Todd E. Robins (SBN 191853)
`Jed J. Borghei (SBN 257049)
`Taeva C. Shefler (SBN 291637)
`ROBINS BORGHEI LLP
`369 Pine Street, Suite 400
`San Francisco, CA 94104
`
`Telephone: (415) 848-8850
`Facsimile: (415) 276-5 875
`
`‘5
`
`F E WLie E)[Exempt from Filing and
`3"" Mo’s” County SUPW’OT CO”JR/lotion Fees — Govt
`-
`2;. Code § 6103]
`NOV 1 0 «was
`‘
`'
`‘
`2
`'WgfiBK ofIHE-901313]-
`'
`BOWMAN LIU
`
`BY:
`
`Deputy Clerk
`
`Attorneys for Plaintiffs, COUNTY OF MADERA, MADERA COUNTY MAINTENANCE
`DISTRICT 28 (RIPPERDAN) and MADERA COUNTY MAINTENANCE DISTRICT 36
`(EASTIN ARCOLA)
`
`IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`IN AND FOR THE COUNTY OF SAN FRANCISCO ‘
`
`060 §2
`)
`) CASE NO
`)
`
`.
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`0 «.5 8
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`.
`7 6 1 8
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`I
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`) Date Filed:
`)
`) COMPLAINT FOR DAMAGES,
`) AND OTHER RELIEF
`) (1) STRICT PROD LIABILITY
`)
`(DESIGN DEFECT),
`) (2) STRICT PROD LIABILITY
`)
`(FAILURE TO WARN)
`) (3) NUISANCE;
`) (4) TRESPASS; and
`) (5) NEGLIGENCE.
`)
`)W
`
`,
`
`) )
`
`) )
`
`COUNTY OF MADERA, MADERA COUNTY
`MAINTENANCE DISTRICT 28 (RIPPERDAN) and
`MADERA COUNTY MAINTENANCE DISTRICT 36
`
`(EASTIN ARCOLA)
`
`Plaintiffs,
`
`vs.
`THE DOW CHEMICAL COMPANY; SHELL OIL
`COMPANY, individually and doing business aS
`SHELL CHEMICAL COMPANY; OCCIDENTAL
`CHEMICAL CORPORATION; J.R. SIMPLOT
`COMPANY; PUREGRO COMPANY; NUTRIEN
`AG SOLUTIONS,INC,WILBUR—ELLIS
`COMPANY LLC; and DOES 1 through 300,
`INCLUSIVE,
`
`Defendants.
`
`Plaintiffs COUNTY OF MADERA, MADERA COUNTY MAINTENANCE DISTRICT
`
`28 (RIPPERDAN) and MADERA COUNTY MAINTENANCE DISTRICT 36 (EASTIN
`
`ARCOLA) hereby allege as follows, based on information and belief and investigation of
`
`counsel:
`
`1.
`
`SUMMARY OF THE CASE
`
`1.
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`Plaintiff COUNTY OF MADERA (“Plaintiff”), by and through its duly formed
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`MAINTENANCE DISTRICT 28 (RIPPERDAN) (hereafter, “MD28-Ripperdan”) and
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`-1-
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`COIVIPLAINT FOR DAMAGES AND OTHER RELIEF
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`MAINTENANCE DISTRICT 36 (EASTIN ARCOLA) (hereafter, “MD3 6—Eastin Arcola”) and co-
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`plaintiffs herein, owns and operates public water systems that provide drinking water to residents
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`and businesses in the unincorporated places in the County of Madera known as Ripperdan,
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`California, and Eastin Arcola, California, respectively. Plaintiffs seek to recover by this action
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`the substantial costs necessary to protect the public and restore certain of their drinking water
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`supply wells, which are contaminated 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/0r 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 drinking water supply-wells owned and
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`operated by Plaintiffs. TCP has migrated through the subsurface and into the groundwater, and
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`now contaminates the water pumped from certain of Plaintiffs’ wells.
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`3.
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`The defendants in this action are the manufacturers, distributors and releasors of
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`the TCP Products that caused the contamination of Plaintiffs’ water supply. Among other-things,
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`the manufacturer defendants knowingly and willfully manufactured, promoted and sold TCP
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`Products when they knew or reasonably should have known that TCP would reach groundwater,
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`pollute drinking water supplies, render drinking water unusable and unsafe, and threaten public
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`health and welfare, as it has done with respect to Plaintiffs’ water supply.
`
`4.
