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`SUMMONS
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`(CITA CION JUDICIAL)
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`NOTICE TO DEFENDANT:
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`(A VISO AL DEMANDADO):
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`THE DOW CHEMICAL COMPANY; Additional Parties Attachment form is attached.
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`YOU ARE BEING SUED BY PLAINTIFF:
`(LO ESTA DEMANDANDO EL DEMANDANTE):
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`GOOSE LAKE WATER PROPERTY OWNERS ASSOCIATION
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`SUM-100
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`FOR COURT USE ONLY
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`(SOLO PARA USO DE LA CORTE)
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`NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
`below.
`You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
`served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
`case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
`Online Self-Help Center (www.ceurtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the
`court clerk for a fee waiver form. If you do not file your response on time. you may lose the case by default, and yourwages, money, and property may
`be taken without further warning from the court.
`There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
`referral service. If you cannot afford an attorney. you may be eligible for free legal services from a nonprofit legal services program. You can locate
`
`these nonprofit groups at the California Legal Services Web site (MA/wJewhelpcalifornie.org), the California Courts Online Self-Help Center
`(www.courtinfo.ca.gov/selfhelp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
`costs on any settlement or arbitration award of $10,000 or more in a civll case. The court‘s lien must be paid before the court will dismiss the case.
`,'A VISO! Lo han demandede. Si no responde dentro de 30 dlas, le corte puede decidir en su contra sin escuchar su versien. Lea la informacién e
`continuecién.
`Tiene 30 D/AS DE CALENDARIO después de que le entreguen esta citacién y pepeles loge/es para presenter une respuesta por escrito en esta
`corte y hacer que se entregue una copia aI demendante. Una carta o une llamada telefenica no lo protegen. Su respuesta per escrito tiene que ester
`en formate legal cerrecto si desee que procesen su case en la corte. Es posible que haya un formulerio que usted puede usar para su respuesta.
`Puede encontrar estos formularios de la corte y mas informacién en el Centre de Ayude de las Cortes de California (www.sucerte.ca. gov), en la
`biblioleca de leyes de su cendado e en la corte que le quede mas cerce. Si no puede pager/a cuota de presentacién, pida al secretario de la ceIte que
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`le dé un formulario de exencien de page de cuotas. Si no presenta su respuesta a tlempe. puede perder el case por incumplimienle y la corte Ie podra
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`quitar su sue/do, dinero y blenes sin mes advertencia.
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`Hay otros requisites Iegales. Es recomendable que llama a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de
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`remisién a abegados. Si no puede pager e un abogado, es posible que cumpla con los requisites para obtener servicios legales gratuitos de un
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`progreme de servicios Iegeles sin fines de lucro. Puede encontrar estos grupos sin fines'de lucro en el sitio web de California Legal Services,
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`(www.lewhelpcelifomia.org), en el Centre de Ayuda de las Cortes de California, (www.3ucode. ca. gov) o poniéndose en contacto con la corte 0 el
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`colegio de abogados locales. AVISO: Per ley, la corte tiene dereche a reclemarles cuetes y los costos exentos porimponer un grevamen sobre
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`cualquier recuperecien de $10000 e mas de valor recibida mediante un acuerdo e une concesien de erbitraje en un ceso de derecho civil. Tiene que
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`pager el grevamen de la corte antes de que la corte puede desechar el case
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`The name and address of the courtIs:
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`(El nombre y direccién de la corte es): Superior Court Of California
`County of San Francisco
`400 McAllister Street, San Francisco. CA 94102
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`The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: (El nombre, la direccion y el ntimero
`de te/éfono del ebogado del demendante 0 del demendante que no tiene abogado, es):
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`John P. Flske, Baron & Budd, P. C. 11440 West Bernardo Court, Suite 265, San Diego, CA 92127; 85
`
`DATE
`Juyl 13 2020JUL 1 3 2020
`CLERK OF THE‘EltDtifiil
`(Fe03ha)
`(Secretario)
`
`(For proof of service of this summons, use Proof of Service of Summons (fomI POS-010).)
`(Para prueba de entrega de esta citation use el fennulario Proof of Service of Summons, (POS-010).)
`NOTICE TO THE PERSON SERVED: You are served
`
`
`
`Form Adapted for Mandatory Use
`Judicial Council of California
`SUM~100 (Rev. July 1, 2009]
`
`1. |:| as an individual defendant.
`2. I:} as the person sued under the fictitious name of (specify):
`
`3. 1:] on behalf of (specify):
`
`|:] CCP 416.60 (minor)
`under: 1:] CCP 416.10 (corporation)
`[:l CCP 416.70 (conservatee)
`|:| CCP 416.20 (defunct corporation)
`|:| CCP 416.40 (association or partnership) I: CCP 416.90 (authorized person)
`|:] other (specify):
`4. I: by personal delivery on (date)
`S U MMO N 3
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`pa 91.,”
`Code of Clvil Procedure §§ 412.20, 465
`www.courts.ca.gov
`
`

