2013-07-02 Plaintiffs 1st Amended Petition (Adding CF) From Aziz

7/28/2019 2013-07-02 Plaintiffs 1st Amended Petition (Adding CF) From Aziz

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FILED13 July 2 P2:51Karen MatkinDistrict ClerkMcLennan CountyAccepted by: Laura H


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PLAINTIFFS' FIRSTAMENDED PETITIONCOME NOW, Plaintiffs JOSHUA ZARECOR, CARMEN GAYLE BRIDGES,

INDIVDUALLY AND AS NEXT FRIEND OF JAIMESON AYDEN BRIDGES, MINORANDAS REPRESENTATIVE OF THE ESTATE OF MORRIS WAYNE BRIDGES, JR.,DECEASED, ERICA ROCHELLE SMITH, INDIVIDUALLY AND AS NEXT FRIEND OFKENDAHL JAMES SMITH, MINOR, DANA LYNETTE DRAPER and CHARLESRICHARD DRAPER, INDIVDUALLY, AND AS NEXT FRIENDS OF KYNLEE MADISON-LOUISE DRAPER and REBEKAH ANNE LOPEZ, MINORS, VIVIAN MARIE GREEN,SHAMALA MICHELLE JOHNSON, INDIVIDUALLY AND AS NEXT FRIEND OFKAYMAN JAMAL HAROLD, MINOR, FREDDIE LEE MITCHELL, PAULINE TAYLOR,SHEILA SHARLENE JOHNSON, VICKIE R. MCCREARY, EVELYN B. HANAK, ANISSAJO ADAMSON, DWIGHT LLYWELLEN DAVENPORT, MILTONEE CLATER, BOBBIEJEAN HARDIN, JON ANTHONY OLIVARES and HEATHER R. COX (collectively"Plaintiffs") including beneficiaries entitled to recover under the Texas Wrongful Death Statute,TEX. CIV. PRAC. & REM. CODE ANN. 71.001, et seq., and the Texas Survival Statute, TEX. CIV.PRAC. & REM. CODE ANN. 71.021 and all other applicable laws, and file their First AmendedPetition complaining ofDefendants ADAIR GRAIN, INC. D/B/AWEST FERTILIZER CO., CFINDUSTRIES SALES, LLC, CF INDUSTRIES HOLDINGS, INC., and CF INDUSTRIES,INC. Plaintiffs bring this First Amended Petition and would respectfully show this HonorableCourt the following:

I.DISCOVERY CONTROL PLAN1. Plaintiffs intend to conduct discovery in this case under Level 3 pursuant to Rule

190.4 of the Texas Rules ofCivil Procedure.2


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II.REQUEST FOR DISCLOSURE2. Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants are

requested to disclose the information and material described in Rule 194.2 within fifty (50) daysof the service of this request.

III.PARTIES3. Plaintiff Joshua Zarecor resides in McLennan County, Texas.4. Plaintiff Carmen Gayle Bridges resides in McLennan County, Texas. She brings

individual claims for the wrongful death of her husband Morris Wayne Bridges, Jr. and claimsAs Representative of the Estate ofMorris Wayne Bridges, Jr. and claims As Next Friend of theirminor child, Jaimeson Ayden Bridges.

5. PlaintiffMorris Wayne Bridges, Jr., is deceased.6. PlaintiffErica Rochelle Smith resides in McLennan County, Texas.7. Plaintiff Kendahl James Smith is a minor and resides in McLennan County,

Texas. He therefore brings this action by and through his mother, Erica Rochelle Smith, as nextfriend.

8. PlaintiffDana Lynette Draper resides in McLennan County, Texas.9. PlaintiffCharles Richard Draper resides in McLennan County, Texas.10. Plaintiff Kynlee Madison-Louise Draper is a minor and resides in McLennan

County, Texas. She therefore brings this action by and through her mother, Dana Lynette Draperand father, Charles Richard Draper, as next friends.

