McCarty et al v. Arch Wood Protection, Inc. et al
MEMORANDUM OPINION & ORDER: Defendants' Arch Wood Protection, Inc., Chemical Specialties, Inc., Osmose Inc. Motion to Dismiss 22 be OVERRULED. This is an INTERLOCUTORY and NON-APPEALABLE ORDER. Signed by Judge Henry R. Wilhoit, Jr on 6/14/2012.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT IF KENTUCKY
Civil Action No.11-109-HRW
MEMORANDUM OPINION AND ORDER
ARCH WOOD PROTECTION, INC., et al.,
This matter is before the Court upon Defendants' Arch Wood Protection,
Inc., Chemical Specialties, Inc. and Osmose, Inc. Motion to Dismiss [Docket No.
22]. For the reasons stated herein, the Court finds that, at this juncture, dismissal
is not warranted.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Llyod McCarty was employed by Kentucky Electric Power on its
line crew from 1989 until October 2010. During his employment Mr. McCarty
worked on and with utility poles and cross-arms which had been treated with the
liquid wood preservative Chromated Copper Arsenate ("CCA").
In March 2011, he was diagnosed with myriad health problems, which
culminated in the surgical removal of his left lung. Plaintiffs claim that Mr.
McCarty's health problems were caused by his exposure to the arsenic in the CCA
during his employment at Kentucky Electric Power.
Plaintiffs filed the instant lawsuit against Arch Wood Protection, Inc.,
Osmose, Inc., Chemical Specialities, Inc., Koppers, Inc., Langdale Forest
Products, Inc. and T.R. Miller Company, Inc., alleging that these entities had a
duty to warn Mr. McCarty of the dangers of CCA but failed to do so. Plaintiff
Beth McCarty alleges loss of consortium.
In their Complaint, Plaintiffs identify Arch Wood Protection, Inc., Osmose,
Inc. and Chemical Specialities, Inc. as the manufacturers of CCA who sold the
CCA to Koppers, Inc., Langdale Forest Products, Inc. and T.R. Miller Mill
Company, Inc. who, in tum, used the CCA to treat wooden utility poles which
were, ultimately, sold to Kentucky Electric Power.
The specific allegations in the Complaint are:
The Defendants negligently, willfully and with reckless
disregard for the health and safety of Plaintiff Lloyd McCarty,
failed to affix permanent warnings on the CCA treated utility
poles and cross-arms that described the nature and extent of the
proven hazards of exposure to the arsenic which the
Defendants knew, or should have known, was toxic and
carcinogenic. [Docket No. 1,Complaint at,-r 15].
There were no warnings on the CCA treated utility poles
or cross-arms which described the nature and extent of
the health hazards caused by exposure to arsenic,
chromium, and copper resulting from sawing, drilling,
handling, and the burning of CCA treated utility poles.
[Docket No. 1,Complaint at ~ 16].
The failure of the Defendants to put a permanent
warning label on the CCA treated utility poles, including
the universal symbol of a "Skull and Crossbones" with
the words "DANGER" and "POISON," knowing utility
workers were at risk, is and was a direct and proximate
cause of the toxic effects caused by Mr. McCarty's
exposure to arsenic, chromium, and copper on and in the
CCA treated wood. [Docket No. 1,Complaint at ~ 20].
The CCA treated utility poles and cross-arms were
defective and unreasonably dangerous in the following
manner: (a) Defendants failed to permanently label the
CCA treated utility poles and cross-arms to give
reasonable warnings about the nature and extent of the
hazards of exposure to CCA on and in the CCA treated
utility poles and cross-arms; or (b) Defendant give
reasonably complete instructions on the proper use of the
product; and (c) Defendants could have made such
permanent warning labels or instructions available to
Plaintiff Lloyd McCarty because Defendants knew or
should have known the nature and extent of the hazards
presented by arsenic, chromium, and copper on and in
the CCA treated utility poles and cross-arms. [Docket
No. 1,Complaint at ~ 23].