`

`SUM-200 A)
`
`SHORT TITLE:
`
`CASE NUMBER:
`
`
`Goose Lake Water Property Owners Association v. The Dow Chemical CGC " 2 0 - 5 8 5 3 5 8
`
`Com_. an ; et al.
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`+ This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons.
`+ If this attachment is used, insert the following statement in the plaintiff or defendant box on the summons: "Additional Parties
`Attachment form is attached."
`
`INSTRUCTIONS FOR USE
`
`List additional parties (Check only one box. Use a separate page for each type of party.):
`
`[:I Plaintiff
`
`Defendant
`
`I: Cross-Complainant
`
`|:] Cross-Defendant
`
`SHELL OIL COMPANY, individually and doing business as SHELL CHEMICAL COMPANY;
`OCCIDENTAL CHEMICAL CORPORATION; WILBUR ELLIS COMPANY LLC; J.R. SIMPLOT
`COMPANY; FMC CORPORATION; PUREGRO COMPANY; NUTRIEN AG SOLUTIONS, INC;
`SOUTHERN VALLEY CHEMICAL COMPANY; TRICAL, INC, and DOES 1 through 300, INCLUSIVE
`
`Judicial Council of Califomla
`F°"“ A‘°P“"“°rMa"“a‘°“l ”5"
`SUM-200W IRev. January 1. 2007]
`
`ADDITIONAL PARTIES ATTACHMENT
`Attachment to Summons
`
`Page
`
`of
`Page 1 of 1
`
`

`

`BARON & BUDD, P.C.
`John P. Fiske (CA Bar No. 249256)
`11440 West Bernardo Court, Suite 265
`San Diego, CA 92127
`Telephone: (858) 251—7424
`
`Scott Summy (TX Bar No. 19507500)
`Stephen Johnston (TX Bar No. 00796839)
`Celeste Evangelisti (CA Bar No. 225232)
`Cary McDougal (TX Bar No. 13569600)
`3102 Oak Lawn Avenue, Suite 1100
`Dallas, TX 75219-4281
`
`Telephone: (214) 521-3605
`
`BY‘FL‘X
`
`E E E?" E}:
`
`San Hancism CountySuperioriéeufi
`
`JUL 1 3 2020
`
`GQUBT
`
`
`Deputy Clerk
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`Attorneys for Plaintiff Goose Lake Water Property Owners Association
`
`IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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`IN AND FOR THE COUNTY OF SAN FRANCISCO
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`GOOSE LAKE WATER PROPERTY
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`OWNERS ASSOCIATION,
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`Plaintiff,
`
`VS.
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`' THE DOW CHEMICAL COMPANY;
`SHELL OIL COMPANY, individually and
`doing business as SHELL CHEMICAL
`COMPANY; OCCIDENTAL CHEMICAL
`CORPORATION; WILBUR ELLIS
`COMPANY LLC; J.R. SIMPLOT
`COMPANY; FMC CORPORATION;
`PUREGRO COMPANY; NUTRIEN AG
`SOLUTIONS, INC.; SOUTHERN VALLEY
`CHEMICAL COMPANY; TRICAL, INC.,
`and DOES 1 through 300, INCLUSIVE,
`
`Defendants.
`
`cacazo~5853§8
`
`COMPLAINT FOR DAMAGES AND bTHER
`RELIEF:
`
`(1) STRICT PROD. LIABILITY
`(DESIGN DEFECT);
`(2) STRICT PROD. LIABHJTY
`(FAILURE TO WARN)
`(3) NUISANCE;
`(4) TRESPASS; and
`(5) NEGLIGENCE.
`
`UNLIMITED CIVIL CASE
`JURY TRIAL DEMANDED
`
`Exempt from Filing Fees (Govt. Code § 6103);
`Deemed Verified (Code Civ. Proc. § 446)
`
`vvvvvvvvvvvvvvvvvvvvv Date Filed:
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`Plaintiff GOOSE LAKE WATER PROPERTY OWNERS ASSOCIATION hereby alleges as
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`follows, basedon information and belief and investigation of counsel:
`
` 1 -WaeeMw.u-Au.qmI-Im-.-.-M.-.muA-.-.-Awww-xIw.-.-.-.-.-«WA-I-.;yum,-mmmmwa—awmwmwwwxc
`
`COMPLAINT FOR DAMAGES AND OTHER RELIEF
`
`