11. Plaintiff Rebekah Anne Lopez, is a minor and resides in McLennan County,Texas. She therefore brings this action by and through her mother, Dana Lynette Draper, as nextfriend.

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12. PlaintiffVivian Marie Greenresides inMcLennan County, Texas.13. Plaintiff ShamalaMichelle Johnson resides inMcLennan County, Texas.14. Plaintiff Kayman Jamal Harold, is a minor and resides in McLennan County,

Texas. He therefore brings this action by and through his mother, Shamala Michelle Johnson, asnext friend.

15. PlaintiffFreddie Lee Mitchell resides inMcLennan County, Texas.16. PlaintiffPauline Taylor resides inMcLennanCounty, Texas.17. Plaintiff Sheila Sharlene Johnson resides inMcLennan County, Texas.18. PlaintiffVickie R. McCreary resides inMcLennan County, Texas.19. PlaintiffEvelyn B. Hanak resides in McLennan County, Texas.20. PlaintiffAnissa Jo Adamson resides in McLennan County, Texas.21. PlaintiffDwight Llywellen Davenport resides inMcLennan County, Texas.22. PlaintiffMiltonee Clater resides inMcLennan County, Texas.23. PlaintiffBobbie Jean Hardin resides in McLennan County, Texas.24. Plaintiff Jon Anthony Olivares resides inMcLennan County, Texas.25. PlaintiffHeather R. Cox resides in McLennan County, Texas.26. Defendant Adair Grain, Inc. d/b/aWest Fertilizer Co. has appeared and answered.27. Defendant CF INDUSTRIES SALES, LLC is a Delaware limited liability

corporation headquartered in Wilmington, Delaware. At all times relevant hereto, it has beenactively doing business in the State of Texas. CF Industries Sales, LLC may be served withprocess through its registered agent Corporation Services Company d/b/a Lawyers IncorporatingServiceCompany, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218.

28. Plaintiffs specifically invoke the right to institute this suit against whatever entity

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was conducting business using the assumed or common name of "CF Industries Sales, LLC"with regard to the events described in this First Amended Petition. Plaintiffs expressly invoketheir right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of thisparty substituted at a later time upon the motion of any party or of the Court.

29. Defendant CF INDUSTRIES HOLDINGS, INC. is a Delaware corporationheadquartered in Deerfield, Illinois. At all relevant times, this Defendant has been actively doingbusiness in the State ofTexas. CF Industries Holdings, Inc. may be served with process throughits registered agent, Illinois Corporation Service Co., 801 Adlai Stevenson Drive, Springfield,Illinois 62703.

30. Plaintiffs specifically invoke the right to institute this suit against whatever entitywas conducting business using the assumed or common name of "CF Industries Holdings, Inc."with regard to the events described in this First Amended Petition. Plaintiffs expressly invoketheir right under Rule 28 of the Texas Rules of Civil Procedure to have the true name of thisparty substituted at a later time upon the motion of any party or of the Court.

31. Defendant CF INDUSTRIES, INC. is a Delaware corporation headquartered inDeerfield, Illinois. At all relevant times, this Defendant has been actively doing business in theState of Texas. CF Industries, Inc. may be served with process through its registered agent,Illinois Corporation Service Co., 801 Adlai Stevenson Drive, Springfield, Illinois 62703.

32. Plaintiffs specifically invoke the right to institute this suit against whatever entitywas conducting business using the assumed or common name of "CF Industries, Inc." withregard to the events described in this First Amended Petition. Plaintiffs expressly invoke theirright under Rule 28 of the Texas Rules of Civil Procedure to have the true name of this partysubstituted at a later time upon the motion of any party or of the Court.

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33. Plaintiffs Carmen Gayle Bridges and Jaimeson Aiden Bridges, identified above,bring this action as beneficiaries entitled to recover under the Texas Wrongful Death Statute,TEX. CIV. PRAC. & REM. CODE ANN. 71.001, et seq., and the Texas Survival Statute, TEX. CIV.PRAC. & REM. CODE ANN. 71.021 and all other applicable laws.