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`Plaintiffs file this lawsuit to recover compensatory and all other damages,
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`including all necessary funds to compensate Plaintiffs for the costs of designing, constructing,
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`installing, operating and maintaining the treatment facilities and equipment required to comply
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`with state and federal safe drinking water laws and to remove TCP from their water supply, and
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`to ensure that the responsible parties bear such expense, rather than Plaintiffs and their
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`ratepayers.
`
`II. THE PARTIES
`
`5.
`
`Plaintiff COUNTY OF MADERA is a California general law county that, by and
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`through Plaintiff MADERA COUNTY MAINTENANCE DISTRICT 28 (RIPPERDAN) and
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`MADERA COUNTY MAINTENANCE DISTRICT 36 (EASTIN ARCOLA), which are
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`-2-
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

`

`maintenance districts duly formed pursuant to the Government Code, owns and operates public
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`water systems that provide drinking water to residents and businesses in the unincorporated
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`places in the County of Madera known as Ripperdan, California, and Eastin Arcola, California,
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`respectively. Plaintiffs’ public water systems include, among other elements, drinking water
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`production wells that draw from one or more groundwater aquifers, well sites, associated
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`pumping, hydro-pneumatic tanks, and distribution systems and equipment, all of which will be
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`referred to collectively in this Complaint as Plaintiffs’ “Water Systems.” Plaintiffs’ Water
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`Systems include the right of Plaintiffs to extract and use groundwater from their wells to supply
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`drinking water to residents and business within each such System’s service area. Plaintiffs have
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`a significant property interest in the waters they extract and use from the Water Systems’ wells.
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`The past, present and continuing contamination of such waters by TCP constitutes physical
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`injury to such waters for which Plaintiffs are entitled to, and Plaintiffs hereby do, seek damages
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`and other appropriate relief.
`
`6.
`
`The following defendants designed, manufactured, formulated, marketed,
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`promoted, distributed, sold (directly or indirectly), applied, discharged, disposed of and/or
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`released the TCP Products that are sources of the TCP that contaminates Plaintiffs’ wells and
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`water supply.
`
`7.
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`Defendant THE DOW CHEMICAL COMPANY (“Dow”) is a Delaware
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`corporation with its principal place of business in Midland, Michigan, which at all times relevant
`
`to this action was doing business in California.
`
`8.
`
`Defendant SHELL OIL COMPANY, individually and doing business as SHELL
`
`CHEMICAL COMPANY (“Shell”) is a Delaware corporation with its principal place of business
`
`in Houston, Texas, which at all times relevant to this action was doing business in California.
`
`9.
`
`Defendant OCCIDENTAL CHEMICAL CORPORATION, individually and as
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`successor by merger to Occidental Chemical Agricultural Products, Inc. (formerly known as
`
`Occidental Chemical Company, successor by merger to Associated Farm Supplies)
`
`(“Occidental”), is a New York corporation with its principal place of business in Dallas, Texas,
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`which at all times relevant to this action was doing business in California.
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`-3-
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`COIVIPLAINT FOR DAMAGES AND OTHER RELIEF
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`10.
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`Defendant NUTRIEN AG SOLUTIONS, INC. (formerly known as Crop
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`Production Services, Inc.), individually and as successor in interest to Western Farm Service,
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`Inc. (formerly known as Cascade Farm Services, Inc.) and as successor in interest to UAP
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`Distribution, Inc. (individually and doing business as United Agri Products West, UAP West,
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`and United Agri Products, and as successor in interest to United Agri Products Financial
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`Services, Inc.) (“Nutrien”), is a Delaware corporation with its principal place of business in
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`Loveland, Colorado, which at all times relevant to this action was doing business in California.
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`1 1.
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`Defendant PUREGRO COMPANY (“PureGro”) is a California corporation with
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`its principal place of business in San Ramon, California, which at all times relevant to this action
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`was doing business in California.
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`12.
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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, 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.
`
`13.
`
`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
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`relevant to this action was doing business in California.
`
`14.
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`The names and capacities, whether individual, corporate or otherwise, of
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`defendants named herein as DOES 1 through 300, inclusive, are unknown at this time to Plaintiff
`
`who therefore sues said defendants by such fictitious names. Plaintiff will amend the Complaint
`
`to show the true names and capacities of said defendants when their identities and capacities
`
`have been ascertained.
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`15.
`
`The defendants named in paragraphs 7-13 above and defendant DOES 1 through
`
`300, inclusive, are referred to collectively herein as “Defendants.”