`

`O
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`' O
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`I.
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`SUMMARY OF THE CASE
`
`1.
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`Plaintiff GOOSE LAKE WATER PROPERTY OWNERS AS SOCLATION
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`(“Plaintiff”) owns and operates a public water system (Gooselake Water Company Water System,
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`System No. 1500584) that provides drinking water to residents in its service area which is located in
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`Bakersfield, California. Plaintiff seeks to recover by this action the substantial costs necessary to
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`protect the public and restore one or more of its drinking water supply wells, which are contaminated
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`by the toxic chemical, 1,2,3-trichloropropane (“TCP”).
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`2.
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`TCP is a highly toxic substance that is an ingredient, component, constituent,
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`contaminant and/or impurity in certain commercial products. In years past, TCP, and/or products
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`containing TCP (collectively referred to hereinafter as “TCP Products”), were applied, released,
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`discharged and/or disposed of by others in the vicinity of one or more drinking water supply wells
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`owned and operated by Plaintiff. TCP has migrated through the subsurface and into the groundwater,
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`and now contaminates the water pumped from. one or more of Plaintiff 5 wells.
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`3.
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`The defendants in this action are the manufacturers, distributors and releasers of
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`the TCP Products that caused the contamination of Plaintiff s water supply. Among other things, the
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`manufacturer defendants knowingly and willfully manufactured, promoted, and sold TCP Products,
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`when they knew or reasonably should have known that this harmful compound would reach
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`groundwater, pollute drinking water supplies, render drinking water unusable and unsafe, and threaten
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`public health and welfare, as it has done with respect to Plaintiffs water supply.
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`4.
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`Plaintiff files this lawsuit to recover compensatory and all other damages, including all
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`necessary funds to compensate Plaintiff for the costs of designing, constructing, installing, operating
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`and maintaining the treatment facilities and equipment required to comply with state and federal safe
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`drinking water laws and to remove TCP from its water supply, and, to ensure that the responsible
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`parties bear such expense, rather than Plaintiff and its members and/or ratepayers.
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`2
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

`

`II.
`
`THE PARTIES
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`5.
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`Plaintiff owns and operates a public water system, which includes, among other
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`elements, one or more drinking water production wells which'draw from one or more groundwater
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`aquifers, associated pumping, storage, treatment and distribution facilities and equipment, all of which
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`will be referred to collectively in this Complaint as Plaintiff s I“Water System.” Plaintiff provides
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`potable water through its Water System to residents in its service area which is located in Bakersfield,
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`California. Among other things, Plaintiffs Water System includes the right of Plaintiff to extract and
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`use groundwater from its well(s) to supply drinking water to residents in its service area. Plaintiff has a
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`significant property interest in the waters it extracts and uses from its wells. The past, present and
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`continuing contamination of such waters by TCP constitutes physical injury to such waters for which
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`Plaintiff is entitled to, and Plaintiff hereby does, seek damages and other appropriate relief.
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`6.
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`The following defendants designed, manufactured, formulated, marketed, promoted,
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`distributed, sold (directly or indirectly), applied, discharged, disposed of and/or released the TCP
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`Products that are the source of the TCP that contaminates Plaintiff’s wells and water supply.
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`7.
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`Defendant THE DOW CHEMICAL COMPANY (“Dow Chemical”) is a Delaware
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`corporation with its principal place of business in Midland, Michigan, which at all times relevant to
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`this action was doing business in California.
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`8.
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`Defendant SHELL OIL COMPANY, individually and doing business as SHELL
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`CHEMICAL COMPANY (“Shell”) is a Delaware corporation with its principal place of business
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`in Houston, Texas, which at all times relevant to this action was doing business in California.
`
`'9.
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`Defendant OCCIDENTAL CHEMICAL CORPORATION, individually and as
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`successor by merger to Occidental Chemical Agricultural Products, Inc. (formerly known as
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`Occidental Chemical Company, successor by merger to Associated Farm Supplies (successor by
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`3
`WyWW.-A-.-.-.w..tW“9:a.w,yxu-A.mWWWw:.-4..7m-mw...M-.-.-.a=AA.-.-.viw-.w.;Aw.qJMama-WJMWMMWM-wm.
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`..
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
`
`

