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Brown v. Arch Wood Protection, Inc.

United States District Court, E.D. Kentucky, Northern Division, Ashland

February 13, 2014



CANDACE J. SMITH, Magistrate Judge.

Plaintiff Kevin W. Brown filed this product liability action against Defendants Arch Wood Protection, Inc. (Arch), Osmose, Inc. (Osmose), Koppers Inc. (Koppers), Langdale Forest Products Company (Langdale), T.R. Miller Mill Co., Inc. (T.R. Miller), and Chemical Specialties, Inc. (CSI). (R. 1). Before the Court are Defendants Arch, Osmose, Koppers, and T.R. Miller's Joint Motion to Dismiss (R. 11), and CSI's Motion to Dismiss and Motion for Oral Argument (R. 3, 5). Plaintiff has filed his respective Responses (R. 21, 32), to which these Defendants have filed Replies (R. 29, 36). This matter has been referred to the undersigned for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (R. 43). For the reasons that follow, CSI's Motion for Oral Argument will be denied, [1] and it will be recommended that the Motions to Dismiss be denied.


Plaintiff Kevin Brown has worked as a pole climber on a line crew for Kentucky Power Company (Kentucky Power) since 1981.[3] ( See R. 1, at ¶ 12). Brown claims he was exposed to toxic levels of arsenic contained in chromated copper arsenate (CCA)-a substance used to preserve the wood in utility poles and cross-arms-during his employment at Kentucky Power. ( Id. at ¶¶ 4, 13). Brown was allegedly exposed to CCA while handling, sawing, and drilling CCA-treated wood as part of his employment duties, as well as through fighting fires on the CCA-treated utility poles. ( Id. at ¶ 14). Brown claims "he was poisoned" by his exposure to arsenic in the CCA-treated utility poles and that he has suffered health problems. ( Id. at ¶¶ 13, 33, 47).

Brown alleges that Defendants Arch, Osmose and CSI manufactured CCA. ( Id. at ¶ 2). He further alleges that from 1981 to 2013, Defendants Koppers, Langdale, and T.R. Miller purchased the CCA preservative from Arch, Osmose and CSI to treat utility poles and cross-arms that were sold to Kentucky Power. ( Id. at ¶¶ 3, 45). Brown claims that Arch, Osmose and CSI knew of the health hazards caused by CCA exposure, but failed to warn of its danger and deceptively persuaded the EPA to eliminate the proposed mandatory warning labels for CCA treated wood. ( Id. at ¶¶ 15, 17-19, 21-27, 31). In addition, Brown asserts that despite knowing of the hazards of CCA exposure, Arch, Osmose and CSI represented that CCA treated wood could be handled in the same manner as untreated wood. ( Id. at ¶¶ 30, 31, 34). Brown further alleges that all Defendants knew or should of known of the dangers associated with CCA exposure, yet failed to warn of its hazards, to his injury. ( Id. at ¶¶ 28, 35, 37, 46-47).


When adjudicating a motion to dismiss under Rule 12(b)(6), the Court must determine whether the complaint alleges sufficient facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Although the complaint need not contain "detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

In considering a motion to dismiss, the Court is required to "accept all the Plaintiff['s] factual allegations as true and construe the complaint in the light most favorable to the Plaintiff[]." Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). The Court need not, however, accept as true legal conclusions cast in the form of factual allegations if those conclusions cannot be plausibly drawn from the facts, as alleged. See Iqbal, 556 U.S. at 678.


A. Plaintiff's Complaint Sufficiently Alleges the Defendants' Products Caused Him Harm

Defendants Arch, Osmose, Koppers, T.R. Miller and CSI assert Plaintiff failed to properly allege that they manufactured, sold, or distributed the specific product that allegedly caused his injury, and therefore they are entitled to be dismissed from this action. (R. 3, at 3-7; R. 11, at 6-8). However, Plaintiff maintains, and the Court agrees, that he has adequately pled that the moving Defendants manufactured and distributed the product causing his injury.

Plaintiff has asserted a failure to warn claim against Defendants. "A threshold requirement of any products-liability claim is that the plaintiff assert that the defendant's product caused the plaintiff's injury." Smith v. Wyeth, Inc., 657 F.3d 420, 423 (6th Cir. 2011), cert. denied, ___ U.S. ____ , 132 S.Ct. 2103 (Apr. 30, 2012) (citing Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970)). Thus, to survive a motion to dismiss, Plaintiff must have asserted sufficient allegations to allow at least a reasonable inference that these Defendants made, sold or distributed the product causing his injury. In re Darvocet, 856 F.Supp.2d 904, 908 (E.D. Ky. 2012).

Plaintiff makes the following allegations in his complaint:

2. [Arch, Osmose, and CSI] manufactured the arsenic-based pesticide known as Chromated Copper Arsenate (CCA), which is used as a preservative to ...

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