`
`16.
`
`Defendants Dow and Shell and DOES 1 through 100, inclusive, are referred to
`
`collectively herein as “Manufacturer Defendants.”
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`-4-
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`17.
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`Defendants Occidental, Simplot, PureGro, Nutrien, Wilbur-Ellis and DOES 101
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`through 200, inclusive, are referred to collectively herein as “Distributor Defendants.”
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`18.
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`DOES 201 through 300, inclusive, are referred to collectively herein as
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`“Owner/Operator Defendants.”
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`19. 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
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`of the Defendants committed or authorized such act or omission, or failed to adequately
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`supervise or properly control or direct their employees while engaged in the management,
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`direction, operation or control of the affairs of Defendants, and did so while acting within the
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`scope of their duties, employment or agency.
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`III.
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`JURISDICTION AND VENUE
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`20.
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`The California Superior Court has jurisdiction over this action pursuant to
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`California Constitution Article VI, Section 10, which grants the Superior Court “original
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`jurisdiction in all cases except those given by statute to other trial courts.” The statutes under
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`which this action is brought do not grantjurisdiction to any other trial court.
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`21.
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`This Court has jurisdiction over Defendants because, based on information and
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`belief, each is a corporation or other business that has sufficient minimum contacts in California,
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`is a citizen of California, or otherwise intentionally availed itself of the California market either
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`through the distribution or sale of TCP Products in the State of California or by having a
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`manufacturing, distribution or other facility located in California so as to render the exercise of
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`jurisdiction over it by the California courts consistent with traditional notions of fair play and
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`substantial justice.
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`22. 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. ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION
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`A.
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`The Contaminant: TCP.
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`23.
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`TCP does not occur naturally. Rather, TCP is and/or was produced as a
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`byproduct of certain chemical processes used to produce allyl chloride, epichlorohydrin and
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`-5-
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`COlVIPLAlNT FOR DAMAGES AND OTHER RELIEF
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`synthetic glycerin, which, in turn, are and/or were used in connection with the manufacture of
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`certain commercial products. TCP is also known as allyl trichloride, glycerol trichlorohydrin,
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`and/or trichlorohydrin. Because only certain large-scale industrial chemical processes involving
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`heat and chlorine produce TCP, only a few companies in the United States are the source of
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`TCP.
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`24.
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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
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`(microscopic worms that infest plant roots) that were marketed primarily, although not
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`exclusively, from the 19405 through the 19805. The TCP present in TCP-containing soil
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`fumigants had, and has, no beneficial purpose in connection with the application of such soil
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`fumigants to crops.
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`25.
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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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`26.
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`TCP has unique characteristics that cause extensive environmental contamination
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`and a corresponding threat to the public health and welfare. In particular, TCP does not readily
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`adsorb (i.e., stick) to soil particles. Rather, once it is applied, discharged, disposed of or
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`otherwise released into or onto land, it is readily transported through the subsurface and into
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`groundwater. In addition, TCP is known to be persistent, i.e., it does not readily biodegrade or
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`chemically degrade naturally in the subsurface. There is a lengthy delay, based on site specific
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`factors, between the time TCP Products are released into the subsurface environment and the
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`time TCP accumulates in groundwater in sufficient quantities and locations to contaminate
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`public drinking water resources. In short, TCP migrates readily through soil and groundwater,
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`resists natural degradation, and is difficult and costly to remove from groundwater.
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`27.
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`TCP presents a significant threat to public health and welfare. TCP is known to
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`cause liver and kidney damage and blood disorders in animals exposed to TCP via ingestion.
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`TCP has also been shown to cause cancer in animals. It is listed by the United States
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`Environmental Protection Agency as a probable human carcinogen, and is known to the State of
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`California to cause cancer for purposes of the Safe Drinking Water and Toxic Enforcement Act
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`of 1986.
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`B.
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`Regulatory Standards Applicable To TCP.
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`28.
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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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`29.
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`The Division of Drinking Water of the California State Water Resources Control
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`Board (“DDW”), formerly part of the California Department of Public Health (“DPH”), is the
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`state agency responsible for regulating public water systems, including Plaintiffs’ Water System.
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`30.
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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,
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`or 0.7 ppt. PHGs for carcinogens or other substances that may cause chronic disease are based
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`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
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`health.
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`31.