`

`I
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`merger to North Kern Farm Service Co. and Winton Farm Service Co.)) (“Occidental”), is a New York
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`corporation with its principal place of business in Dallas, Texas, which at all times relevant to this
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`action was doing business in California.
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`10.
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`Defendant WILBUR-ELLIS COMPANY LLC (“Wilbur-Ellis”) is a California
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`corporation with its principal place of business in San Francisco, California, which at all times relevant
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`to this action was doing business in California.
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`11.
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`Defendant J.R. SIMPLOT COMPANY (formerly known as Simplot Company),
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`individually and doing business as Simplot Grower Solutions and Simplot Soilbuilders, and as
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`successor by merger to Simcal Chemical Company (formerly known as Valley Nitrogen Producers,
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`Inc.) (“Simplot”), is a Nevada corporation with its principal place of business in Boise, Idaho, which at
`all times relevant to this action was doing business in California.
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`12.
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`Defendant FMC CORPORATION (“FMC”) is a Delaware corporation with its principal
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`place of business in Philadelphia, Pennsylvania, which at all times relevant to this action was doing
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`business in California.
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`13.
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`Defendant PUREGRO COMPANY (“PureGro”) is a California corporation with its
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`principal place of business in San Ramon, California, which at all times relevant to this action was
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`doing business in California.
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`14.
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`Defendant NUTRIEN AG SOLUTIONS, INC. (formerly known as Crop Production
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`Services, Inc.), individually and as successor in interest to Western Farm Service, Inc. (formerly
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`known as Cascade Farm Services, Inc.) and as successor in interest to UAP Distribution, Inc.
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`(individually and doing business as United Agri Products West, UAP West, and United Agri Products,
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`and as successor in interest to United Agri Products Financial Services, Inc.) (“Nutrien”), is a
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`Delaware corporation with its principal place of business in Loveland, Colorado, which at all times
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`relevant to this action was doing business in California.
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`WWWWW-WWWX .
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`4
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`v-mmwm-- MW
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`tmwuwwwmmv
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

`

`p.
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`15.
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`Defendant SOUTHERN VALLEY CHEMICAL COMPANY (“Southern Valley”) is a
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`California corporation with its principal place of business in Arvin, California, which at all times
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`relevant to this action was doing business in California.
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`16.
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`Defendant TRICAL, INC. (“TriCal”) is a'California corporation with its principal place
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`of business in Gilroy, California, which at all times relevant to this action was doing business in
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`California.
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`17.
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`The names and capacities, whether individual, corporate or otherwise, of defendants
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`named herein as DOES 1 through 300, inclusive, are unknown at this time to Plaintiff who therefore
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`sues said defendants by such fictitious names. Plaintiff will amend the Complaint to show the true
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`names and capacities of said defendants when their identities and capacities have been ascertained.
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`18.
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`The defendants named in paragraphs 7-16 above and defendant DOES 1 through 300,
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`inclusive, are referred to collectively herein as “Defendants.”
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`19.
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`Defendants Dow and Shell and DOES 1 through 100, inclusive, are referred to
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`collectively herein as Manufacturer Defendants.
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`20.
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`Defendants Occidental, Wilbur Ellis, Simplot, FMC, PureGro, Nutrien, Southern
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`Valley, TriCal, and DOES 101 through 200, inclusive, are referred to collectively herein as Distributor
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`Defendants.
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`21.
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`DOES 201 through 300, inclusive, are referred to collectively herein as Owner/Operator
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`Defendants.
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`22. When reference is made in this Complaint to any act or omission of any of the
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`Defendants, it shall be deemed that the officers, directors, agents, employees or representatives of the
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`Defendants committed or authorized such act or omission, or failed to adequately supervise or properly
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`control or direct their employees while engaged in the management, direction, operation or control of
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`the affairs of Defendants, and did so while acting within the scope of their duties, employment or
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`agency.
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`5
`W<WWoyWM-:WWx\y).\WWWNAW“«\uK-x:W-'-K'-V-'r-'-K‘AWMA'-'-K“firwww-WWAVMWWMWWWWWWWWWMWWW
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