Defendants Arch Wood Protection, Inc., Osmose, Inc. and Chemical
Specialities, Inc. seek dismissal of all claims against them.
STANDARD OF REVIEW
In assessing a motion brought pursuant to Rule 12(b)(6), the Court must
presume all well-pleaded factual allegations in the complaint to be true and draw
all reasonable inferences from those allegations in favor of the non-moving party.
Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Although "a complaint need
not contain 'detailed' factual allegations, its '[f]actual allegations must be enough
to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true.' " Ass'n a/Cleveland Fire Fighters v.
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. Sept.25, 2007) (citations omitted).
The Court will sustain a motion to dismiss pursuant to Rule 12(b)(6) only in
cases where there are simply not "enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569 (2007).
Defendants Arch Wood Protection, Inc., Osmose, Inc. and Chemical
Specialities, Inc. argue that, as the manufacturers of CCA, they are not liable to an
ultimate user of products treated with CCA under a failure to warn theory of
liability. Although Defendants concede there is no Kentucky jurisprudence that
directly addresses the issue of the nature, scope and extent of a chemical supplier's
duty to warn where the chemical supplier's products are used as an ingredient or
are incorporated by a manufacturer into a finished product, they rely upon
Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50 (Ky. App. 1999) in seeking
dismissal. In Mullins, the Kentucky Court of Appeals held that the manufacturer
of cab-chassis, a component part subsequently incorporated by final-stage
manufacturer into coal dump truck, could not be held strictly liable for failure to
warn of dangers associated with subsequent modifications of cab-chassis, in suit
for death and injuries caused in collision with dump truck, where jury did not find
cab-chassis defective or unreasonably dangerous
In doing so, the Mullins Court relied, in part, upon the Sixth Circuit decision
in Childress v. Gresen Mfg. Co., 888 F.2d 45,49 (6th Cir. 1989), which found that
"a component part supplier has no duty, independent of the completed product
manufacturer, to analyze the design of the completed product which incorporates
its non-defective component part."
Defendants urge that the Mullins analysis controls and that they did not
have a duty to warn Plaintiffs of the dangers posed by the CCA.
The Court is not persuaded. Mullins limits a manufacturer's's liability in
situations where its product, which was not defective in and of itself, was
incorporated into a larger product which was, ultimately, defective in some way.
Whereas, in this case, it is not the final product which Plaintiffs claim is the cause
of their damages, it is component itself - the CCA. Plaintiffs argue that it is not a
benign component, but, rather, a hazardous material in and of itself. As such,
Mullins is not dispositive.
Moreover, although of concern in Mullins, the practicalities of imposing a
duty to warn upon the manufacturer of a component part of a product which has
been fashioned in several stages are of no moment in this case. Indeed, as this
Court noted in discussing the burdens of requiring a manufacture to monitor the
multitude of end-uses, "[s]o long as the component part is not defective when sold
by its manufacturer, no duty to warn can attach to the manufacturer." Waterfill v.
Nat 'I Molding Co., No. 04-CV-429-KSF, 2006 WL 516840 at *2 (E.D. Ky. Mar.
Further, without the benefit of discovery, the dangers of CCA are alleged,
but have not been established at this point in the proceedings. However, the Court
finds Plaintiffs' claims are not implausible. Plaintiffs' Complaint passes the
Twombly-test. They have put forth "enough facts to raise a reasonable
expectation that discovery will reveal evidence of [the requisite elements of his
This is not to say that Plaintiffs will, ultimately, prevail. However,
dismissal, at this juncture, would be premature. Accordingly, IT IS HEREBY
ORDERED that Defendants' Arch Wood Protection, Inc., Chemical Specialties,
Inc. and Osmose, Inc. Motion to Dismiss [Docket No. 22] be OVERRULED.
This is an INTERLOCUTORY and NON- APPEALABLE ORDER.
This 14thday of June 2012.
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