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`The State Water Resources Control Board (“SWRCB”), of which DDW is a
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`division, has formally adopted 21 Maximum Contaminant Level (“MCL”) for TCP of 0.005 ug/L
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`or 5 ppt. An MCL is an enforceable regulatory standard that establishes the maximum
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`permissible level of a contaminant in drinking water. Plaintiffs, as the owners/operators of a
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`California public water system, are 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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`32.
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`The Manufacturer Defendants, each of whom has promoted the use of TCP
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`Products, knew or should have known of the grave harm and threat to public health and welfare
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`and the environment represented by proliferating use of TCP, including (among other things):
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`widespread pollution of groundwater with TCP, contamination of public and private drinking
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`water supplies by this harmful compound, drinking water supplies rendered unfit and unusable
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`for consumption and increased costs to public water suppliers and their customers.
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`33.
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`The Manufacturer Defendants had a duty and breached their duty to evaluate and
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`test such TCP Products adequately and thoroughly to determine their environmental fate and
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`-7-
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`transport characteristics and potential human health and environmental impacts before they
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`produced and sold such TCP Products. They also had a duty and breached their duty to
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`minimize the environmental harm caused by TCP. The Manufacturer Defendants, and each of
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`them, failed to adequately evaluate and test their TCP Products, or otherwise ensure that TCP
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`would not contaminate drinking water. As a direct, indirect and proximate result of these
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`failures, TCP contaminated, and continues to contaminate, Plaintiffs’ Water System and the
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`groundwaters that supply it.
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`34.
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`At all times relevant to this action, the Manufacturer Defendants knew, or
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`reasonably should have known, among other things, that: (a) TCP is toxic; and (b) when applied,
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`discharged, disposed of or otherwise released into or onto land, TCP readily migrates through the
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`subsurface, mixes easily with groundwater, resists natural degradation, renders drinking water
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`unsafe and/or non-potable, and requires significant expenses to remove from public drinking
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`water supplies.
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`35.
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`Despite knowing or having reason to know that long-term groundwater
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`contamination, pollution of water supplies, and threats to public health and safety were inevitable
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`consequences of the foreseeable and intended uses of their TCP Products without proper
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`precautionary measures, including but not limited to adequate warnings, the Manufacturer
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`Defendants nonetheless promoted, marketed and/or sold TCP Products in California and
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`elsewhere.
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`36.
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`At all times relevant herein, the Manufacturer Defendants, and each of them,
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`knew or should have known that feasible measures could have been implemented to remove or
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`substantially reduce the amount of TCP in their finished TCP containing soil fumigant products
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`without decreasing the ability of these products to control nematodes, but they failed to
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`implement such measures.
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`37.
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`At all times relevant herein, the Manufacturer Defendants, and each of them,
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`knew or should have known that TCP is a hazardous waste that should be disposed of safely and
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`separately from non-hazardous wastes. Nonetheless, the Manufacturer Defendants caused or
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`allowed TCP — a hazardous waste product created by their chemical manufacturing processes —
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`-s-
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`COlVIPLAlNT FOR DAMAGES AND OTHER RELIEF
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`to be included in their TCP Products, including soil fumigant products. The Manufacturer
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`Defendants instructed users to apply their TCP-containing soil fumigant products to agricultural
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`fields, where these Defendants knew or should have known that TCP would contaminate
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`groundwater.
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`38.
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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
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`knowing or having reason to know of the risks to public drinking water resources posed by the
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`discharge, disposal or release into or onto land of TCP Products, the Manufacturer Defendants
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`unreasonably failed to provide any adequate warnings regarding the known and foreseeable risks
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`of TCP to customers, end-users, regulators, public officials and/or the public, including
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`Plaintiffs.
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`39.
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`In addition to the negligent and/or reckless conduct alleged herein, the
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`Manufacturer Defendants, by agreement and/or tacit understanding among them, each knowingly
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`pursued or took an active part in a common plan, design and/or conspiracy to market and/or
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`promote products they knew to be dangerous to the environment. In particular, these Defendants
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`engaged injoint activity for the specific purpose of suppressing, concealing, and/or minimizing
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`information regarding the toxicity and persistence of TCP. These Defendants’ common plan,
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`design and/or conspiracy, and the acts taken in furtherance of such common plan, design and/or
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`conspiracy, are a direct and proximate cause of the TCP contamination in Plaintiffs’ Water
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`System.
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`D.
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`The Impact of TCP on Plaintiffs’ Water Systems.
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`40.