`

`III.
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`JURISDICTION AND VENUE
`
`I
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`23.
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`The California Superior Court has jurisdiction over this action pursuant to California
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`Constitution Article VI, Section 10, which grants the Superior Court “original jurisdiction in all cases
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`except those given by statute to other trial courts.” The statutes under which this action is brought do
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`not grant jurisdiction to any other trial court.
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`24.
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`This Court has jurisdiction over Defendants because, based on information and belief,
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`each is a corporation or other business that has sufficient minimum contacts in California, is a citizen
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`of California, or otherwise intentionally avails itself of the California market either through the
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`distribution or sale of products containing TCP in the State of California or by having a manufacturing,
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`distribution or other facility located in California so as to render the exercise ofjurisdiction over it by
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`the California courts consistent with traditional notions of fair play and substantial justice.
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`25.
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`Venue is proper in San Francisco Superior Court because at least one Defendant’s
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`principal place of business is located within the County of San Francisco.
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`IV.
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`ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION
`
`A.
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`The Contaminant: TCP.
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`26.
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`TCP does not occur naturally. Rather, TCP is and/or was produced as a byproduct of
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`certain chemical processes used to produce allyl chloride, epichlorohydrin and synthetic glycerin,
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`which, in turn are and/or were used in connection with the manufacture of certain commercial
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`products. TCP is also known as allyl trichloride, glycerol trichlorohydrin, and/or trichlorohydrin.
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`Because only certain large-scale industrial chemical processes involving heat and chlorine produce
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`TCP, only a few companies in the United States are the source of TCP.
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`27.
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`TCP is and/or was, among other things, an inert ingredient, impurity and/or
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`manufacturing byproduct in certain soil fumigant products used to control nematodes (microscopic
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`worms that infest plant roots) that were marketed primarily, although not exclusively, from the 19405
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`WNW2WWWW-,mmmmvmmmxmwmmW
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

