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From Products Liability Law Daily, March 30, 2016

No evidence that chemical maker’s product was used in Iraq mustard gas that injured veteran

By John W. Scanlan, J.D.

A U.S. Army veteran of the Persian Gulf War who was injured by exposure to mustard gas was unable to show that a chemical manufacturer’s product was used in the mustard gas to which he was exposed, a Texas court of appeals ruled in granting the manufacturer’s no evidence summary judgment motion on his negligence and strict liability claims. Overruling the trial court’s judgment would require the court to stack inferences on top of inferences (Alarcon v. Alcolac, Inc., March 29, 2016, Wise, K.).

Alcolac, Inc., manufactured thiodiglycol (TDG), a chemical used to dye textile and leather and to make ink, but which also may be used as the primary chemical precursor in making mustard gas. Alcolac International, Inc., a subsidiary of Alcolac that was based in Maryland, exported TDG under the trade name Kromfax. In 1994, a number of veterans of the Persian Gulf War brought suit against Alcolac, Alcolac International, and other companies, alleging that they had been injured from exposure to their chemical and biological reagents during the war. The present plaintiff intervened in the suit in 2006, asserting that he was injured by mustard gas manufactured by Iraq using TDG made by Alcolac. In 2013, the trial court granted the company’s interlocutory no-evidence summary judgment motion and ordered that the veteran take nothing. The court subsequently moved to grant his motion to introduce newly discovered evidence, but did not alter its ruling, which became final after his claims were severed from the other plaintiffs’ claims. Although he raised several grounds in his appeal, the appellate court found that it needed to address only whether he had presented more than a scintilla of admissible evidence that he was exposed to mustard gas made from TDG manufactured by Alcolac.

Scintilla of evidence for causation. The no-evidence ruling was affirmed because the veteran could not satisfy his evidentiary burden. The veteran’s appeal was based on three conclusions by his expert: all of Iraq’s mustard gas supplies were exhausted by the end of the Iran-Iraq war; Alcolac was Iraq’s sole supplier of TDG from 1987 to 1990; and all of Iraq’s mustard gas used during the Persian Gulf War was manufactured using Alcolac’s TDG. However, the reports relied upon by the veteran did not expressly conclude that Iraq had exhausted its mustard gas supplies by the end of the Iran-Iraq war, but even if they had, that would not support the veteran’s argument because Alcolac’s last documented shipment of TDG to Iraq took place six months before the end of that war, giving rise to an inference that all of the mustard gas made with Alcolac’s TDG was exhausted. His expert’s analysis of the findings contained in the reports that he relied upon were conclusory and internally inconsistent. Further, there was no evidence that Iraq’s procedures for manufacturing mustard gas involved using the oldest supplies of TDG before any newer ones, rather than simply using whatever TDG was available at any given time and place.

Although the veteran presented some evidence that the majority of the TDG supplied to Iraq at this time was supplied by Alcolac, there also was evidence that a significant amount may have come from other sources. Although his expert testified that variations in the actual tonnage reported by Alcolac and a UN report “could be due” to Alcolac’s allegedly bad recordkeeping, this was a conclusion based upon no evidence, as was his conclusion that it was “more likely than not” that the veteran was exposed to mustard gas made with Alcolac’s TDG. There was no evidence for the expert’s assertions that Alcolac had failed to produce documents or engaged in discovery abuse, and the company was not charged with destroying any documents. Finally, the UN’s report did not show that no other entity had supplied TDG to Iraq from 1987 to 1990, but only listed some entities from which Iraq could not obtain TDG.

Substantial contributing factor. In the alternative, the veteran was unable to satisfy the substantial contributing factor for causation laid out by the Texas Supreme Court in Bostic v. Georgia-Pacific Corp. [see Products Liability Law Daily’s July 14, 2014 analysis]. The veteran asserted that Bostic did not require that he establish that his injury was caused completely by Alcolac’s product, but only that there was more than a doubling of the risk attributable to its product. Because, Alcolac supplied 538 of the 774 tons of mustard gas manufactured by Iraq, or 70 percent, he argued that would be sufficient to establish more than a doubling of the risk. However, the appellate court found that this was a fundamental misunderstanding of Bostic, which requires a showing more than a doubling of the risk of an injury as a result of the exposure to a sufficiently quantifiable dose of its product, not a greater than 50 percent likelihood of exposure to one of several defendants’ products. Doubling of the risk of injury was not the same as doubling the probability that the veteran was exposed to Alcolac’s product. Texas and Maryland have rejected collective liability theories, the court observed.

The case is No. 14-14-00377-CV.

Attorneys: Michael J. Maloney (Michael J. Maloney Attorney at Law) for Victor Alarcon. H. Ronald Welsh (Welsh & Chapoton, LLP) for Alcolac Inc. and Rhodia Inc.

Companies: Alcolac Inc.; Rhodia Inc.

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