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`TCP has been detected in varying amounts at varying times in water extracted
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`from certain of Plaintiffs’ wells (referred to herein as the “Contaminated Wells”). TCP has been
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`detected and/or is present in the Contaminated Wells at levels substantially above the applicable
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`PHG and/or MCL for TCP. The detection and/or presence of TCP, and the threat of further
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`detection and/or presence of TCP, in the Contaminated Wells and in wells Plaintiffs may acquire,
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`use or construct in the future, in varying amounts and at varying times has resulted in, and will
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`continue to cause, significant injuries and damages to the Contaminated Wells and Plaintiffs’
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`2 Water Systems.
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`41.
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`The injuries to Plaintiffs caused by Defendants’ conduct as alleged herein
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`constitute an unreasonable interference with, and physical damage to, the limited subterranean
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`supplies of fresh drinking water on which Plaintiffs’ Contaminated Wells depend. Plaintiffs’
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`interest in protecting the quality of its limited drinking water supplies constitutes a personal
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`reason for seeking damages sufficient to restore such drinking water supplies to their pre-
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`contamination condition.
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`E.
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`Summary of Allegations.
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`42.
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`At all times relevant to this action:
`
`(a)
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`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)
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`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 Plaintiffs’
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`Contaminated Wells. 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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`(c)
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`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 Wells, causing pollution, contamination, and substantial and
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`-10-
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`CONIPLAINT FOR DAMAGES AND OTHER RELIEF
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`continuing damage to the Contaminated Wells and the groundwaters that
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`supply them, as well as wells Plaintiffs may acquire, use or construct in
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`the future, causing appreciable injury to Plaintiffs and damaging Plaintiffs
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`at such times and in amounts to be proved at trial.
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`43.
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`At all times relevant to this action, TCP Products manufactured, sold, and/or
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`released by Defendants caused and/or contributed to the TCP contamination alleged herein.
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`44.
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`At all times relevant to this action, the TCP Products purchased or otherwise
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`acquired by the Owner/Operator Defendants were TCP Products manufactured, marketed,
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`distributed and/or sold by one or more of the Manufacturer and Distributor Defendants named
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`herein.
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`45.
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`Defendants, and each of them, arejointly 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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`46.
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`Plaintiffs reallege each of the preceding paragraphs, and by this reference
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`incorporate each such paragraph as though set forth in full.
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`47.
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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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`48.
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`The Manufacturer and Distributor Defendants, and each of them, knew that such
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`TCP Products were to be purchased and used without inspection for defects.
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`49.
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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
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`Defendants were applied, discharged, disposed of or otherwise released into or onto lands in the
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`vicinity of Plaintiffs’ Contaminated Wells.
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`50.
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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
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`Products.
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`CONWLADWFORDAMAGESANDOTHERRELEF
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`51.
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`Soil fumigant products containing TCP are, and at all relevant times were,
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`designed to be applied, injected and/or released directly into soil. Leaks, spills and releases of
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`soil fumigant products containing TCP were also inherent in the normal, foreseeable uses of such
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`products, including the transportation, loading, unloading, storage, handling and application of
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`such products.
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`52.
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`The Manufacturer and Distributor Defendants knew, or should have known, that
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`use of TCP Products other than soil fumigants in their intended manner would result in the
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`spillage, discharge, disposal or release of TCP into or onto land.
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`53.
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`The TCP Products used in the vicinity of Plaintiffs’ Contaminated Wells were
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`defective in design and unreasonably dangerous products because, among other things:
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`(a)
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`The TCP contained in soil fumigant products containing TCP served no
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`beneficial purpose.
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`(b)
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`TCP causes extensive groundwater contamination when it, or products
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`containing it, are used in their foreseeable and intended manner.
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`(c)
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`TCP poses significant threats to the public health and welfare and the
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`environment.
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`(d)
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`Defendants failed to conduct reasonable, appropriate or adequate scientific
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`studies to evaluate the environmental fate and transport and potential
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`human health effects of TCP.
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`54.
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`At all times relevant to this action, TCP Products were dangerous to an extent
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`beyond that which would be contemplated by the ordinary consumer, and/or the risk of harm to
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`public health and welfare and the environment posed by TCP as a component of TCP Products
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`outweighed the benefit(s), if any, of including TCP as a component of such Products and/or the
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`costs to Defendants of reducing or eliminating such risk.
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`55.