`

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`through the 19805. The TCP present in TCP-containing soil fumigants had, and has, no beneficial
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`purpose in connection with the application of such soil fumigants to crops.
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`28.
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`TCP is and/or was contained in certain other non-agricultural chemical products,
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`including, but not limited to, some solvents and extractive agents.
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`29.
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`TCP has unique characteristics that cause extensive environmental contamination and a
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`corresponding threat to the public health and welfare. In particular, TCP does not readily adsorb (i.e.,
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`stick) to soil particles. Rather, once it is applied, discharged, disposed of or otherwise released into or
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`onto land, it is readily transported through the subsurface and into groundwater. In addition, TCP is
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`known to be persistent, i.e., it does not readily biodegrade or chemically degrade naturally in the
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`subsurface. There is a lengthy delay, based on site specific factors, between the time TCP or products
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`containing TCP are released into the subsurface environment and the time TCP accumulates in
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`groundwater in sufficient quantities and locations to contaminate public drinking water resources. In
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`short, TCP migrates readily through soil and groundwater, resists natural degradation, and is difficult
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`and costly to remove from groundwater.
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`30.
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`TCP presents a significant threat to public health and welfare. TCP is known to cause
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`liver and kidney damage and blood disorders in animals exposed to TCP via ingestion. TCP has also
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`been shown to cause cancer in animals. It is listed by the United States Environmental Protection
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`Agency as a probable human carcinogen and is known to the State of California to cause cancer for
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`purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986.
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`B.
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`Regulatory Standards Applicable To TCP.
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`31.
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`No federal or state agency has approved TCP as an additive to drinking water. No
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`federal or state agency has approved releasing or discharging TCP to groundwater.
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`32.
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`The Division of Drinking Water of the California State Water Resources Control Board
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`(“DDW”), formerly part of the California Department of Public Health (“DPH”), is the state agency
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`responsible for regulating public water systems, including Plaintiff’s Water System.
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`7
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`33.
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`At the request of DPH, the California Office of Environmental Health Hazard
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`Assessment established a Public Health Goal (PHG) for TCP in drinking water of 0.0007 ug/L, or 0.7
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`parts per trillion (“ppt”). PHGs for carcinogens or other substances that may cause chronic disease are
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`based solely on health effects and are set at a level that the State has determined, based on the best
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`available toxicological data in the scientific literature, does not pose any significant risk to health.
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`34.
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`The State Water Resources Control Board (“SWRCB”), of which DDW is a division,
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`has formally adopted a Maximum Contaminant Level (“MCL”) for TCP of 0.005 ug/L or 5 ppt. An
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`MCL is an enforceable regulatory standard that establishes the maximum permissible level of a
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`contaminant in drinking water. Plaintiff, as the owner/operator of a California public water system, is
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`subject to, and required to comply with, the MCL for TCP.
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`C.
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`The Manufacturer Defendants’ Knowledge of TCP’s Hazards.
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`35.
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`The Manufacturer Defendants, each of whom has promoted the use of TCP Products,
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`knew or should have known of the grave harm and threat to public health and welfare and the
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`environment represented by proliferating use of this compound, including (among other things):
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`widespread pollution of groundwater with TCP, contamination of public and private drinking water
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`supplies by this harmful compound, drinking water supplies rendered unfit and unusable for
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`consumption and increased costs to public water suppliers and their customers.
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`36.
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`The Manufacturer Defendants had a duty and breached their duty to evaluate and test
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`such TCP Products adequately and thoroughly to determine their environmental fate and transport
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`characteristics and potential human health and environmental impacts before they produced and sold
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`such TCP Products. They also had a duty and breached their duty to minimize the environmental harm
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`caused by TCP. The Manufacturer Defendants, and each of them, failed to adequately evaluate and test
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`their TCP Products, or otherwise ensure that TCP would not contaminate drinking water. As a direct,
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`indirect and proximate result of these failures, TCP contaminated, and continues to contaminate,
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`Plaintiff‘s Water System and the groundwaters that supply it.
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`37.
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`At all times relevant to this action, the Manufacturer Defendants knew, or reasonably
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`should have known, among other things, that: (a) TCP is toxic; and (b) when applied, discharged,
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`disposed of or otherwise released into or onto land, TCP readily migrates through the subsurface,
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`mixes easily with groundwater, resists natural degradation, renders drinking water unsafe and/or non—
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`potable, and requires significant expenses to remove from public drinking water supplies.
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`38.
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`Despite knowing or having reason to know that long-term groundwater contamination,
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`pollution of water supplies, and threats to public health and safety were inevitable consequences of the
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`foreseeable and intended uses of their TCP Products without proper precautionary measures, including
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`but not limited to adequate warnings, the Manufacturer Defendants nonetheless promoted, marketed
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`and/or sold TCP Products in California and elsewhere.
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`39.
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`At all times relevant herein, the Manufacturer Defendants, and each of them, knew or
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`should have known that feasible measures could have been implemented to remove or substantially
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`reduce the amount of TCP in their finished TCP containing soil fumigant products without decreasing
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`the ability of these products to control nematodes, but they failed to implement such measures.
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`40.
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`At all times relevant herein, the Manufacturer Defendants, and each of them, knew or
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`should have known that TCP is a hazardous waste that should be disposed of safely and separately
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`from non-hazardous wastes. Nonetheless, the Manufacturer Defendants caused or allowed TCP — a
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`hazardous waste product created by their chemical manufacturing processes — to be included in their
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`TCP Products, including soil fumigant products. The Manufacturer Defendants instructed users to