IV.JURISDICTIONAND VENUE

34. Venue is proper in McLennan County, Texas pursuant to Texas Civil Practices &Remedies Code 15.002(a)(1) because a substantial part of the events or omissions giving rise tothe claim, including contract negotiations, occurred in McLennan County, Texas.

35. As set forth below, Plaintiffs' causes of action arise out of an explosion inMcLennan County, Texas wherein the negligent conduct of Defendants in McLennan County,Texas was a proximate cause of the explosion and Plaintiffs' damages resulting from theoccurrence in question.

36. This Court has jurisdiction over the subject matter of this lawsuit and the amountin controversy exceeds the minimal jurisdictional limits of this Court. The Federal Courts lacksubject matter jurisdiction over this action. Additionally, Defendants Adair Grain, Inc. d/b/aWest Fertilizer Co., CF Industries Sales, LLC, CF Industries Holdings, Inc., and CF Industries,Inc. do business in Texas and are subject to jurisdiction of this Court.

37. Plaintiffs seek monetary reliefover $1,000,000.v.FACTS

38. At the time of the incident in question and all relevant time prior, Adair, Inc.,d/b/a West Fertilizer Company (Defendant Adair) was in the business of storing and distributingnitrogenous fertilizers, such ammonium nitrate, at its fertilizer mixing facility located near West,Texas (West Fertilizer Co. facility).

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39. At the time of the incident in question and all relevant time prior, CF IndustriesSales, LLC, CF Industries Holdings, Inc., and CF Industries, Inc. (collectively referred to as "CFIndustries Defendants") were global manufacturers and distributors of fertilizers, includingammonium nitrate.

40. Over the course of March and April 2013, Defendant Adair purchasedapproximately 200 tons of ammonium nitrate manufactured and distributed by CF IndustriesDefendants. At the time of purchase, ammonium nitrate was commonly used in agriculture as ahigh-nitrogen fertilizer, and consisted of an oxidizing agent found in explosives. In addition, itwas the main component of ANFO, an explosive that accounted for 80% of explosives used inNorth America.

41. Defendant Adair stored the ammonium nitrate received in March and April at theWest Fertilizer Co. facility inside wooden stalls.

42. On or about the night ofApril 17, 2013, a fire occurred at the West Fertilizer Co.facility. The stored ammonium nitrate became chemically unstable and exploded.

43. As a result of the catastrophic explosion, the town of West and its inhabitantswere devastated. The explosion killed fifteen (15) people, injured more than 160 others, anddestroyed or severely damaged real property.

44. Plaintiffs suffered physical as well as emotional injuries which resulted from theexplosion at the West Fertilizer Co.'s facility.

VI.CLAIMS AGAINST CF INDUSTRIES DEFENDANTS

A. PRODUCTS LIABILITY - DESIGN DEFECT45. The ammonium nitrate that exploded at the West Fertilizer Co. facility was

designed by CF Industries Defendants. At the time the ammonium nitrate in question was sold,7


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CF Industries Defendants were in the business of designing, manufacturing, selling, and/orotherwise placing ammonium nitrate, such as the one in question, in the stream of commerce.

46. At the time the ammonium nitrate in question was designed and sold by CFIndustries Defendants it was defective in design and unreasonably dangerous. The defective andunreasonably dangerous ammonium nitrate in question was a direct and proximate cause of theinjuries to the Plaintiffs.

47. The ammonium nitrate in question, reached West Fertilizer in the conditionexpected and intended by CF Industries Defendants.

48. The storage of the ammonium nitrate at the West Fertilizer Co. facility was part ofthe stream of commerce and was for the ammonium nitrate's intended and foreseeable purpose.

49. Safer alternative designs existed other than the one used, which wereeconomically and technologically feasible and would have prevented or significantly reduced therisk of harm and/or injury in question without substantially impairing the utility of theammonium nitrate.

50. Simply adding additives, for example, calcium carbonate or urea granules wouldhave curtailed or completely prevented the explosive reaction of the ammonium nitrate and madethe product stable. Further, there were an abundance of alternative designs no longer protectedby patent rights, which nullify or reduce the reactive properties of ammonium nitrate such as thatin question.

