, filed the complaint on May 23 against Rust-Oleum Corporation, Turtle Wax Inc., and several unknown defendants, alleging benzene exposure.
According to the complaint, the decedent was allegedly exposed to benzene and benzene containing products from living near refinery facilities and during her work as a school recess monitor and bus driver for the East Alton Public Schools.
She was diagnosed with multiple myeloma in 2009 and died on Nov. 20, 2016.
The plaintiff also alleges that in 2015, the decedent had surgery to remove an infected hernia mesh, which allegedly contributed to her death.
The plaintiff alleges the defendants failed to provide adequate warnings and instructions on how to safely work with or around benzene-containing materials.
He filed an amended complaint on June 16.
Turtle Wax filed a motion to dismiss the first amended complaint on July 6 through attorneys M. Ann Hatch and Gary Smith of Herzog Crebs LLP in St. Louis.
The defendant argues that the plaintiff fails to state sufficient facts.
In the alternative, ConocoPhillips seeks more definite allegations identifying specific sites at which the decedent was allegedly exposed, names of specific benzene-containing products to which the decedent was allegedly exposed and the dates during which the decedent was allegedly exposed.
ConocoPhillips filed a motion to dismiss the first amended complaint on July 25 through attorneys Gregg Kinney and Larry Hepler of HeplerBroom in Edwardsville.
Calling the alleged benzene exposure a “blanket statement,” the defendant argues that the complaint contains insufficient facts by failing to specifically identify products the decedent was allegedly exposed to.
“That 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 or solvent industry, not limiting liability to its own conduct,” the motion states.
The defendant argues that it is entitled to specific allegations directed to it alone so it can evaluate the claims being made and prepare a defense.
ConocoPhillips also argues that the plaintiff’s request for punitive damages and fees is not proper. The plaintiff allegedly failed to follow the proper procedure to plead a claim for punitive damages, and attorney’s fees in this action are not recoverable by Illinois law.
Rust-Oleum filed a motion to dismiss the first amended complaint or for a more definite statement on July 28 through attorney Martha Charepoo of Baker Sterchi Cowden & Rice LLC in St. Louis.
The defendant argues that there is no allegation in the complaint that it has any affiliation with the refineries that allegedly emitted benzene into the environment.
It also argues that the plaintiff fails to provide specific products and time periods at issue.
“The allegations against Rust-Oleum are substantively insufficient in law and should be dismissed,” the motion states.
Rust-Oleum also argues that the plaintiff’s claims are time barred.
“Given that Plaintiff alleges that it is known that benzene is linked to multiple myeloma, there is no reason provided why the decedent did not know or could not have reasonably known that her disease was wrongfully caused around the time of her diagnosis or soon thereafter,” the motion states. “Indeed, there is none that can be alleged.”
In the alternative, Rust-Oleum says the plaintiff should be ordered to provide a more definite statement by identifying specific sites at which the decedent was allegedly exposed, specific products to which she was allegedly exposed and dates during which she was allegedly exposed.
The plaintiff seeks a judgment in excess of $50,000, plus costs and any other relief the court deems appropriate.
He is represented by Christopher Dysart of The Dysart Law Firm PC in Chesterfield, Mo.
Madison County Circuit Court case number 17-L-693