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`apply their TCP-containing soil fumigant products to agricultural fields, where they knew or should
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`have known that TCP would contaminate groundwater.
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`41.
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`Adequate warnings regarding the known and foreseeable risks of TCP could have
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`prevented or mitigated the contamination and resulting damages alleged herein. Despite knowing or
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`having reason to know of the risks to public drinking water resources posed by the discharge, disposal
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`or release into or onto land of TCP Products, the Manufacturer Defendants unreasonably failed to
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`provide any adequate warnings regarding the known and foreseeable risks of TCP to customers, end-
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`users, regulators, public officials and/or the public, including Plaintiff.
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`42.
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`In addition to the negligent and/or reckless conduct alleged herein, the Manufacturer
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`Defendants, by agreement and/or tacit understanding among them, each knowingly pursued or took an
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`active part in a common plan, design and/or conspiracy to market and/0r promote products they knew
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`to be dangerous to the environment. In particular, these Defendants engaged in joint activity for the
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`specific purpose of suppressing, concealing, and/or minimizing information regarding the toxicity and
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`persistence of TCP. These Defendants’ common plan, design and/or conspiracy, and the acts taken in
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`furtherance of such common plan, design and/or conspiracy, are a direct and proximate cause of the
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`TCP contamination in Plaintiffs Water System.
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`D.
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`The, Impact of TCP on Plaintiff's Water System.
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`43.
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`TCP has been detected in varying amounts at varying times in water extracted from one
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`or more of Plaintiff‘s wells (referred to herein as the “Contaminated Well(s)”). TCP has been detected
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`and/or is present in the Contaminated Well(s) at levels substantially above the applicable PHG and/or
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`MCL for TCP. The detection and/or presence of TCP, and the threat of further detection and/or
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`presence of TCP, in the Contaminated Well(s) and in wells Plaintiff may acquire, use or construct in
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`the future, in varying amounts and at varying times has resulted in, and will continue to cause,
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`significant injuries and damages to the Contaminated Well(s) and Plaintiff’s Water System.
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`44.
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`The injuries to Plaintiff caused by Defendants’ conduct as alleged herein constitute an
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`unreasonable interference with, and physical damage to, the limited subterranean supplies of fresh
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`drinking water on which Plaintiffs Contaminated Well(s) depend. Plaintiff’ 3 interest in protecting the
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`quality of its limited drinking water supplies constitutes a reason personal for seeking damages
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`sufficient to restore such drinking water supplies to their pre-contamination condition.
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`E.
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`Summary of Allegations.
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`45.
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`At all times relevant to this action:
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`(a) The Manufacturer and Distributor Defendants, and each of them, sold,
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`exchanged, supplied, distributed, delivered or otherwise provided (directly
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`or indirectly) TCP Products to the Owner/Operator Defendants. Such
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`sales, exchanges, supplies, distributions, deliveries and/or other provisions
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`of TCP Products to the Owner/Operator Defendants occurred over time.
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`(b) TCP Products purchased or otherwise acquired (directly or indirectly)
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`from the Manufacturer and/or Distributor Defendants, and each of them,
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`by the Owner/Operator Defendants were applied, discharged, disposed of
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`or otherwise released into or onto lands in the vicinity of Plaintiff’s
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`Contaminated Well(s). Such applications, discharges, disposals and/or
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`releases of TCP occurred at various times, in varying quantities and in
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`different locations.
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`(0) TCP takes time to migrate from points of application, discharge, disposal
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`and/or release to locations within the subsurface at which it has an
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`appreciable impact on groundwater. TCP has over time migrated in the
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`subSurface from various application, discharge, disposal and/or release
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`points at or near the surface on lands in the vicinity of Plaintiffs
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`Contaminated Well(s), causing pollution, contamination, and substantial and
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`continuing damage to those Wells and the groundwaters that supply them,
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`as well as wells Plaintiff may acquire, use or construct in the future, causing
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`appreciable injury to Plaintiff and damaging Plaintiff at such times
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`and in amounts to be proved at trial.
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`46.
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`At all times relevant to this action, TCP Products manufactured, sold, and/or released by
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`Defendants caused and/or contributed to the TCP contamination alleged herein.
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`47.
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`At all times relevant to this action, the TCP Products purchased or otherwise acquired
`
`by the Owner/Operator Defendants were TCP Products manufactured, marketed, distributed and/or
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`sold by one or more of the Manufacturer and Distributor Defendants named herein.
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`48.
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`Defendants, and each of them, are jointly and severally liable for the damages
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`alleged herein.
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`FIRST CAUSE OF ACTION
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`(Strict Products Liability Based On Defective Design Against The Manufacturer and
`Distributor Defendants)
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`49.
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`Plaintiff realleges each of the preceding paragraphs, and by this reference incorporates
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`each such paragraph as though set forth in full.
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`50.
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`The Manufacturer and Distributor Defendants, and each of them, designed,
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`manufactured, formulated, promoted, marketed, distributed, and/or sold TCP Products.
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`51.
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`The Manufacturer and Distributor Defendants, and each of them, knew that such TCP
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`Products were to be purchased and used without inspection for defects.
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`52.
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`TCP Products purchased or otherwise acquired (directly or indirectly) from the
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`Manufacturer and/or Distributor Defendants, and each of them, by the Owner/Operator Defendants
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`were applied, discharged, disposed of or otherwise released into or onto lands in the vicinity of
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`Plaintiff’s Contaminated Well(s).
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`53.~
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`The TCP Products purchased by the Owner/Operator Defendants were used in a
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`reasonably foreseeable manner and without substantial change in the condition of such TCP Products.
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`54.
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`Soil fumigant products containing TCP are, and at all relevant times