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`As a direct and proximate result of the defects previously described, Plaintiffs”
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`Contaminated Wells and the groundwaters that supply them have been, and continue to be,
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`contaminated with TCP, causing physical damage to such groundwaters and causing Plaintiffs
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`significant injury and property damage. Restoration, repair and/or remediation of the property
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`-12-
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`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`O\U‘l-I>UJ
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`damage alleged herein has required Plaintiffs, and will continue to require Plaintiffs, to incur
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`substantial costs and expenses in an amount to be proved at trial.
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`56.
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`The Manufacturer and Distributor Defendants are strictly, jointly and severally
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`liable for all such damages, and Plaintiffs are entitled to recover all such damages in this action.
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`57.
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`The Manufacturer Defendants knew that it was substantially certain that their
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`alleged acts and omissions described above would cause injury and damage, including TCP
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`contamination of drinking water supplies. The Manufacturer Defendants committed each of the
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`above-described acts and'omissions knowingly, willfully and with oppression, fraud and/or
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`malice. Such conduct is reprehensible, despicable and was performed to promote sales of TCP
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`Products and maximize profits in conscious disregard of the probable dangerous consequences of
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`that conduct and its foreseeable impact upon health, property and the environment, including
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`Plaintiffs’ Water Systems and Contaminated Wells. Therefore, Plaintiffs request an award of
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`exemplary damages in an amount that is sufficient to punish these Defendants and that fairly
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`reflects the aggravating circumstances alleged herein. After the completion of additional
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`investigation and discovery, Plaintiffs may seek leave of court to amend this Complaint to allege
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`a claim for exemplary damages against additional defendants if warranted by the facts.
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`WHEREFORE, Plaintiffs pray judgment against Defendants as set forth hereafter.
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`SECOND CAUSE OF ACTION
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`(Strict Products Liability Based On Failure To Warn Against The Manufacturer And
`Distributor Defendants)
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`58.
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`Plaintiffs reallege each of the preceding paragraphs, and by this reference
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`incorporate each such paragraph as though set forth in full.
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`59.
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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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`60.
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`The Manufacturer and Distributor Defendants, and each of them, knew that such
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`TCP Products were to be purchased and used without inspection for defects.
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`61.
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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
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`-13-
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`COlVIPLAINT FOR DAMAGES AND OTHER RELIEF
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`O\U‘l-¥>
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`Defendants were applied, discharged and/or disposed of in or otherwise released into or onto
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`lands in the vicinity of Plaintiffs’ Contaminated Wells.
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`62.
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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 products.
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`63.
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`Soil fumigant products containing TCP are, and at all relevant times were,
`
`designed to be applied, injected and/or released directly into soil. Leaks, spills and releases of
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`soil fumigant products containing TCP were also inherent in the normal, foreseeable uses of such
`
`products, including the transportation, loading, unloading, storage, handling, and application of
`
`such products.
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`64.
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`The Manufacturer and Distributor Defendants knew, or should have known, that,
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`use of TCP Products other than soil fumigants in their intended manner would result in the
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`spillage, discharge, disposal or release of TCP into or onto land.
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`65.
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`The TCP Products used in the vicinity of Plaintiffs’ Contaminated Wells were
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`defective in design and unreasonably dangerous products for the reasons set forth in paragraph
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`53 above, among other things.
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`66.
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`Despite the known and/or foreseeable environmental and human health hazards
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`associated with the application or release of TCP Products in the vicinity of subterranean
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`drinking water supplies, including contamination of public drinking water supplies with TCP, the
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`Manufacturer and Distributor Defendants, and each of them, failed to provide adequate warnings
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`of, or take any other precautionary measures to mitigate, those hazards.
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`67.
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`In particular, the Manufacturer and Distributor Defendants failed to describe such
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`hazards or provide any precautionary statements regarding such hazards in the labeling of their
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`TCP Products or otherwise.
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`68.
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`As a direct and proximate result of the Manufacturer and Distributor Defendants’
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`failure to warn of the hazards posed by application or release of TCP Products in the vicinity of
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`subterranean drinking water supplies that were, or should have been, known to them, Plaintiffs’
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`Contaminated Wells and the groundwaters that supply them have been, and continue to be,
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`contaminated with TCP, causing physical damage to such groundwaters and causing Plaintiffs
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`-14-
`
`COMPLAINT FOR DAMAGES AND OTHER RELIEF
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`

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`OU'I—PDJN
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`significant injury and property damage. Restoration, repair and/or remediation of the property
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`damage alleged herein has required Plaintiffs, and will continue to require Plaintiffs, to incur
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`substantial costs and expenses in an amount to be proved at trial.
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`69.
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`The Manufacturer and Distributor Defendants ar