Toxic tort against chemical companies can proceed after Pa. Supreme Court denies defense review petition

Pennsylvania’s highest court has denied a defense request to review a toxic

tort case brought by a Lancaster County woman against three chemical makers on behalf of her ailing husband, a move that has allowed the litigation to proceed in the lower courts.

Sandra Cooper is suing on behalf of her husband, Gene, who she contends suffers from a degenerative brain disorder linked to his exposure to a toxic agent called trichloroethylene while on the job.

The woman claims her husband sustained severe brain injuries due to his exposure to the chemical, also known as TCE, which is a colorless liquid with a sweet odor that is often used as a solvent to remove grease from metal parts, but is also used in adhesives, paint removers and other items.

The related chemicals Gene Cooper was allegedly exposed to on the job were 1-1-1-trichloroethane and methylene chloride.

The exposure, which allegedly occurred during Gene Cooper’s time working for Armstrong World Industries in Lancaster County, is said to have led to the man developing toxic solvent encephalopathy and Parkinson’s Syndrome.

The plaintiff initially filed suit on her husband’s behalf in the summer of 2010 at Philadelphia’s Common Pleas Court.

A trial judge, however, subsequently agreed to grant summary judgment to the defendants in the litigation, Breentag Northeast Inc., Mallinckrodt Baker Inc. and Dow Chemical Company.

The defense had argued that the civil action was barred by Pennsylvania’s statute of limitations.

The trial judge agreed, and dismissed the case in April 2011, records show.

In her September 2011 opinion, Philadelphia Common Pleas Court Judge Jacqueline Allen wrote that the court’s ruling to dismiss the litigation without prejudice and deny the plaintiff’s motion to amend should be sustained because Sandra Cooper didn’t file her complaint within the two-year statute of limitations, despite the plaintiff’s assertion that the delay was due to the defendants’ fraudulent concealment.

The plaintiff had argued that her husband was exposed to TCE at work from 1974 to 2004, and that Gene Cooper was declared mentally incompetent in 2006.

Procedural rules would have required Sandra Cooper to file her suit sometime in 2008, the record shows.

“This action was belatedly filed in December 2009 and dismissed accordingly,” Allen wrote in her September 2011 opinion.

The record further shows that the chemical companies attempted to remove the case to the Lancaster County Common Pleas Court, but that the transfer request was denied in December 2010 by Philadelphia Common Pleas Court Judge Patricia McInerney.

It was in late April that Allen, the other Philadelphia jurist, denied a motion by Sandra Cooper to amend her second amended complaint.

Allen simultaneously denied the plaintiff’s motion for reconsideration.

Cooper’s attorney, George Chada, appealed the decision to toss the civil action to the Pennsylvania Superior Court in early May 2011.

In late January of this year, the appellate judges overturned both of the lower court’s rulings, writing that the trial court abused its discretion when it denied Cooper’s request to amend her pleadings.

“Because the rules of civil procedure provide for the liberal granting of motions to amend pleadings, and because there is an arguable issue of fact, we conclude that it was an abuse of discretion to deny the motion and dismiss this matter with prejudice at this juncture,” the appeals judges had written.

In her proposed third amended complaint, Cooper sought to plead facts that showed her husband’s diagnosis was impeded by fraudulent data contained in reports that purportedly showed a causal relationship between TCE exposure and permanent neurological damage and that the defendants knew of the dangers of TCE exposure.

The plaintiff argued on appeal that these revelations would apply either the discovery rule or the fraudulent concealment doctrine and thereby toll the statute of limitations.

The Superior Court ultimately agreed with Cooper’s argument.

In addition to her argument that Gene Cooper was exposed to TCE during his many years at Armstrong World Industries, the woman specifically claims that her husband was exposed to a substantial amount of TCE during a Sept. 26, 2003, chemical spill at his place of employment.

Sandra Cooper alleges that the defendants knew her husband began to experience adverse effects from the spill on that very same night.

Gene Cooper was placed on disability eight months later.

Sandra Cooper says she and her husband were unaware at the time of the extent of the defendants’ negligence, since Gene Cooper had worked around the chemicals for three decades.

The case was returned to the Philadelphia Court of Common Pleas after the Superior Court reinstated the litigation.

The defendants subsequently petitioned to have the high court intervene and allow the companies to appeal the Superior Court’s ruling, but the justices denied the motion on Nov. 18, court records show.