51. Each alternative design for the manufactured ammonium nitrate in question wasavailable in the worldwide and United States market and was technologically and economicallyfeasible at the time the ammonium nitrate in question was manufactured and would not haveimpaired the utility of the ammonium nitrate.

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52. The defective and unreasonably dangerous design of the ammonium nitrate was aproducingcause of the plaintiffs' injuries and resulting deaths.

53. At the time of the incident, the ammonium nitrate was in the same or substantiallysimilar condition as it was at the time when it left CF Industries Defendants' possession.

54. No mandatory safety standard or regulation adopted and promulgated by thefederal government or an agency of the federal government were applicable to the ammoniumnitrate at the time it was manufactured that governed any product risk that caused the accidentand/or injuries to the plaintiffs. To the extent Defendants attempt, pursuant to 82.008 of theTexas Civil Practice & Remedies Code, to rely on any standards or regulations of the federalgovernment, such standards or regulations were inadequate to protect against the risk of accidentand/or injuries that occurred in this accident and/or Defendants withheld or misrepresentedinformation to the government regarding the adequacy of the safety standard at issue.

55. The ammonium nitrate distributed by CF Industries Defendants was unreasonably

dangerous as defectively formulated and designed. CF Industries Defendants failed to institute asafer alternative design of adding an additive and/or changing the chemical composition, both ofwhich would have prevented the chemical from reacting to heat and exploding. The CFIndustriesDefendants are strictly liable for defectively formulating and designing the ammoniumnitrate that caused the explosion in question.B. PRODUCTS LIABILITY - MARKETING DEFECT

56. The ammonium nitrate that exploded at the West Fertilizer Co. facility wasmanufactured, marketed, and sold by CF Industries Defendants. At the time the ammoniumnitrate in question was sold, CF Industries Defendants were in the business of manufacturing,marketing, selling, and/or otherwise placing ammonium nitrate, such as the one in question, in

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the streamof commerce.57. At the time the ammonium nitrate in question was marketed and sold by CF

Industries Defendants it contained an inherent risk of harm that could arise from the intended orreasonablyanticipated use.

58. The ammonium nitrate in question, reached Defendant Adair and the WestFertilizerCo. facility in the condition expected and intended by CF Industries Defendants.

59. The storage of the ammonium nitrate at the West Fertilizer Co. facility was for theammoniumnitrate's intended and foreseeable purpose.

60. CF Industries Defendants knew or should have reasonably foreseen the risk ofharm at the time the product was marketed. Chemical companies that manufacture, market, andsell ammonium nitrate, such as the one in question, have been aware of the inherent dangersassociated with ammonium nitrate. In addition to intentionally using ammonium nitrate as anexplosive, there have been prior well documented accidental explosions caused by ammoniumnitrate: 1994 Port Neal, Iowa fertilizer explosion; 1988 Kansas City, Missouri explosions at aconstruction site; and the 1959 Roseburg, OregonBlast.

61. The ammonium nitrate distributed by CF Industries Defendants contained amarketing defect. CF Industries Defendants were required to provide an accurate and thoroughmaterial safety data sheet (MSDS) to customers with any shipment of ammonium nitrate. Due tothe inherent risk of harm, CF Industries Defendants had an obligation to ensure the informationprovided to customers accurately reflected the scientific method used in making a hazardclassification of the ammonium nitrate. CF Industries Defendants had a duty to add any and allnew significant information regarding ammonium nitrate to the MSDS within three (3) monthsof learning of such information.

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62. Neither shipment of ammonium nitrate in March and April included the requiredMSDS. At the time of these shipments, CF Industries Defendants provided MSDS that usedoutdated standards.

63. The absence of proper warning and/or instructions, as would have been found inproper MSDS, rendered the ammonium nitrate unreasonably dangerous.

64. Such failure to warn and/or instruct constituted a causative nexus in the Plaintiffs'injuries. If CF Industries Defendants had properly provided up-to-date MSDS with the Marchand April shipments, appropriate actions could have been taken to reduce or prevent the inherentrisk of harm of an explosion. Because the MSDS were not provided, such an explosion didoccur, which caused Plaintiffs' injuries.

65. CF Industries Defendants ' failure to properly warn consumers that its inherentlydangerous ammonium nitrate caused Plaintiffs' injuries. For such breach of duty, CF IndustriesDefendants are strictly liable for Plaintiffs' injuries.C. NEGLIGENCE

66. CF Industries Defendants committed acts of omission and commission, whichcollectively and severally constituted negligence. CF Industries Defendants had a duty toexercise ordinary care, meaning that degree of care that would be used by any chemical companyof ordinary prudence' under the same or similar circumstances, and CF Industries Defendantsbreached that duty, including but not limited to, one or more of the following ways:

a. failing to properly design the ammonium nitrate;b. failing to properly market the ammonium nitrate;c. failing to provide the appropriate MSDS to consumers;d. failing to inspect the West fertilizer mixing facility;

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e. failing to warn the West fertilizer mixing facility of improper storage; andf. failing to include an additive/coating that would prevent the ammonium

nitrate from detonating/exploding.67. CF Industries Defendants' breaches were a proximate cause of the occurrence in

question and the injuries and damages sustained by Plaintiffs herein.D. GROSS NEGLIGENCE

68. Prior to the explosion at the West Fertilizer Co. facility, CF IndustriesDefendants: (1) unconscionably and wantonly neglected to take actions reasonably required tocorrect Defendants' past mistakes and omissions; and (2) unconscionably and wantonlyneglected to reasonably protect Plaintiffs from the unreasonably dangerous conditionsDefendantscreated.

69. CF Industries Defendants were grossly negligent in the designing, manufacturing,marketing, and selling of ammonium nitrate, creating an unreasonably dangerous condition,which led to the fatal fire and explosion of the West Fertilizer Co. facility. These acts ofomission and commission, included, but were not limited to, failing to add protective coating tothe ammonium nitrate in question, failing to change the chemical compound of the ammoniumnitrate in question, failing to properly warn about the inherent risk of harm associated withammonium nitrate in question, and failing to properly manufacture the ammonium nitrate inquestion, when Defendant knew or should have known that under certain conditions, theammoniumnitrate was highly explosive, which was unsafe and could result in death.

70. CF Industries Defendants committed acts of omission and commission, whichcollectively and severally, constituted malice under Chapter 41 of the Texas Civil Practice &Remedies Code, which malice was a proximate cause of the accident described herein. Plaintiffs

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seek exemplary damages as allowed by law in an amount to be determined at trial. These acts ofmalice involved an extreme degree of risk considering the probability and magnitude of harm toothers; and of which Defendant had actual, subjective awareness of such risks involved, butnevertheless proceeded with conscious indifference to the rights, safety, or welfare ofothers.

VII.CLAIMS AGAINST ADAIR

A. NEGLIGENCE71. Defendant Adair committed acts of omission and commission, which collectively

and severally constituted negligence. Defendant Adair had a duty to exercise ordinary care,meaning that degree of care that would be used by any fertilizer company of ordinary prudenceunder the same or similar circumstances, and Defendant Adair breached that duty. DefendantAdair's breach of duty was a proximate cause of the injuries suffered by Plaintiffs.

VIII.DAMAGES72. As a result of the actions of Defendants, Plaintiffs have suffered losses of, and

seeks damages for, amounts within the jurisdictional limits of this Court. Plaintiffs pray:a. That Defendants be cited to appear and answer herein;b. That Plaintiffs be awarded reasonable and necessary expenses for the

following:1. Physical pain and mental anguish sustained in the past and that, in

reasonable probability, Plaintiffs will sustain in the future;11. Physical impairment and/or disfigurement sustained in the past and

that, in reasonable probability, Plaintiffs will sustain in the future;and

111. Medical care expenses incurred in the past and that, in reasonable13


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probability, Plaintiffs will sustain in the future.c. That Plaintiffs recover actual damages including but not limited to loss of

support, funeral and burial expenses, past lost wages, future lost wages,loss of consortium, conscious pain and suffering, loss of parentalconsortium, loss of household services, any and all damages recoverableunder the Texas Wrongful Death and Survival Statutes in excess of theminimum jurisdictional amount of this Court; court costs, andprejudgment and post judgment interest at the maximum rate allowed bythe law;

d. That Plaintiffs recover exemplary or punitive damages;e. That Plaintiffs recover damages in excess of the minimum jurisdictional

amount of this Court; court costs, and prejudgment and post judgmentinterest at the maximum rate allowed by the law;

f. That Plaintiffs have whatever other and further reliefat law or in equity towhich they may be justly entitled.

73. Furthermore, the acts and omissions of Defendants, when viewed from itsstandpoint, involved an extreme degree of risk, considering the probability and magnitude of thepotential harm to others. Therefore, because of Defendants' gross negligence, Plaintiffs seek torecover exemplary damages pursuant to Chapter 41 of the Texas Civil Practice and RemediesCode.

IX.PRESERVING EVIDENCE74. Plaintiffs hereby request and demand that Defendants preserve and maintain all

evidence pertaining to any claim or defense related to the incident made the basis of this lawsuit14


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or the damages resulting therefrom, including statements, photographs, videotapes, audiotapes,surveillance or security tapes or information, business or medical records, incident reports, tenantfiles, periodic reports, financial statements, bills, telephone call slips or records, estimates,invoices, checks, measurements, correspondence, facsimiles, email, voice mail, text messages,any evidence involving the incident in question, and any electronic image or information relatedto the referenced incident or damages. Failure to maintain such items will constitute "spoliation"of the evidence.

x.PRAYER

WHEREFORE, Plaintiffs pray that Defendants be cited to appear and answer herein, andthat upon final trial they be awarded the following from Defendants:

a. Actual damages, including economic loss;b. Exemplary damages;c. Costs of suit;d. Loss of consortium and parental guidance;e. Pre-judgment and post-judgment interest on all applicable amounts at themaximum non-usurious rate as allowed by law; andd. Such other and further reliefto which Plaintiffs may show they are justly entitled.

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Respectfully submitted,ABRAHAM, WATKINS, NICHOLS,SORRELS, AGOSTO & FRIEND

Muhammad S. AzizState Bar No. 24043538800 Commerce StreetHouston, Texas 77002(713) 222-7211 Telephone(713) 225-0817 FacsimileTHE PINKERTON LAW FIRM, PLLC

By: C. Chad PinkertonState BarNo. 240471995020 Montrose Boulevard, Suite 550Houston, Texas 77006(713) 360-6722 Telephone(713) 360-6810 Facsimile

ATTORNEYS FORPLAINTIFFS

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CERTIFICATE OF SERVICEI hereby certify that a true and correct copy of the foregoi ng instrument has beenforwarded in accordance with the Texas Rules ofCivil Procedure to the attorneys listed below onthis L"1c{ day of July, 2013 :

H. Brook LaskeyMcCoy, Leavitt , Laskey , LLC1805 Rio Grande Blvd.NW , Suite 2Albuquerque, New Mexico 87104ViaFacsimile: (505) 246-0193John V. McCoyMcCoy Leavitt Laskey, LLCN19 W24200 Riverwood Drive , Ste. 125Waukesha, Wisconsin 53188ViaFacsimile: (262) 522-7020

1. Hayes Fuller IIINaman, Howell, Smith & Lee, PLLC400 Austin Avenue, Suite 800Waco, Texas 76701Via Facsimile: (254) 754-6331

Muhammad S. Aziz

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2013-07-02 Plaintiffs 1st Amended Petition (Adding CF) From Aziz

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Transcript of 2013-07-02 Plaintiffs 1st Amended Petition (Adding CF) From Aziz